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ELRCAllowedNotice of Motion dated 28/5/2012 (main suit pending, Embu)· [2013] KEELRC 400 (KLR)

JOSPHAT NJERU NGARI V JACOB NTHIGA NGARI & 2 OTHERS [2013] KEELRC 400 (KLR)

High Court of Kenya
18 April 2013
1,944 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This interlocutory ruling by B.N. Olao J of the High Court at Embu, dated 18 April 2013, determined a Notice of Motion dated 28 May 2012 in which Jacob Nthiga Ngari, the 1st applicant (1st defendant in the main suit and 1st plaintiff in the counter claim), sought a temporary injunction and orders of inhibition over land parcels NTHAWA/SIAKAGO/3702 to 3707, being sub-divisions of the original parcel NTHAWA/SIAKAGO/1765, against his brothers Josphat Njeru Ngari and Markson Nyaga Ngari. The applicants claimed the 2nd respondent, the eldest brother, was registered as proprietor of the original parcel in 1978 to hold it in trust for his brothers, but breached that trust by sub-dividing and selling parcel 3704 to the 1st respondent. Applying the Giella v Cassman Brown test, the court found that although the register showed the 2nd respondent as absolute proprietor, the statement of Ndathi Kaniki (the maternal uncle who gave the clan land to the parties' mother, it being registered in the minor 2nd respondent's name because the father was an alcoholic and customary law barred the mother from owning land) established a trust. The court held that trusts, including customary trusts, are overriding interests under Section 28 of the Land Registration Act, 2012, and that registration does not extinguish trusteeship obligations. The applicants established a prima facie case, irreparable injury (their only home, parents buried there), and the balance of convenience favoured them. The court granted the injunction and inhibition orders sought, with each party bearing their own costs.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

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.

Reasoning

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.

p. 3
02

Irreparable injury not compensable in damages

Holding

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.

Reasoning

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.

p. 4
03

Balance of convenience

Holding

The balance of convenience favours the applicants who are in occupation of their only home.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 3.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 63(c) and (e)
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Land Registration ActSections 28 and 68 and 69
  • Registered Land Act (Cap 300, repealed)Sections 28 and 30

Cases cited (4)

  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A. 358
  • GITHIBA VS GATHIBA
    2001 2 E.A 342
  • MUKANGU VS MBUI
    K.L.R (E & L) 1
  • MOHAMED VS COMMISSIONER OF LANDS & FOUR OTHERS
    H.C.C.C No. 423 OF 1996 MOMBASA
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.