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ELCAllowedNot stated in the judgment· [2016] KEELC 633 (KLR)

Meuledi Kitongo Iseme v Nairobi City County & another [2016] KEELC 633 (KLR)

Environment and Land Court
29 July 2016
MGMARY M. GITUMBI
1,538 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who holds a registered title and approved building plans can stop a county government from marking or demolishing her building.

What this practically means

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Executive summary

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This was an unopposed Notice of Motion dated 18th September 2015 in which the Plaintiff, Meuledi Kitongo Iseme, sought a temporary injunction restraining the Defendants from interfering with Nairobi/Block 32/1041 in Magiwa Estate pending the hearing of the suit. The Plaintiff produced her Certificate of Lease showing she is the registered proprietor, proved she obtained the 1st Defendant's approval of her building plans (Plan No. CPFAA 218 dated 30th January 2014) and paid Kshs. 139,000/- in approval fees, then completed construction through a contractor under her architect's supervision. On or about 9th September 2015 the 2nd Defendant, with 1st Defendant's employees, marked the building 'Remove', 'Remove illegal bldg.' and 'Remove X NCC' in red, and the Defendants issued verbal threats to demolish the development. The Defendants, given a last opportunity on 19th January 2016, filed no response. Applying Giella v Cassman Brown, the court (Mary M. Gitumbi, J) found a prima facie case with high chances of success: the Plaintiff's title is prima facie absolute and indefeasible under section 26(1) of the Land Registration Act, and the Defendants did not challenge it. Damages would not suffice as land is unique; and the balance of convenience favours the Plaintiff since demolition would cause greater inconvenience than any the Defendants would suffer. All three Giella grounds were satisfied and the application was allowed with costs to the Plaintiff.

Key legal issues

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01

Prima facie case with probability of success

Holding

Established: the Plaintiff proved on a prima facie basis that she is the registered proprietor and obtained the 1st Defendant's uncontroverted approval of her development

Reasoning

The Plaintiff produced her Certificate of Lease showing she is the registered proprietor, and proved she obtained the 1st Defendant's approval of her building plans (Plan No. CPFAA 218) and paid Kshs. 139,000/- approval fees. These facts were uncontroverted, as the application was unopposed. Under section 26(1) of the Land Registration Act her title is prima facie absolute and indefeasible, entitling her to develop the property as she deems fit.

p. 2
02

Adequacy of damages as a remedy

Holding

Damages would not suffice; land is unique

Reasoning

Relying on Niaz Mohamed Jan Mohamed and JM Gichanga, the court held that no amount of money can compensate infringement of ownership rights and that land is unique - no one parcel can be equated in value to another. Though the value of the suit property could be ascertained, it would not be right to say the Plaintiff could be compensated in damages for its wrongful demolition.

p. 3
03

Balance of convenience

Holding

Tilts in favour of the Plaintiff/Applicant

Reasoning

The development is entirely located within the suit property proved to be registered in the Plaintiff's name. The greater inconvenience would be demolition of that development if the injunction were refused, compared with any inconvenience the Defendants would suffer if it were granted. The balance of convenience therefore favours granting the temporary injunction.

p. 3

Legal principles established

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  • Conditions for grant of an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience in case of doubt
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership under section 26(1) of the Land Registration Act
  • Land is unique and damages are not always a suitable remedy where the plaintiff has established a clear legal right or breach

Court orders

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  1. 1.Temporary injunction restraining the Defendants/Respondents from interfering with the parcel of land known as Nairobi/Block 32/1041 situated within Magiwa Estate pending the hearing and determination of this suit
  2. 2.Application allowed with costs to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 26(1)

Cases cited (5)

  • GIELLA versus CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Niaz Mohamed Jan Mohamed versus The Commissioner of Lands
    (1996) eKLR
  • JM GICHANGA versus CO-OPERATIVE BANK OF KENYA LTD
    (2005) eKLR
  • Nguruman Ltd versus Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land known as Nairobi/Block 32/1041, Magiwa Estate

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, "Meuledi Kitongo Iseme v Nairobi City County & another [2016] KEELC 633 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/633/eng@2016-07-29

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