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ELCDismissedMSA CMCC 2892 of 2007 (Notice of Motion dated 4th August 2015)· [2017] KEELC 2996 (KLR)

Kenya Railways Corporation v Zaharia Mohamed Mawia & 4 others [2017] KEELC 2996 (KLR)

Environment and Land Court
3 May 2017
AOA. Omollo
1,375 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Kenya Railways Corporation moved the court by notice of motion dated 4th August 2015 seeking a temporary injunction to restrain the 1st and 2nd Defendants from evicting it and its tenants from, demolishing structures on, or otherwise interfering with its possession of Msa/Block 1/525 and Msa/Block 1/526, pending determination of the suit. The applicant claimed ownership derived from East African Ports & Harbours of Kenya through gazette notices Nos 440 of 12.7.1963 and No 29 of 22.2.1986, and alleged the respondents colluded to sub-divide and register the land in the 1st Respondent's name and used goons and police to demolish its structures. The 1st Respondent countered that she was allocated the plots by the defunct Municipal Council of Mombasa, holds certificates of title issued on 7th December 1999, and paid Kshs 740,000 as compensation for the applicant's structures following valuation, per a 2007 bankers cheque which the applicant never refunded or contested. The 2nd Respondent stated the applicant produced no ownership documents. Applying the three Giella-type principles, the court found no prima facie case: the applicant had no title, did not plead under which paragraph of the gazette notices the property was classified, and did not prove the land belonged to East African Ports and Harbours Ltd. Irreparable loss failed because compensation for the structures was not contradicted, and the balance of convenience favoured the registered owner, possession being unclear. The application was dismissed, interim orders of 5th August 2015 were vacated, and each party was to bear its own costs.

Key legal issues

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01

Whether the applicant demonstrated a prima facie case

Holding

No - the applicant produced no title and did not plead under which paragraph of the gazette notices the suit property was classified

Reasoning

The applicant referred to the suit land as unsurveyed and produced no ownership documents. The gazette notices relied on vested unalienated crown land or Trust Land Board land reserved for the East African Railways & Harbours Administration for purposes (a)-(g), but the applicant did not plead under which paragraph the property fell, nor did it demonstrate that the property belonged to East African Ports and Harbours Ltd.

p. 3
02

Irreparable loss

Holding

Not established - the applicant did not contradict evidence that it received compensation of Kshs 740,000 for the structures from the 1st Respondent

Reasoning

The 1st Respondent annexed valuation letters of 2002 and a bankers cheque dated 5th February 2007 issued as compensation for structures on the suit property. The applicant did not file a supplementary affidavit contesting these facts, so its claim that demolition would cause irreparable harm could not stand, damages appearing to be an adequate remedy.

p. 3
03

Balance of convenience

Holding

Against the applicant - possession was unclear and the 1st Respondent is the registered owner entitled to enjoyment of the land

Reasoning

The photographs showed some demolition had already taken place and it was not clear who was in possession. The court held that a registered owner is entitled to enjoy the property until fraud in acquisition is proved against her under section 26 of the Land Registration Act, which the applicant had not shown at the interlocutory stage.

p. 3

Legal principles established

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  • A registered owner is entitled to enjoy the suit property until it is proved the title was acquired through fraud to which the owner is party, per section 26 of the Land Registration Act
  • A party seeking an interlocutory injunction must establish a prima facie case, irreparable harm and balance of convenience; failure on the first two disposes of the application

Court orders

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  1. 1.The notice of motion dated 4th August 2015 is dismissed
  2. 2.The interim orders issued on 5th August 2015 are vacated forthwith
  3. 3.Each party shall bear their respective costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
  • Civil Procedure ActSections 1A, 3A and 63(e)
  • Constitution of Kenya, 2010Article 40
  • Land Registration ActSection 26

Cases cited (1)

  • Kenya Finance Co Ltd vs Afraha Education Society
    (2001) IEA 86
Jurisdiction invoked
Order 40 of the Civil Procedure Rules, Sections 1A, 3A and 63(e) of the Civil Procedure Act and Article 40 of the Constitution

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, "Kenya Railways Corporation v Zaharia Mohamed Mawia & 4 others [2017] KEELC 2996 (KLR)", Case Analysis (2017). MSA CMCC 2892 of 2007 (Notice of Motion dated 4th August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2996/eng@2017-05-03

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