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ELCPartially AllowedNot stated in the judgment· [2014] KEELC 546 (KLR)

Nancy Bomet & 2 others v Jamaldin Yahya & 14 others [2014] KEELC 546 (KLR)

High Court of Kenya
2 May 2014
MGMary M. Gitumbi
1,390 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In a Kenyan land dispute, only property owners with certificates of title got court protection; those without title documents got nothing.

What this practically means

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Executive summary

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The Plaintiffs, members of Jamhuri East Residents Association (JERA), sought a temporary injunction and a mandatory order compelling the Defendants to vacate 23 parcels of land known as Nairobi/Block 62/762-767, 749-753 and 768-779, which they alleged the Defendants had trespassed upon and used as car parking lots and garages, allegedly with the connivance of provincial administration officers. The 6th Defendant, Samuel Ketai, opposed the application, contending that the land was a community market project (Toi Market) serving over 3,000 traders, that no titles had ever been issued or possession taken by the purported proprietors, that the Defendants had acquired possessory rights by adverse possession, and that the suit was res judicata given the prior dismissed Milimani CMCC No. 2144 of 2008. The court applied the Giella v Cassman Brown principles and the Mrao definition of a prima facie case. Certificates of lease were produced for only 9 of the 23 parcels. Relying on Sections 24(a) and 26(1) of the Land Registration Act, the court held that the produced titles were prima facie evidence of absolute and indefeasible ownership, establishing a prima facie case with high chances of success for the titled parcels. It further held that damages were not an adequate remedy for land, and declined to decide the balance of convenience as it was not in doubt. The application was allowed only in respect of the titled suit properties with costs to the affected Plaintiffs, and dismissed in respect of the remaining 14 parcels for which no title documents were produced.

Key legal issues

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01

Whether the Applicants established a prima facie case for a temporary injunction

Holding

The Applicants who produced certificates of lease established a prima facie case with high chances of success in respect of the titled suit properties

Reasoning

Applying Giella v Cassman Brown and Mrao v First American Bank, the court examined the title documents. Certificates of lease were produced for 9 of the 23 parcels. Under Sections 24(a) and 26(1) of the Land Registration Act, registration vests absolute ownership and a certificate of title is prima facie evidence of absolute and indefeasible ownership. The registered proprietors therefore showed an apparently infringed right calling for rebuttal only as regards the titled parcels.

p. 4
02

Whether damages would be an adequate remedy

Holding

Damages would not adequately compensate the registered proprietors of the titled parcels

Reasoning

The court held that land is unique and no parcel can be equated in value to another. Although the value of the titled properties could be ascertained, following JM Gichanga v Co-operative Bank, damages are not a suitable remedy where a clear legal right or breach is established. Irreparable injury was therefore shown for the titled properties.

p. 4

Legal principles established

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  • A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner, challengeable only on grounds of fraud, misrepresentation or illegal/unprocedural acquisition
  • Damages are not always a suitable remedy where a plaintiff has established a clear legal right or breach, particularly concerning land

Court orders

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  1. 1.Temporary injunction restraining the Defendants/Respondents from continuing to unlawfully possess, occupy, use, trespass on and/or lease the titled suit properties (Nairobi/Block 62/749-751, 753, 765, 768, 770, 777 and 779)
  2. 2.Application allowed in respect of the titled suit properties with costs to the affected Plaintiffs
  3. 3.Application dismissed in respect of the remaining 14 suit properties for which no certificates of title were produced

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (3)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • JM GICHANGA versus CO-OPERATIVE BANK OF KENYA LTD
    (2005) eKLR
Jurisdiction invoked
Original civil jurisdiction over land dispute and interlocutory application (no specific provision cited 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, "Nancy Bomet & 2 others v Jamaldin Yahya & 14 others [2014] KEELC 546 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/546/eng@2014-05-02

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