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ELCAllowedNot stated in the judgment as provided· [2017] KEELC 433 (KLR)

New Nyonjoro Farmers Co. Ltd. v Wanyororo Dairies Co-operative Ltd. [2017] KEELC 433 (KLR)

Environment and Land Court
15 December 2017
795 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court stopped construction on land owned by a company since 1999, ruling that a registered title beats unproven claims of county ownership.

What this practically means

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Executive summary

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By Amended Notice of Motion dated 15th February 2017, the plaintiff, New Nyonjoro Farmers Company Limited, sought a temporary injunction restraining the defendant from further construction or dropping new building materials on LR. No. Dundori/Lanet Block 4/122 pending the hearing and determination of the suit. The application was supported by an affidavit of the plaintiff's chairman, Sylvester Kimani Gitau, who annexed a Certificate of Official Search dated 1st November 2016 showing the plaintiff became registered proprietor on 22nd January 1999 and was issued a title deed. The defendant, through its chairman Francis Waweru Wanjema, asserted the suit property was a public utility belonging to the County Government of Nakuru, which had allowed the defendant to use it for its dairy business, relying on a letter from a Member of the County Assembly and board and residents' meeting minutes. The court applied the classic interlocutory injunction test: prima facie case with probability of success, irreparable damage, and balance of convenience only if in doubt. It found the plaintiff's registration established a prima facie case, noting the defendant produced no document supporting the allegation of county ownership or public utility status, and that an MCA's letter could not represent the County Government's official position. As registered proprietor the plaintiff was entitled to the rights under Sections 24, 25 and 26 of the Land Registration Act, and damages would not adequately compensate. The court granted the injunction restraining further construction or dropping of building materials pending hearing of the suit, with costs to the plaintiff. Orders were issued on 15th December 2017 by D. O. Ohungo J.

Key legal issues

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01

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

Holding

Yes - the certificate of official search showed the plaintiff was registered proprietor since 22nd January 1999, and the defendant produced no documents supporting its claim that the property was a public utility owned by the County Government of Nakuru.

Reasoning

The court perused the certificate of official search dated 1st November 2016 showing registration of the plaintiff on 22nd January 1999 with a title deed issued. The defendant's challenge rested on an allegation of public utility ownership by the County Government of Nakuru, but no document supported this. A letter from a Member of the County Assembly could not represent the County Government's official position, and even if it did, it would not suffice absent ownership documents. The plaintiff therefore satisfied the Giella first test.

p. 2
02

Whether damages would be an adequate remedy

Holding

No - the court was satisfied damages could not adequately compensate the plaintiff, satisfying the second Giella test.

Reasoning

Having found a prima facie case, the court considered the second limb of the injunction test. It reasoned that as registered proprietor the plaintiff was entitled to the rights and privileges under Sections 24, 25 and 26 of the Land Registration Act, and that the defendant's ongoing construction without consent would not be adequately remedied by an award of damages. The court therefore did not need to consider the balance of convenience.

p. 2

Legal principles established

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  • For an interlocutory injunction to succeed, the applicant must establish a prima facie case with a probability of success and irreparable damage; if the court is in doubt it decides on a balance of convenience; if no prima facie case is established the application must be dismissed without considering the other two tests.
  • A registered proprietor is entitled to the rights and privileges under Sections 24, 25 and 26 of the Land Registration Act.

Court orders

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  1. 1.An injunction restraining the defendant by itself, its agents or servants from carrying out further construction or dropping new building materials on LR. No. Dundori/Lanet Block 4/122 pending hearing and determination of the suit
  2. 2.Costs of the application to the plaintiff

Authorities

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Legislation

  • Land Registration ActSections 24, 25 and 26
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land LR. No. Dundori/Lanet Block 4/122

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, "New Nyonjoro Farmers Co. Ltd. v Wanyororo Dairies Co-operative Ltd. [2017] KEELC 433 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/433/eng@2017-12-15

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