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ELCDismissed· [2017] KEELC 1158 (KLR)

Harambee Children Therapy Centre Kinderhilfsprojekte v Kenya Railways Corporation & another [2017] KEELC 1158 (KLR)

Environment and Land Court
25 September 2017
EOE. O. OBAGA
744 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to stop eviction from land that was a railway reserve, ruling that charity work does not replace proof of ownership.

What this practically means

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Executive summary

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The applicant, which operates a Children Therapy Centre on plot No. 107-Dandora Phase II extension in Nairobi, brought a notice of motion dated 14th October 2016 seeking injunctions after the first respondent moved onto the property with a bulldozer on 29th September 2016 and issued a notice on 4th October 2016 requiring it to vacate within 7 days on the ground that the land is a railway reserve. The applicant claimed to have purchased the plot on 25th January 2016 from Elizabeth Wambui Njoroge, who had allegedly been allocated it by Nairobi City Council, and argued that demolition would deprive 45 disabled children from slums of therapy services. The first respondent opposed through grounds of opposition, contending that the applicant was in illegal occupation of a railway reserve and held no certificate of title, the land having no deed plan. The second respondent indicated it would not file a response. The court disposed of the application on written submissions and framed a single issue: whether the applicant had demonstrated a case warranting injunctive orders. Applying the Giella v Cassman Brown principles, the court found no prima facie case: apart from an undated transfer and a receipt, there was no proof of allotment, and land that is a railway reserve is not available for allocation. The court further held that the applicant's charitable work could not amount to irreparable loss. The application was dismissed with costs to the respondents on 25th September 2017.

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success to warrant an injunction

Holding

The court found no prima facie case because, other than an undated transfer and a receipt, there was no evidence of allotment of land that was allegedly a railway reserve

Reasoning

The applicant relied on an undated transfer and a payment receipt in the vendor's name, but produced no certificate of title, and the suit land had no deed plan. There was an undisputed allegation that the land was a railway reserve, which could not have been validly allocated. Sympathy for the charitable use of the land could not supply the missing prima facie case or establish irreparable loss.

p. 2

Legal principles established

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  • A railway reserve is not available for allocation to any person or entity, so an allotment of such land cannot found a prima facie case for injunction
  • Sympathy for an applicant's charitable activities cannot substitute for the Giella criteria and cannot amount to irreparable loss

Court orders

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  1. 1.The applicant's notice of motion dated 14th October 2016 seeking injunctive orders is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Cases cited (1)

  • Giella Vs Cassman Brown Co. Ltd
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land in Nairobi (the judgment does not cite a specific provision)

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, "Harambee Children Therapy Centre Kinderhilfsprojekte v Kenya Railways Corporation & another [2017] KEELC 1158 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1158/eng@2017-09-25

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