Benjamin Temut Kerema v Michael Kihambilu Lugwili & 3 others [2020] eKLR Case Summary

Court
Environment and Land Court at Kajiado
Category
Civil
Judge(s)
Hon. Christine Ochieng
Judgment Date
October 14, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Discover the key highlights and legal principles from the Benjamin Temut Kerema v Michael Kihambilu Lugwili & 3 others [2020] eKLR case. Explore the implications for similar cases and legal precedents.

Case Brief: Benjamin Temut Kerema v Michael Kihambilu Lugwili & 3 others [2020] eKLR

1. Case Information:
- Name of the Case: Benjamin Temut Kerema v. Michael Kihambilu Lugwili & Others
- Case Number: ELC Case No. 4 of 2020
- Court: Environment and Land Court at Kajiado
- Date Delivered: October 14, 2020
- Category of Law: Civil
- Judge(s): Hon. Christine Ochieng
- Country: Kenya

2. Questions Presented:
The central legal issues the court must resolve include:
- Whether the Plaintiff is entitled to orders of interim injunction against the Defendants, restraining them from selling or alienating the property known as Kajiado/Kitengela/95834, pending the outcome of the suit.
- Whether the 1st Defendant is entitled to orders of interim injunction against the Plaintiff concerning several other parcels of land, restraining the Plaintiff from trespassing or damaging these lands pending the hearing and determination of the main suit.

3. Facts of the Case:
The Plaintiff, Benjamin Temut Kerema, claims to be the registered owner of land parcel Kajiado/Kitengela/94235, which he subdivided into several parcels, including Kajiado/Kitengela/95322. In 2016, he sold four acres to the 1st Defendant, Michael Kihambilu Lugwili, who was supposed to excise his portion. The Plaintiff alleges that while he was unwell, the 1st Defendant fraudulently obtained title to the suit land and charged it to the 4th Defendant, National Industrial Credit Bank Limited, without his knowledge. He claims imminent auction of the land due to the 2nd Defendant's default in loan repayment. The 1st Defendant, in turn, asserts that he lawfully purchased the land and has made payments, while the 4th Defendant claims to have a valid charge over the land.

4. Procedural History:
The Plaintiff filed a Notice of Motion on February 7, 2020, seeking an injunction against the Defendants to prevent them from selling the suit land. The 1st and 2nd Defendants responded with their own Notice of Motion on July 9, 2020, seeking to restrain the Plaintiff from interfering with several other parcels of land. Both applications were subject to written submissions from the parties, leading to a determination by the court on the merits of each application.

5. Analysis:
- Rules: The court considered the principles for granting a temporary injunction as established in *Giella v. Cassman Brown & Co. Ltd* (1973) and *Mrao v. First American Bank of Kenya Limited & 2 Others* (2003). The applicant must demonstrate a prima facie case, potential for irreparable harm, and the balance of convenience must favor the applicant.

- Case Law: The court referenced *Giella v. Cassman Brown & Co. Ltd* to establish the criteria for injunctions. In *Nguruman Ltd. v. Jan Bonde Nielsen* (CA No. 77 of 2012), it was emphasized that the applicant must show that they might suffer irreparable harm without an injunction.

- Application: The court found that the Plaintiff established a prima facie case based on his ownership claims and allegations of fraud against the 1st and 2nd Defendants. The imminent threat of auctioning the land, which also contains family graves, constituted irreparable harm. The balance of convenience favored the Plaintiff as the potential loss of the land could not be compensated by damages. Conversely, the court found no prima facie case against the Plaintiff regarding the parcels claimed by the 1st and 2nd Defendants.

6. Conclusion:
The court granted the Plaintiff's application for an injunction, restraining the Defendants from selling or alienating the suit land pending the outcome of the main suit. The application by the 1st and 2nd Defendants was disallowed. This ruling underscores the importance of protecting property rights and the need for thorough examination of claims of fraud in land transactions.

7. Dissent:
There were no dissenting opinions noted in this ruling.

8. Summary:
The court's decision to grant the Plaintiff an injunction reflects a commitment to uphold property rights and address allegations of fraud in land transactions. The ruling is significant as it emphasizes the necessity for due diligence in property dealings and provides a framework for resolving disputes involving claims of ownership and fraud. The case highlights the complexities surrounding land ownership and the legal protections available to property owners in Kenya.

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