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ELCDismissedPetition dated 21.1.2014 (Eldoret)· [2016] KEELC 981 (KLR)

Naresh Kimar Aggarwal v Silas Kiptui Kipchilat Alias Silas Yego & 2 others [2016] KEELC 981 (KLR)

Environment and Land Court
19 February 2016
AOAntony Ombwayo
3,211 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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An Eldoret court refused to block a land transaction because the applicant could not prove the disputed parcel was public land with proper planning documents.

What this practically means

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Executive summary

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The petitioner, registered owner of parcels Eldoret Municipality/Block 14/654 and 14/657 in Uasin Gishu, petitioned against the 1st respondent, the National Land Commission and the Attorney General, alleging that the 1st respondent had been fraudulently and unconstitutionally allocated parcel Eldoret Municipality/Block 14/1646, designated on the original map as public parking space serving as the petitioner's easement. He sought a permanent injunction, cancellation of the Lease and Certificate of Lease issued on 20.6.2003, rectification of land records, demolition of a perimeter wall, declarations of illegality and judicial review orders of certiorari and mandamus. Alongside the petition he moved by Notice of Motion dated 21.1.2014 for conservatory orders pending the hearing of the petition. The 1st respondent opposed, asserting his registration since June 2003, denying constitutional dimensions, raising statutory boundary-dispute procedures, res judicata arising from Eldoret CMCC No. 245 of 2008 and related pending appeal, and retrospectivity of Article 40. The court applied the Giella v Cassman Brown principles as restated in Mrao Ltd v First American Bank. It found the petitioner had failed to demonstrate the suit parcel is public land, as he annexed no Part Development Plan or certified Registry Index Map, and that documents NKA3 and NKA4 did not show public ownership and had no disclosed source. The petitioner also failed to establish irreparable harm, no member of the public other than himself being enjoined. The interlocutory application was dismissed with costs, the petition itself remaining pending. Judgment delivered at Eldoret on 19 February 2016 by Antony Ombwayo J.

Key legal issues

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01

Whether the petitioner established a prima facie case with a probability of success

Holding

No - the petitioner failed to prove the suit parcel is public land

Reasoning

The court applied Giella v Cassman Brown and Mrao Ltd v First American Bank. The petitioner asserted the disputed parcel was a public parking reserve but did not annex a Part Development Plan prepared by the Department of Physical Planning or a certified Registry Index Map. Documents NKA3 and NKA4 did not show the land was public land and their source was not disclosed. Without proof of public ownership, the petitioner's claimed right of easement and the public interest claim could not ground a prima facie case.

p. 5
02

Whether the petitioner would suffer irreparable harm if the injunction is not granted

Holding

No - no evidence of loss to the public, and no other member of the public was enjoined

Reasoning

The court found the applicant did not demonstrate how he or the public would suffer loss because there was no evidence the property belongs to the public, and apart from the petitioner no other member of the public was joined in the matter. The second limb of the Giella test therefore failed.

p. 6

Legal principles established

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  • The principles for granting an interlocutory injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
  • A prima facie case is one which on the material presented shows a right apparently infringed so as to call for an explanation from the opposite party

Court orders

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  1. 1.The application for injunction is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Registered Land Act (repealed)sections 21, 94
  • Land Registration Actsection 18
  • Land Act
  • Public Roads of Access Act
  • Civil Procedure Actsections 8, 61

Cases cited (2)

  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    Civil Appeal No 39 of 2002
Jurisdiction invoked
Constitution of Kenya, 2010 (petition jurisdiction invoked by the petitioner; Article 40 raised in submissions)

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 Kimar Aggarwal v Silas Kiptui Kipchilat Alias Silas Yego & 2 others [2016] KEELC 981 (KLR)", Case Analysis (2016). Petition dated 21.1.2014 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/981/eng@2016-02-19

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