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ELCAllowedNot stated in judgment (application dated 11th March 2015)· [2016] KEELC 689 (KLR)

Narendrakumar Karsan Sanghani v Kenya National Highways Authority & 2 others [2016] KEELC 689 (KLR)

Environment and Land Court
20 July 2016
1,710 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court stopped the government from demolishing a Mombasa property, ruling that a title holder who bought innocently cannot be removed without proof of completed acquisition and compensation.

What this practically means

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Executive summary

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The applicants, registered leasehold proprietors as joint tenants of L.R No. MN/V/1817, moved the Court under Order 40 and 51 of the Civil Procedure Rules seeking an interim injunction restraining the 1st defendant from entering, occupying, demolishing or interfering with the property pursuant to a demolition notice alleging that the southern boundary wall encroached on the Changamwe–Mikindani–Jomvu Junction road reserve. The applicants relied on their title, a survey report negating encroachment, and the defendant's failure to respond to their demand to withdraw the notice. The 1st defendant, through Engineer Jared Makori, deposed that the original parcel L.R MN 82/2/V was compulsorily acquired in 1969 under the Land Acquisition Act via gazette notices, that the suit premises encroached about 0.1777 ha onto the road reserve, and that the applicants' title, created by a 1985 subdivision, was irregular. The court found the applicants held title as innocent purchasers with no restriction on their title and no evidence of completed acquisition or compensation. It held that compulsorily acquired land cannot be an overriding interest under section 28 of the repealed Registered Land Act, and that where the legality of a defendant's action is questioned, compensation is not the sole remedy since refusing the injunction might authorise an illegality. Weighing the public interest against article 40 property rights, the court found two of the Giella principles satisfied and allowed the motion in terms of prayers 3 and 4, granting the interim injunction and costs, while directing that the substantive questions of completed acquisition, registration, compensation and consents be determined at trial.

Key legal issues

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01

Whether the applicants established a prima facie case for injunction

Holding

Yes - they hold title, purchased innocently, and the defendant produced no restriction on the title nor proof of completed acquisition or compensation.

Reasoning

The court found title undisputed and the applicants innocent purchasers not party to the 1985 subdivision. The defendant's 1969 gazette notices did not demonstrate completed acquisition or payment of compensation, nor any restriction on the title. On the Giella principles, the applicants therefore showed a prima facie case with a probability of success, satisfying the first limb of the injunction test.

p. 3
02

Whether compulsory acquisition creates an overriding interest binding the registered proprietor

Holding

No - once land is acquired it ceases to belong to the registered proprietor; the overriding-interests doctrine does not apply to land acquired under the Land Acquisition Act.

Reasoning

The defendant invoked section 28 of the repealed Registered Land Act to argue unregistered overriding interests. The court rejected this, reasoning that overriding interests (such as wayleaves or easements) do not disentitle an owner, whereas acquired land ceases to belong to the registered proprietor entirely. The doctrine was thus inapplicable to the alleged 1969 acquisition.

p. 3
03

Whether damages would be an adequate remedy

Holding

No - where legality of the defendant's action is questioned, refusing the injunction might authorise an illegality that damages cannot cure.

Reasoning

The applicants had conducted a survey negating encroachment and written to the defendant, which neither responded nor withdrew the demolition notice. Since the legality of the demolition remained undetermined, allowing demolition before trial risked the court authorising an illegality. The public-interest principle was weighed against article 40 constitutional property rights.

p. 3

Legal principles established

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  • Land compulsorily acquired under the Land Acquisition Act cannot be treated as an unregistered overriding interest under section 28 of the Registered Land Act (repealed).
  • Where the legality of an action has been questioned, compensation is not the only remedy to be considered when assessing injunctive relief.
  • An innocent purchaser for value without notice of any restriction holds a prima facie case against allegations of encroachment on a road reserve where no evidence of completed acquisition and compensation is shown.

Court orders

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  1. 1.Pending hearing and determination of the suit, the Defendant, by itself or through its servants, employees, officers and/or agents, jointly and severally restrained from entering or occupying L.R No. MN/V/1817 and/or from demolishing the boundary wall, gate or any other structure on the said property and/or from interfering in any manner whatsoever with the plaintiffs' quiet and peaceful use and occupation thereof
  2. 2.Costs of the application provided for (motion allowed in terms of prayer 3 and 4)
Jurisdiction invoked
Order 40 and 51 of the Civil Procedure Rules and sections 1A, 1B & 3A of the Civil Procedure Act

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, "Narendrakumar Karsan Sanghani v Kenya National Highways Authority & 2 others [2016] KEELC 689 (KLR)", Case Analysis (2016). Not stated in judgment (application dated 11th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/689/eng@2016-07-20

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