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ELCPartially AllowedNotice of Motion dated 25th November 2016 (Mombasa ELC)· [2017] KEELC 717 (KLR)

Hellen Mukami v Dorina Atieno Amollo & another [2017] KEELC 717 (KLR)

Environment and Land Court
6 December 2017
2,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected a registered landowner from trespassers but refused to order demolition before trial, since that would decide the case prematurely.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (C. Yano, J) on a Notice of Motion dated 25th November 2016 by the Plaintiff, Hellen Mukami, seeking a temporary injunction restraining the 1st and 2nd Respondents from interfering with or trespassing on plots No. MN/11/3243 (CR 33607 and CR 40005) and MN/11/9210, an order for demolition of structures allegedly erected by the Respondents, and police enforcement of the demolition order. The Application was unopposed, as the Respondents were served but filed no response. The Plaintiff evidenced registered ownership by producing certificates of title, transfers and rates statements, showing purchase of the plots and an existing charge to Housing Finance Company Limited. Applying the Giella v Cassman Brown principles, the court held she had established a prima facie case with probability of success, potential irreparable loss, and balance of convenience in her favour as the registered owner protected by Sections 24, 25(1) and 26(1) of the Land Registration Act. However, the demolition prayer was treated as a mandatory injunction which, if granted, would dispose of the suit substantially at the interlocutory stage. Applying the principles in Kenya Breweries v Washington Okeyo, Locabail, Shepherd Homes and related authorities, the court declined it, noting the Defendants' claim was unknown and they were in possession. Prayer 2 (temporary injunction) was granted pending hearing of the suit; prayers 3 and 4 were refused, with costs awarded to the Plaintiff.

Key legal issues

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01

Temporary prohibitory injunction

Holding

Granted - the Plaintiff established a prima facie case with probability of success, potential irreparable damage, and balance of convenience in her favour as registered owner

Reasoning

The Plaintiff produced certificates of title and transfer documents showing she is the registered proprietor of the suit plots. Under Sections 24, 25(1) and 26(1) of the Land Registration Act she is vested with absolute ownership and entitled to protection of the law. The Defendants, though served, filed no response and their claim is unknown. Refusal of the injunction would allow them to continue altering the plots, causing irreparable loss, and the balance of convenience favours the registered owner.

p. 3
02

Interlocutory mandatory injunction (demolition of structures)

Holding

Refused - the demolition order would amount to final relief at the interlocutory stage and the case is not unusually strong and clear

Reasoning

Prayer 3 sought demolition of structures, a mandatory injunction that would virtually dispose of the suit at the interlocutory stage. The governing principles require special circumstances and a clear, unusually strong case, with a high sense of assurance that the injunction would be rightly granted at trial. Here the Defendants are in possession and the circumstances in which they entered are unknown; the defence has not been filed and the final orders cannot be predicted. The case is not plain and clear, so demolition was declined.

p. 4

Legal principles established

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  • A mandatory injunction will not normally be granted on an interlocutory application in the absence of special circumstances, and only in clear cases
  • A court must feel a high sense of assurance before granting an interlocutory mandatory injunction, a higher standard than for a prohibitory injunction
  • A registered proprietor enjoys absolute and indefeasible ownership under the Land Registration Act, subject only to the statutory exceptions

Court orders

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  1. 1.Temporary injunction restraining the 1st and 2nd Respondents, their agents and servants, from interfering with, meddling with, erecting structures on, developing and/or trespassing into plots No. MN/11/3243 CR33607 and CR 40005 pending hearing and determination of the suit (prayer 2 granted)
  2. 2.Prayers 3 and 4 of the Notice of Motion (demolition order and police enforcement) not granted
  3. 3.Costs of the Application granted to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 28
  • Halsbury's Laws of England 4th Edition, Vol. 24paragraph 948

Cases cited (6)

  • Giella -vs- Cassman Brown & Co Ltd
    (1973) EA 358
  • Kenya Breweries Ltd & Another -vs- Washington Okeyo
    (2002) eKLR
  • Locabail International Finance Ltd -V- Agro Export & Others
    (1986) 1 ALL ER 901
  • East African Five Spinners Ltd (In Receivership) & 3 Others -Vs- Bedi Investments Ltd
    Civil Appli. NAI 72 of 1994 (UR)
  • Shepherd Homes Ltd -Vs- Sandalim
    (1971) 1 CH 34
  • Kenya Airport Authority -Vs- Paul Njogu Muigai & 2 Others
    Civil Application NAI 29/97 (UR)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land

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, "Hellen Mukami v Dorina Atieno Amollo & another [2017] KEELC 717 (KLR)", Case Analysis (2017). Notice of Motion dated 25th November 2016 (Mombasa ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/717/eng@2017-12-06

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