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ELCAllowedNotice of Motion dated 9th April, 2020 (suit relating to KJD/KITENGELA/4462)

Fredrick Gitonga Rinkanya v Geoffrey Mwaura Njoroge & 3 others [2021] KEELC 4522 (KLR)

Environment and Land Court
26 January 2021
1,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kitengela landowner who proved prior title and alleged fraud froze any sale of his land pending full trial.

What this practically means

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Executive summary

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By a Notice of Motion dated 9th April 2020, the plaintiff sought a temporary injunction and an inhibition order over land parcel KJD/KITENGELA/4462 pending the hearing and determination of the suit. He deponed that he purchased the land in 1993 from Simon Kamau Njau (now deceased) for Kshs. 125,000 and was transferred it, but a 2015 search at the Kajiado Lands Registry revealed it had been fraudulently transferred to the 1st Defendant in about 1998. He reported the matter to the DCI, whose investigations remain unresolved, placed a restriction on the title, and learnt that the 1st Defendant was attempting to sell the land. The defendants, though served, filed no response; the plaintiff's averments therefore went uncontroverted. Applying the Giella v Cassman Brown principles and the definition of a prima facie case in Mrao Ltd v First American Bank, the court (Christine Ochieng, J) held that the plaintiff, shown by the Green Card and Certificate of Title to be the former registered proprietor, had established a prima facie case. Relying on Nguruman Ltd v Jan Bonde Nielsen, the court found the threatened disposal would cause grave, non-speculative injury not compensable in damages, and that the balance of convenience favoured the plaintiff. Invoking Order 40 of the Civil Procedure Rules and section 68(1) of the Land Registration Act, and following Dorcas Muthoni v Michael Ireri Ngari, the court allowed the application, granted the temporary injunction, and ordered the Land Registrar, Kajiado to register an inhibition over the parcel, with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an order of temporary injunction should issue pending the outcome of the suit
  2. 2.Whether an inhibition order should be registered against land parcel number KJD/KITENGELA/4462 pending the hearing and determination of this suit

Key legal issues

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01

Whether the plaintiff established a prima facie case for temporary injunction

Holding

Yes - the plaintiff was the previous registered proprietor, the transfer to the 1st Defendant is alleged to be fraudulent, and the defendants filed no response leaving the averments uncontroverted.

Reasoning

The court found it undisputed that the plaintiff was the former registered proprietor and the 1st Defendant the current one. The plaintiff denied effecting the transfer and only discovered it on a 2015 search. His report to the DCI remains unresolved, and the 1st Defendant is attempting to sell the land. With no replying affidavit, the averments stood uncontroverted, satisfying the prima facie threshold per Mrao Ltd.

p. 2
02

Whether the plaintiff would suffer irreparable injury not compensable by damages

Holding

Yes - disposal of the land to a third party before determination would cause grave and irreparable injury.

Reasoning

Applying Nguruman Ltd v Jan Bonde Nielsen, the court held the injury was not speculative: the Green Card and Certificate of Title confirmed the plaintiff's prior registration, and the alleged fraudulent transfer and imminent sale meant monetary compensation could not adequately remedy loss of the land to a bona fide third party.

p. 2
03

Whether the balance of convenience favours the plaintiff and whether an inhibition order should issue

Holding

Yes - the land would be wasted away if not preserved, justifying both the injunction and an inhibition order under section 68(1) of the Land Registration Act.

Reasoning

The court found that failure to preserve the land pending determination risked it being wasted away, tilting the balance of convenience to the plaintiff. Relying on Order 40 of the Civil Procedure Rules, section 68(1) of the Land Registration Act and Dorcas Muthoni v Michael Ireri Ngari, it found an inhibition order pertinent to preserve the parcel.

p. 2

Legal principles established

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  • The threshold for a temporary injunction is the Giella test: prima facie case, irreparable harm not compensable by damages, and balance of convenience.
  • Uncontroverted averments of a plaintiff, supported by title documents showing prior registration and allegations of fraudulent transfer, establish a prima facie case.
  • An inhibition order may issue under section 68(1) of the Land Registration Act to preserve suit land pending determination.

Court orders

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  1. 1.Temporary injunction granted in respect of land parcel KJD/KITENGELA/4462 pending the hearing and determination of the suit
  2. 2.The Land Registrar, Kajiado directed to register an inhibition order against land parcel KJD/KITENGELA/4462 pending the hearing and determination of the suit
  3. 3.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel KJD/KITENGELA/4462; interim relief under Order 40 of the Civil Procedure Rules and section 68(1) of the Land Registration Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that the Plaintiff has indeed established a prima facie case as against the defendantsf to warrant the grant of orders sought.
p. 2prima facie case
I find that the Plaintiff’s injury are not speculative as he will indeed suffer grave and irreparable injury if the suit land is disposed to a third party before the court has made a determination on its ownership.
p. 2irreparable harm
I find that the balance of convenience indeed tilts in favour of the Plaintiff.
p. 2balance of convenience
I further order the Land Registrar, Kajiado do register an inhibition order against land parcel number KJD / KITENGELA / 4462 pending the hearing and determination of this suit.
p. 2final orders - inhibition
It is against the foregoing that I find the application dated the 9 th April, 2020, merited and will allow it.
p. 2disposition

Issues in the judgment

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minor

Typographical error in the judgment's holding on prima facie case: 'defendantsf'

minor

The names of the individual defendants are not stated anywhere in the judgment excerpt; the plaintiff's deponent name and the 1st Defendant's alleged transferor (Simon Kamau Njau, now deceased) do not clarify the defendants' identities.

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, "Fredrick Gitonga Rinkanya v Geoffrey Mwaura Njoroge & 3 others [2021] KEELC 4522 (KLR)", Case Analysis (2021). Notice of Motion dated 9th April, 2020 (suit relating to KJD/KITENGELA/4462). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4522/eng@2021-01-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.