JOSPHAT NJERU NGARI V JACOB NTHIGA NGARI & 2 OTHERS [2013] KEELRC 400 (KLR)
The bottom line
#A Kenyan court blocked the sale and eviction of family land, ruling that a registered owner can still hold it in trust for relatives under customary law.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
The applicants established a prima facie case because there is evidence the 2nd respondent was registered in 1978 as trustee of the land for his brothers, and customary trusts are overriding interests under Section 28 of the Land Registration Act, 2012.
Although the register shows the 2nd respondent as absolute proprietor, the statement of Ndathi Kaniki and the mode of distribution among the six brothers evidence a trust. A transfer of parcel 3704 to the 1st respondent was not reflected in the proprietorship section and no Land Control Board consent was shown. The trust claim is recognised by statute, so denying a prima facie case would occasion injustice.
Irreparable injury not compensable in damages
Eviction of the applicants from land they occupy as their only home, where their parents are buried, would be irreparable injury no award of damages can compensate.
The applicants swore they live on the land with their parents buried there and face eviction threats amounting to breach of trust. This was uncontroverted; the 2nd respondent in fact confirmed their occupation by referring to a licence. Following Mohamed v Commissioner of Lands, no monetary compensation can cure such transgression.
Balance of convenience
The balance of convenience favours the applicants who are in occupation of their only home.
Even if the court were in doubt, evicting the applicants from their only known homes before trial, where their claims may be justified, would be a great injustice. The applicants' averments of occupation were uncontroverted.
Legal principles established
#- Trusts, including customary trusts, are overriding interests over registered land without being noted on the register under Section 28 of the Land Registration Act, 2012.
- Registration under the (repealed) Registered Land Act does not relieve a proprietor from any duty or obligation to which he is subject as a trustee.
Court orders
#- 1.Temporary injunction restraining the respondents, their agents and anybody acting under their instructions from evicting the applicants, selling, transferring, charging or in any other way dealing with land parcels NTHAWA/SIAKAGO/3702, 3703, 3704, 3705, 3706 and 3707 pending the hearing and determination of the suit
- 2.Orders of inhibition restraining registration of any dealings in respect of land parcels NTHAWA/SIAKAGO/3702 to 3707 pending the hearing and determination of the suit
- 3.Each party to bear their own costs of the application
- Jurisdiction invoked
- Section 63(c) and (e) of the Civil Procedure Act; Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules; Sections 68 and 69 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOSPHAT NJERU NGARI V JACOB NTHIGA NGARI & 2 OTHERS [2013] KEELRC 400 (KLR)", Case Analysis (2013). Notice of Motion dated 28/5/2012 (main suit pending, Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/400/eng@2013-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.