James Njihia Gichura v National Land Commisison & 2 others [2017] KEELC 1142 (KLR)
The bottom line
#A Mombasa court stopped the SGR contractor from destroying a landowner's property beyond the small portion it had actually acquired and paid for.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
Yes - the Plaintiff is the registered owner and the Defendants' interest is limited to the 0.5787 ha excised and compensated.
The Plaintiff produced a title deed and a Kenya Gazette Notice and other documents showing only 0.5787 ha of the 1.30 ha parcel was compulsorily acquired and paid for. Under Sections 25(1) and 26(1) of the Land Registration Act he is vested with absolute ownership of the remainder. The Defendants filed no response, so the court could not anticipate any interest of the 2nd Defendant in the remainder.
Whether the Plaintiff would suffer irreparable damage not compensable by damages, and where the balance of convenience lies
Yes - loss from demolition of structures on the uncompensated remainder may not be quantifiable in damages; balance of convenience favours the Plaintiff as registered proprietor.
The court reasoned that should the 2nd Defendant destroy the Plaintiff's property outside the lawfully acquired area, the resulting loss may not be quantified in damages. It further held that even if it had doubt, the balance of convenience lies with the registered proprietor rather than the Defendants, completing the three Giella criteria.
Legal principles established
#- A registered proprietor's title is protected under Sections 25(1) and 26(1) of the Land Registration Act and may only be challenged on the grounds of fraud or misrepresentation, or where the title was acquired illegally, unprocedurally or through a corrupt scheme.
Court orders
#- 1.Interlocutory injunction granted in terms of prayer (c) of the Notice of Motion dated 22nd March 2017, restraining the Defendants, and in particular the 2nd Defendant, from pulling down, entering upon, destroying or interfering with the Plaintiff's parcel MBOLOLO/TAUSA/4256 other than the 0.5787 hectares already acquired and compensated, pending hearing and determination of the application and the suit
- 2.Costs in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property MBOLOLO/TAUSA/4256
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Njihia Gichura v National Land Commisison & 2 others [2017] KEELC 1142 (KLR)", Case Analysis (2017). Notice of Motion dated 22nd March 2017 (suit re MBOLOLO/TAUSA/4256). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1142/eng@2017-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.