[2018] KEELC 1034 (KLR)
The court found that the applicant failed to establish a prima facie case for the grant of an interlocutory injunction. The respondent is the registered proprietor of the suit property, and the applicant's allegations of fraud, malice, and illegality remain unproven at this stage. There was no evidence, such as a...
Source-derived case information.
- Citation
- [2018] KEELC 1034 (KLR)
- Parties
- Applicant: Dickson Bundi Njagi; Respondent: Jamleck Kiura Murathi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 44 of 2018
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Interlocutory Injunctions, Proprietary Rights, Fraud in Land Registration, Succession and Transmission of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Bundi Njagi
Applicant
Jamleck Kiura Murathi
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant has established a prima facie case for grant of an interlocutory injunction.
- 2 Whether the applicant will suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience favors the grant of an injunction.
Ratio Decidendi
The court found that the applicant failed to establish a prima facie case for the grant of an interlocutory injunction. The respondent is the registered proprietor of the suit property, and the applicant's allegations of fraud, malice, and illegality remain unproven at this stage. There was no evidence, such as a sale agreement, to support the claim that the respondent intended to dispose of the property imminently. The court emphasized that under Section 26 of the Land Registration Act, the title held by the respondent is prima facie evidence of absolute ownership, only challengeable on specific grounds which have not been substantiated by the applicant. Consequently, the applicant did...
Court Disposition
application dismissed
Orders
- The application dated 16th July 2018 is dismissed.
- Costs of the application to abide the event.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC CASE NO. 44 OF 2018
DICKSON BUNDI NJAGI............................................PLAINTIFF/APPLICANT
VERSUS
JAMLECK KIURA MURATHI.............................DEFENDANT/RESPONDENT
RULING
The application before me is the Notice of Motion dated 16th July 2018 brought under Section 1A, 1B, 3A Civil Procedure Actand Order 40 Rules 1 and 10 Civil Procedure Rules. The Applicant is seeking the following orders:
1. Spent.
2. That the defendant/Respondent, his servants, agents or anybody acting through him be restrained from selling, charging, transferring, leasing, renting out, surveying, sub-dividing, constructing or in any way dealing with the plot variously known as Kianyaga/Market/11, Baragwe/Raimu/490/11 or Plot Number 11 Kianyaga Market, or in any way interfering with the plaintiff’s use and occupation of the same until this application is heard and determined.
3. The Applicant is also seeking similar orders pending hearing and determination of the main suit herein.
The application is supported by five grounds shown on the face of that application and the affidavit of the Applicant sworn the same date. On 7th September 2018, the Respondent through the firm of Abuodha & Omino filed grounds of opposition as a rejoinder to the said application.
I have considered the said Notice of Motion and the supporting affidavit and the annextures thereto. I have also considered the grounds of opposition filed by the firm of Abuodha & Omino Advocates. The Applicant is seeking an equitable relief of injunction under Order 40 Civil Procedure Rules. Before an Applicant is granted an equitable relief, she must demonstrate the three principles as set out in the celebrated case of GIELLA VS CASSMAN BROWN & CO. LTD (1973) E.A at Page 358 as follows:
1. An Applicant must establish a prima facie case.
2. An Applicant must show that she will suffer an irreparable injury and
3. Where the Court is in doubt, it may decide the case on a balance of convenience.
The Applicant in the plaint herein dated 16th July 2018 admitted that the Respondent acquired the suit property by way of transmission through Succession Cause No. 227/1998 which was later changed to Succession Cause No. 73/2002 (Embu). He stated that the defendant is the sole proprietor of the suit property registered as KIANYAGA/MARKET/11 which he now seeks to have it cancelled on grounds of fraud, malice and illegality. The Applicant is seeking an equitable relief of injunction on grounds that the Respondent is actively seeking a buyer with the intent of defying the Applicant’s proprietary rights and those of the deceased co-owners. The Applicant has not attached any sale agreement indicating that the Respondent intents to dispose of the suit property. Though the Respondent has not filed a replying affidavit controverting the averments contained in the sworn affidavit in support of this application, it is quite evident from the pleadings and the Applicant’s admission that the Respondent is the registered proprietor of the suit property parcel No. KIANYAGA/MARKET/11.
Section 26 of the Land Registration Act provides as follows:
“The certificate of title issued by the Registrar upon registration or to a purchaser of land upon transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner subject to the encumbrances, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except:
(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme”.
The particulars of fraud, malice and illegality contained in the plaint herein remain mere allegation until the defendant is proved to have been a party to the same.
In the result, I find that the Applicant has not proved the ingredients for the grant of the orders of injunction. I therefore dismiss the application dated 16th July 2018. The costs of that application to abide the event. It is so ordered.
READ, DELIVERED and SIGNED in open Court at Kerugoya this 31st day of October 2018.
E.C. CHERONO
ELC JUDGE
31ST, OCTOBER, 2018
In the presence of:
M/S Muthama for Applicant