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ELCPartially AllowedNot stated in judgment· [2016] KEELC 699 (KLR)

Naresh Jayantilal Ranpura v Halane Constructions Co. Ltd & another [2016] KEELC 699 (KLR)

Environment and Land Court
15 July 2016
856 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Malindi court halted quarrying on privately owned land, ruling that registered title wins at the interim stage and quarrying causes damage money cannot fix.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of sub-division number 879 (original No. 284/92) of Section III/MN, applied by notice of motion dated 28th October 2015 for a temporary injunction restraining the Defendants from excavating, digging and removing coral boulders from the suit property pending the hearing of the suit, and for a mandatory order compelling return of the boulders already removed and reinstatement of the property. He deponed that he purchased the property for Kshs.1,600,000 and on 26th October 2015 found bulldozers excavating boulders on it, defacing, devaluing and degrading the land. The 1st Defendant, Mezia Mkongo, deponed that he was the licensed owner of the quarry, that excavation had long been on going without objection, and that the suit land had been unlawfully registered in the Plaintiff's name while he remained in exclusive possession. The 2nd Defendant deponed that he dealt with one Mazia Stanley Mkongo, who showed him a licence, business permit and title. The court noted the Certificate of Title showed Mazia Mkongo as initial registered owner but was deceased, and Mazia Stanley Mkongo did not claim registration. It held a search would have revealed the Plaintiff's ownership, and that while the alleged unlawful registration was a matter for viva voce evidence, the Plaintiff as registered owner had established a prima facie case with chances of success, and that continued quarrying would waste the land and cause irreparable damage not compensable in damages. The court allowed the application in terms of prayers 3, 5, 6 and 7.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

The Plaintiff, as registered proprietor holding a Certificate of Title, established a prima facie case with chances of success

Reasoning

The Plaintiff annexed a Certificate of Title showing the chain from Mazia Mkongo through administrators to Shabbir Noorali Imani and then to the Plaintiff. The purported owner dealing with the 2nd Defendant, Mazia Stanley Mkongo, did not claim registration and appears not to be the deceased initial owner. Whether the registration was unlawful could only be determined at trial, but the registered ownership sufficed at the interlocutory stage.

p. 2
02

Irreparable damage

Holding

Continued quarrying would waste the land and cause irreparable damage incapable of compensation in damages

Reasoning

The court found the excavation defaced, devalued and degraded the property, endangered it, and prevented development. Because removal of coral boulders wastes land, the harm could not be adequately compensated by an award of damages if the Plaintiff ultimately succeeded, satisfying the second Giella-type consideration.

p. 2
03

Alleged unlawful registration of the suit property in the Plaintiff's name

Holding

The question could only be conclusively answered after viva voce evidence; it did not defeat the interlocutory application

Reasoning

The 1st Defendant asserted exclusive possession and that the suit land was unlawfully registered in the Plaintiff's name. The court accepted this was a triable issue but not one resolvable on affidavit evidence, and it did not displace the Plaintiff's prima facie case founded on the Certificate of Title.

p. 2

Legal principles established

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  • A registered proprietor of land establishes a prima facie case for interlocutory relief against persons quarrying on it without his consent
  • Quarrying on land that will waste it causes irreparable damage not compensable in damages
  • A purchaser dealing with a purported owner should conduct an official search to verify registered ownership; a first page of a title alone is insufficient

Court orders

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  1. 1.Application allowed in terms of prayer numbers 3, 5, 6 and 7 (temporary injunction restraining excavation/removal of coral boulders and interference with the Plaintiff's occupation of the suit property pending hearing and determination of the suit)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property (not expressly 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, "Naresh Jayantilal Ranpura v Halane Constructions Co. Ltd & another [2016] KEELC 699 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/699/eng@2016-07-15

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