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ELCAllowedNotice of Motion dated 26th October 2015 (ELC, Ruiru)· [2016] KEELC 173 (KLR)

Golden Valley Properties Ltd v Leonard Githae [2016] KEELC 173 (KLR)

Environment and Land Court
26 September 2016
LGL. Gacheru
1,724 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that a registered landowner can quickly evict occupiers who cannot prove the owner authorised their stay.

What this practically means

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Executive summary

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The Plaintiff, Golden Valley Properties Ltd, moved the Environment and Land Court by Notice of Motion dated 26th October 2015, premised on Sections 13 and 19 of the Environment and Land Court Act, 2011, seeking an interlocutory injunction restraining the Defendant, Leonard Githae, his agents and servants, from entering, committing acts of waste and conducting illegal business on Land Parcel No. Ruiru East Block 1/T.900, with enforcement by the Officer in Charge, Ruiru Police Station. The Supporting Affidavit of Mary Wambui Njihia, a director, asserted the Plaintiff's registered ownership and the Defendant's unauthorised occupation. The Defendant opposed, asserting a landlord-tenant relationship through Japheth Mbuthia, who he claimed was himself the Plaintiff's tenant, and pointing to pending proceedings at the Business Premises Rent Tribunal (Cause No. 69 of 2015, Thika) and the Rent Restriction Tribunal; he alleged the suit was a conspiracy to defeat those proceedings. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found the title deed showed the Plaintiff as registered proprietor whose absolute and indefeasible rights are protected under Sections 24(a) and 25(1) of the Land Registration Act. The Defendant did not deny occupation and had no authority from the Plaintiff. A prima facie case was established and the balance of convenience favoured the registered owner. The application was allowed in terms of prayers 2 and 3, with costs to the Plaintiff, the orders to remain in force pending determination of the suit.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with probability of success for an interlocutory injunction

Holding

Yes - the Plaintiff is the registered proprietor and the Defendant's occupation without authority infringed its rights.

Reasoning

The court applied the Giella test. The title deed showed the suit property registered in the Plaintiff's name, and Section 24(a) and 25(1) of the Land Registration Act vest absolute ownership in the registered proprietor. The Defendant did not deny occupation, only claiming tenancy through Japheth Mbuthia, and had no colour of right against the registered owner. A prima facie case was therefore established.

p. 3
02

Balance of convenience

Holding

It tilts in favour of the registered owner.

Reasoning

The court held that the registered owner should be allowed to use and enjoy the property, including leasing it to a person of its choice, so the balance of convenience favours the Plaintiff as registered proprietor.

p. 3

Legal principles established

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  • A registered proprietor is deemed the absolute and indefeasible owner, protected under the Land Registration Act.
  • Occupation of land without the proprietor's authority infringes the proprietor's protected rights of use, enjoyment and access.

Court orders

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  1. 1.The Notice of Motion dated 26th October 2015 allowed in terms of prayers No. 2 and 3
  2. 2.The Defendant/Respondent, his agents and/or servants restrained from entering, causing acts of waste and/or conducting illegal business on Land Parcel No. Ruiru East Block 1/T.900 pending the hearing and determination of the application and the suit
  3. 3.The Officer in Charge, Ruiru Police Station to enforce compliance
  4. 4.Orders to remain in force pending the hearing and determination of the suit
  5. 5.Costs of the application to the Plaintiff/Applicant

Authorities

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Legislation

  • Environment and Land Court ActSections 13, 19
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1)

Cases cited (3)

  • CMC Motors Group Ltd and Another vs. Evans Kangeche Boro
    Civil Appeal No. 295 of 2007
  • Giella Vs Cassman Brown & Co. Ltd
    1973 EA 358
  • Mrao Ltd Vs First American Bank of Kenya and 2 Others
    (2003) KLR 125
Jurisdiction invoked
Sections 13 and 19 of the Environment and Land Court Act, 2011

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, "Golden Valley Properties Ltd v Leonard Githae [2016] KEELC 173 (KLR)", Case Analysis (2016). Notice of Motion dated 26th October 2015 (ELC, Ruiru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/173/eng@2016-09-26

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