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ELCDismissedNot stated in the judgment as provided· [2017] KEELC 1546 (KLR)

Gori Investment Limited v Basco Products (K) Limited & another [2017] KEELC 1546 (KLR)

Environment and Land Court
29 September 2017
SOS. Okong'o
1,956 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When two people hold titles to the same Nairobi plot, the earlier title wins, and courts won't evict whoever is already living on the land.

What this practically means

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Executive summary

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The plaintiff, through its director Gopal Dhanji Patel, sued claiming to be the registered owner of L.R. No 209/9329 on 1st Parklands Avenue, Nairobi, and moved the court by Notice of Motion dated 28th November 2016 under Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act and Order 40 Rule 1(a) and Order 51 of the Civil Procedure Rules. It sought a temporary injunction restraining the defendants from dealing with, constructing on or trespassing over the suit property, leave to forcibly evict them, an order for vacant possession, and police enforcement of the eviction. The 1st defendant, through its director Anilkumar Amratlal Tarachand Shah, opposed the application, contending it purchased the property from previous owners in July 2010, holds Grant I.R 34465 issued on 3rd March 1980, has occupied, fenced and guarded the property since December 2010, paid statutory rates, and charged the property to Barclays Bank of Kenya Limited to secure a Kshs. 400,000,000 facility for its development. It alleged the plaintiff's 1996 title (Grant I.R 68428) was fraudulent. Justice S. Okong'o applied the Giella v Cassman Brown and Nguruman principles and the Locabail test for mandatory injunctions. He found this a case of double allocation by the Commissioner of Lands: the 1st defendant's 1980 title was first in time and took priority, the property was unavailable for allocation in 1996, and the 1st defendant had continuous possession since 2010 with no evidence of the plaintiff's possession. The plaintiff failed to establish a prima facie case, and no special circumstances justified a mandatory injunction. The application was dismissed with costs to the 1st defendant.

Key legal issues

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01

Whether the plaintiff established a prima facie case for a temporary injunction

Holding

No. The plaintiff and the 1st defendant both hold titles to the suit property; the 1st defendant's title (1980) predates the plaintiff's (1996) and takes priority, and the 1st defendant has been in continuous possession since 2010 while the plaintiff has never been in possession.

Reasoning

The court found this a case of double allocation by the Commissioner of Lands. Since the property was allocated and registered in 1980, it was unavailable for allocation in 1996. The first-in-time title takes priority. With no evidence of the plaintiff's possession and continuous occupation by the 1st defendant since 2010, the status quo should not be disturbed, and the plaintiff failed to show a prima facie case with a probability of success.

p. 3
02

Whether a temporary mandatory injunction (eviction and vacant possession) could issue

Holding

No special circumstances justified the grant of a temporary mandatory injunction.

Reasoning

Applying Locabail International Finance Limited v Agro-Export, a mandatory injunction on interlocutory application requires special circumstances and a high degree of assurance that the injunction would be justified at trial. The court found no such special circumstances on the material before it and declined to disturb the status quo.

p. 3

Legal principles established

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  • Where two titles exist over the same land, the title first in time takes priority; land already allocated and registered is not available for allocation to another party
  • A mandatory injunction will not be granted interlocutorily absent special circumstances, and only in clear cases, on a higher standard of assurance than for a prohibitory injunction

Court orders

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  1. 1.The application dated 28th November, 2016 is dismissed
  2. 2.Costs of the application awarded to the 1st defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(c) and (e)
  • Civil Procedure RulesOrder 40 Rule 1(a); Order 51 rules (1) and (3)

Cases cited (4)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    (2014) Eklr
  • Mrao Limited vs. First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Locabail International Finance Limited v Agro-Export
    (1988) 1 All ER 901
Jurisdiction invoked
Inherent jurisdiction under Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act and Order 40 Rule 1(a) and Order 51 rules (1) and (3) of 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, "Gori Investment Limited v Basco Products (K) Limited & another [2017] KEELC 1546 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1546/eng@2017-09-29

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