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ELCAllowedNot stated in judgment (Notice of Motion dated 3 June 2017)· [2017] KEELC 1284 (KLR)

Ollin Savings And Credit Co-operative Soc. Ltd v Patrick Njiru Kuria [2017] KEELC 1284 (KLR)

Environment and Land Court
3 October 2017
925 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 stopped a defendant from interfering with registered land, ruling that an unimplemented county assembly recommendation cannot defeat a valid title.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 3 June 2017 in which the Plaintiff, the registered proprietor of Title No. WANGURU/TOWNSHIP/160, sought an interlocutory injunction restraining the Defendant from trespassing on, entering, constructing upon or interfering with the suit property pending trial. The Plaintiff alleged trespass, demolition of buildings and fencing of the property. The Defendant opposed, contending that the property he purchased between 2013 and 2015 was parcel No. 159, and relying on an internal investigation by the County Assembly of Kirinyaga County which found the suit property had been irregularly alienated and recommended that the National Land Commission revoke the certificate of lease; he also raised confusion over the interchange of the two plots' locations. Applying the Giella v Cassman Brown principles, the court held the Plaintiff had demonstrated a prima facie case with probability of success, since the County Assembly's revocation recommendation was a mere recommendation with no evidence it was acted upon, and the Defendant's own materials confirmed he bought parcel 159. On irreparable harm, the court rejected the argument that seeking trespass and special damages proved damages would be adequate, finding monetary compensation insufficient in the circumstances. The balance of convenience was not considered as the first two principles were satisfied. The court allowed the motion in terms of prayer 3, required the Plaintiff to file an undertaking as to damages within 14 days failing which the injunction would lapse, and ordered costs in the cause.

Key legal issues

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01

Prima facie case

Holding

The Plaintiff, as current registered proprietor of parcel No. 160 with a certificate of lease, demonstrated a prima facie case notwithstanding the dispute over plot locations.

Reasoning

The court noted the Plaintiff exhibited a certificate of lease as registered proprietor of parcel 160. The County Assembly's recommendation to revoke the title was a mere recommendation with no evidence of implementation. The Defendant's own affidavit and exhibited sale agreements confirmed he purchased parcel 159, not 160. Accordingly, the Plaintiff showed a prima facie case with probability of success under the Giella test.

p. 2
02

Adequacy of damages

Holding

Monetary damages would not be an adequate remedy; irreparable harm was established.

Reasoning

The Defendant argued that because the Plaintiff sought damages for trespass and special damages for demolition, damages would suffice. The court rejected the notion that seeking damages is conclusive proof of adequacy, noting uncertainty about the intended use of the properties and the possibility that the Defendant could erect buildings counter to the Plaintiff's purposes, and that the Defendant might not afford hefty damages.

p. 2
03

Balance of convenience

Holding

Not considered, as the first two Giella principles were satisfied.

Reasoning

Having found a prima facie case and that damages would be inadequate, the court held it unnecessary to determine the third principle. This reflects the orthodox approach that once the first two limbs are established, the balance of convenience need not be reached.

p. 2

Legal principles established

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  • A county assembly's recommendation to revoke a title is not, without evidence of implementation, sufficient to defeat a registered proprietor's prima facie case.
  • Seeking damages for trespass or special damages does not conclusively establish that monetary damages are an adequate remedy.

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 3 June 2017 is allowed in terms of prayer No. 3 thereof (interlocutory injunction)
  2. 2.The Plaintiff shall file a written undertaking as to damages within 14 days from the date hereof failing which the injunction shall lapse
  3. 3.The costs of the application shall be in the cause

Authorities

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Cases cited (1)

  • Giella v Cassman Brown & Co. Ltd
    (1973) E.A 358
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property Title No. WANGURU/TOWNSHIP/160

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, "Ollin Savings And Credit Co-operative Soc. Ltd v Patrick Njiru Kuria [2017] KEELC 1284 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 3 June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1284/eng@2017-10-03

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