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ELCAllowed· [2017] KEELC 1342 (KLR)

Peter Midimo Agola v County Government of Trans Nzoia [2017] KEELC 1342 (KLR)

Environment and Land Court
24 August 2017
2,178 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court protected a garage owner from eviction because the county kept issuing him paid business permits, even though he had no ownership documents.

What this practically means

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Executive summary

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The plaintiff, who operates the Kulia Ujuzi Garage on a portion of land off Central Elgon Road behind the National Bank of Kenya, Kitale, moved the court by notice of motion dated 20/2/2017 seeking a temporary injunction restraining the County Government of Trans Nzoia from evicting him or demolishing his premises pending the hearing of the suit. He asserted that he had been allocated the land by the defunct Municipal Council of Kitale in 1989, had paid rates and licence fees, and had received no written notice of the intended demolition. The defendant, through replying affidavits of Lucy Kihamba, denied any allocation, produced notices to kiosk owners, and maintained that the plaintiff occupied a road reserve inconsistently with its road development mandate. The court, applying the established injunction test, found that although the plaintiff had no allotment letter and his permits showed discrepant plot numbers, his occupation was undisputed and enjoyed the defendant's express consent through periodically issued business permits, including payment for the 2017 Single Business Licence, hence a prima facie case. The court also found irreparable damage would result from immediate demolition, and noted the defendant had exhibited no development plan demonstrating imminent works on the subject road. The interim injunction in prayer (b) was confirmed pending the hearing and determination of the suit, with directions for full Order 11 compliance within 14 days so the suit could be heard in the first week of the September 2017 term. No costs order was made.

Key legal issues

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01

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

Holding

Yes, despite no proof of allocation, the plaintiff's occupation was undisputed and conducted with the defendant's express consent through issued business permits

Reasoning

The court examined the annexures and found no allotment letter, only business permits paid for over several years. The discrepancies in plot numbers were immaterial because the defendant was aware of the plaintiff's presence on the road reserve and had issued periodic permits, including the 2017 Single Business Licence. Consent-based occupation of a business conducted for a livelihood sufficed to establish a prima facie case at the interlocutory stage.

p. 4
02

Whether the plaintiff would suffer irreparable damage if evicted before the hearing of the suit

Holding

Yes; immediate demolition of his extensive developments and garage business before trial would cause irreparable damage

Reasoning

The court took into account the extensive developments the plaintiff pleaded having made since 1989, including machinery and installations, but declined to comment further to avoid prejudicing the main suit. It held that if immediate eviction issued and the developments were demolished before the hearing, the plaintiff would suffer irreparable damage not compensable by damages.

p. 4
03

Whether the defendant demonstrated the imminence of its development programme to justify immediate eviction

Holding

No; no development plan or documentation was exhibited to show imminent execution of works on the subject road

Reasoning

Although the defendant pleaded a mandate to develop towns and open up access roads, no documentation was annexed to the replying affidavits showing the imminence of execution on the subject road. The court presumed that county development plans undergo consultation, approval and funding, and that handling permit commitments should form part of that planning.

p. 4

Legal principles established

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  • Business permits are distinct from allotment letters and do not evidence allocation of land
  • Where a county government has issued business permits and accepted money for a period, that commitment forms part of its development planning and cannot be ignored
  • A person conducting business on land with the express consent of a county authority, evidenced by periodic permits, may establish a prima facie case against summary eviction even without proof of ownership

Court orders

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  1. 1.The orders of interim injunction issued as per prayer (b) of the Notice of Motion dated 20/2/2017 are confirmed pending the hearing and determination of the suit
  2. 2.The parties have 14 days from the date of the ruling to comply fully with Order 11 of the Civil Procedure Rules and make the suit ready for hearing in the first week of the new term beginning September 2017

Authorities

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Legislation

  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land (disputed portion of land in Kitale town); application brought under Order 11 and the injunction jurisdiction in the Civil Procedure Rules

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, "Peter Midimo Agola v County Government of Trans Nzoia [2017] KEELC 1342 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1342/eng@2017-08-24

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