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ELCDismissedNotice of Motion dated 27th February 2017 (suit not otherwise numbered in the judgment)· [2017] KEELC 2426 (KLR)

Kiplagat Kosgei & 2 others v Richard Kipkoech Ruto & 2 others [2017] KEELC 2426 (KLR)

Environment and Land Court
16 June 2017
DOD. O. Ohungo
684 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court refused to stop government construction on land registered to the State, because the community couldn't prove a strong enough case.

What this practically means

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Executive summary

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The plaintiffs, through a Notice of Motion dated 27th February 2017 brought under Order 40 rules 1 and 2 of the Civil Procedure Rules, sought a temporary injunction restraining the 1st defendant, the local assistant chief, his employers, servants and agents, from trespassing on, encroaching on, alienating or continuing construction on Njoro/Ngata Block 5/206, pending the hearing of the suit. The plaintiffs deposed, through the 1st plaintiff Kiplagat Kosgei, that the parcel has hosted a water tank serving about 20,000 local people since after 1983, that the water project is registered as a self-help group supplying water to the community, and that the green card shows the Government of Kenya as registered owner with 'Water Tank' noted in the property section. The defendants, represented by the Attorney General, did not file a replying affidavit or grounds of opposition, but counsel submitted that the land and the administrative office under construction belong to the Government of Kenya. The court, Ohungo J, held that there was no dispute that the registered proprietor is the Government of the Republic of Kenya and that the construction is of a government administrative office. A registered proprietor is entitled to the full benefits of proprietorship, including the protection of the law. The plaintiffs therefore failed to establish a prima facie case with a probability of success, and the court declined to consider the other limbs of the Giella v Cassman Brown test. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether an interlocutory injunction should issue restraining construction by the Government on land registered in its name

Holding

The application fails; no prima facie case with probability of success was shown since the suit property is registered to the Government of Kenya.

Reasoning

The court accepted the undisputed facts that the registered proprietor of the suit property is the Government of the Republic of Kenya and that the construction is of a government administrative office. Given the green card showing government ownership, the registered proprietor enjoys the full benefits and legal protection of registration. Consequently the plaintiffs, who could not demonstrate a prima facie case, could not meet the first limb of the Giella v Cassman Brown test, making consideration of the remaining limbs unnecessary.

p. 2

Legal principles established

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  • A registered proprietor of land is entitled to the full benefits of proprietorship, including the protection afforded by registration.
  • Where a plaintiff fails to establish a prima facie case with probability of success, the court need not inquire into the other limbs of the Giella test.

Court orders

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  1. 1.The Notice of Motion dated 27th February 2017 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1 and 2

Cases cited (1)

  • Giella vs Cassman Brown and Company Limited
    (1973) EA 358
Jurisdiction invoked
Order 40 rules 1 and 2 of the Civil Procedure Rules (interlocutory injunction application within a pending suit)

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, "Kiplagat Kosgei & 2 others v Richard Kipkoech Ruto & 2 others [2017] KEELC 2426 (KLR)", Case Analysis (2017). Notice of Motion dated 27th February 2017 (suit not otherwise numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2426/eng@2017-06-16

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