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ELCAllowedNotice of Motion dated 15th April 2013· [2014] KEELC 435 (KLR)

Arthur Kitonga & 2 others v Ken Ng’ondi & another [2014] KEELC 435 (KLR)

Environment and Land Court
24 March 2014
1,423 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 Nairobi court protected a church's land by confirming that anyone claiming land is public must actually prove it, not just say so.

What this practically means

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Executive summary

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Trinity Fellowship Church, as registered lessee of LR. No. Nairobi Block 153/5 and 153/7 (leases registered in February and March 2009), moved the court by Notice of Motion dated 15th April 2013 seeking a temporary injunction against the elected Ward Representative for Quarry Ward and the Local Area Assistant Chief, who allegedly threatened on 13th April 2013 to invade the properties, demolish the perimeter wall and subdivide the land to youths, claiming the land was public. The Plaintiff relied on certificates of lease and City Council of Nairobi approvals for a church, nursery school, toilet block, offices, halls, classrooms and boundary wall. The 1st Defendant admitted visiting the properties to calm a commotion, asserting a duty to protect public utilities, but filed no evidence that the land was public; the 2nd Defendant filed no response. Canvassed by written submissions, the court framed one question: whether the Plaintiff met the Giella v Cassman Brown threshold. Applying Mrao Ltd v First American Bank, the court found a prima facie case: title and development approvals were evidenced and the 1st Defendant admitted presence on the property when threats were made, without proving public-land status. As the Defendants showed no ability or willingness to compensate in damages, the court made no finding on damages. The Motion was allowed: the Defendants and their agents were restrained from invading, demolishing or subdividing the properties and from interfering with the Plaintiff's peaceful enjoyment pending determination of the suit, the OCS Embakasi was directed to assist in enforcement, and costs were made costs in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes - the Plaintiff produced title documents (certificates of lease) and City Council development approvals, and the 1st Defendant admitted being on the property when the threats were made without proving the land was public.

Reasoning

The court adopted the Mrao definition of a prima facie case. The Plaintiff evidenced registration of leases in 2009 and approved plans for development. The 1st Defendant's own affidavit admitted presence on the properties on 13th April 2013 when threats of invasion, demolition and sub-division were allegedly made. His public-interest claim was unsupported by evidence that the land was public. The court concluded a right had apparently been infringed calling for rebuttal.

p. 3
02

Whether damages would be an adequate remedy / irreparable loss

Holding

The court made no finding on damages as an adequate remedy since the Defendants gave no indication of willingness or ability to compensate; it granted the injunction on that basis.

Reasoning

Under Giella, the second limb requires irreparable injury not compensable in damages. The court noted the Defendants had not indicated any willingness or ability to pay damages, so it declined to hold damages adequate and proceeded to grant the injunction, effectively finding the balance of equities favoured preserving the status quo.

p. 3

Legal principles established

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  • A party asserting that suit land is public land bears the evidential burden of proving that assertion; an admitted presence on the land with threats of demolition, without evidence of public-land status, supports a finding of prima facie case for injunction.

Court orders

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  1. 1.Temporary injunction restraining the Defendants, their servants, agents and/or licensees from invading and/or demolishing the Plaintiff's perimeter fence and other properties on LR. No. Nairobi Block 153/5 and 153/7 and/or causing the same to be subdivided pending hearing and determination of the suit or until further orders
  2. 2.Temporary injunction restraining the Defendants, their servants, agents and/or licensees from interfering with the Plaintiff's peaceful enjoyment of the suit properties pending hearing and determination of the suit or until further orders
  3. 3.The Officer Commanding Station, Embakasi Police Station to assist in enforcement of the orders
  4. 4.Costs of the Notice of Motion to be in the cause

Authorities

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Legislation

  • Land Registration Actsection 25(1)

Cases cited (2)

  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
Jurisdiction invoked
Inherent jurisdiction of the court to grant interim relief in a land dispute (suit over LR. No. Nairobi Block 153/5 and 153/7); no specific provision stated in the judgment

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, "Arthur Kitonga & 2 others v Ken Ng’ondi & another [2014] KEELC 435 (KLR)", Case Analysis (2014). Notice of Motion dated 15th April 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/435/eng@2014-03-24

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