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ELCAllowedNot stated in the judgment extract (suit filed 14th March 2016; Notice of Motion dated 11th March 2016)· [2017] KEELC 3299 (KLR)

Silipet Properties Limited & another v Chege Mwaura & another [2017] KEELC 3299 (KLR)

Environment and Land Court
24 February 2017
2,851 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Nairobi's Environment and Land Court ruled that a county cannot lease a road reserve to a private person and ordered a container blocking an access lane removed within 30 days.

What this practically means

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Executive summary

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The plaintiffs, the registered proprietor of L.R No. 209/1954/2 in Nairobi and its director, filed suit on 14th March 2016 seeking eviction of the 1st defendant from the access road to the suit property and a permanent injunction, together with a Notice of Motion dated 11th March 2016 seeking temporary prohibitory and mandatory injunctions. They alleged that the 1st defendant had erected a metallic container on the 10 feet access lane adjacent to the suit property, blocking delivery of construction materials for an approved development. The 1st defendant opposed, asserting he occupied the site under a Temporary Occupation Licence issued by the 2nd defendant (the County) at an annual fee of Kshs 7,500, that the lane was a road reserve, and that the suit was malicious. The 2nd defendant maintained the lane was a road reserve vested in it, over which it had discretion to lease temporarily. Applying Giella v Cassman Brown and the higher threshold for mandatory injunctions from Locabail, Shepherd Homes, Redland Bricks and Jaj Super Power, the court held that the County holds the lane in trust for the public and abutting owners; that the allocation to the 1st defendant was made without consultation and without following the procedure for allocating public land; and that a road reserve is a public road which cannot be blocked without due process. The allocation was wrongful and the 1st defendant's occupation illegal. Irreparable, unquantifiable harm was established. The application was allowed, with the 1st defendant ordered to remove the container within thirty days, the Pangani OCS to oversee enforcement, and costs of the application awarded to the plaintiffs. Judgment delivered at Nairobi on 24th February 2017 by S. Okong'o, J.

Key legal issues

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01

Whether the plaintiffs established a strong prima facie case warranting interlocutory injunctive relief

Holding

Yes; the plaintiffs established a strong case with a high probability of success because the allocation of the lane to the 1st defendant was wrongful and his occupation illegal.

Reasoning

The court found the 10 feet lane vested in the 2nd defendant but held in trust for the public and abutting owners. The 2nd defendant allocated it to the 1st defendant without consulting the plaintiffs or area residents and without following the procedure for allocating public land. The container completely blocked the lane, defeating its purpose as an access road. The allocation was therefore wrongful and the 1st defendant's occupation illegal, and the fact that others also blocked the lane did not cure the illegality.

p. 4
02

Whether the County has unfettered discretion over the road reserve

Holding

No; the 2nd defendant holds the lane in trust for the public and abutting property owners and cannot deal with it inconsistently with its reserved purpose without consulting them.

Reasoning

The court rejected the 2nd defendant's claim that it could do whatever it pleased with the land on which the container stood. As trustee of the lane, the County must deal with it consistently with the purposes for which it was reserved and in the interests of area residents. Section 2 of Cap 399 defines a road reserve as a public road, which cannot be blocked or closed without due process.

p. 4
03

Whether the threshold for a temporary mandatory injunction was met

Holding

Yes; the court applied the higher standard from Locabail, Shepherd Homes and Redland Bricks and found the plaintiffs' case unusually strong and clear.

Reasoning

A temporary mandatory injunction effectively determines the suit without trial and requires more than a prima facie case - a very strong case likely to succeed, with special circumstances or clear cases of simple, easily remediable acts. The court held that the plaintiffs met both the normal Giella conditions and this higher threshold, since the container's removal was a simple and summary act and irreparable, unquantifiable harm was shown.

p. 3
04

Whether the plaintiffs would suffer irreparable harm

Holding

Yes; the loss likely to be suffered if the injunction was not granted was unquantifiable and not compensable in damages.

Reasoning

The plaintiffs, as registered proprietor of the suit property, were entitled to the benefit of the access lane under section 25(1) of the Land Registration Act. The container blocked movement through the lane, impeding delivery of construction materials and development of the property. The court was persuaded that this loss was not capable of being compensated in damages, satisfying the second Giella condition.

p. 5

Legal principles established

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  • A public body holding a road reserve does so in trust for the public and abutting owners, and cannot allocate it inconsistently with that purpose without consultation or due process.
  • A temporary mandatory injunction requires an unusually strong and clear case, a higher threshold than a prohibitory injunction.
  • A road reserve is a public road under the Public Roads and Roads of Access Act and may not be blocked or closed without due process.

Court orders

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  1. 1.The plaintiffs' application dated 11th March 2016 allowed in terms of prayers 3 and 4 thereof
  2. 2.A temporary prohibitory and mandatory injunction issued restraining the 1st defendant from occupying/blocking the access lane adjacent to L.R No. 209/1954/2
  3. 3.The 1st defendant shall remove the container he has placed on the lane adjacent to L.R No. 209/1954/2 forthwith and in any event not later than thirty (30) days from the date of the order
  4. 4.The Pangani OCS to oversee enforcement of the orders (prayer 3)
  5. 5.Costs of the application to the plaintiffs

Authorities

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Legislation

  • Land Registration ActSection 25(1)
  • Public Roads and Roads of Access Act, Chapter 399 Laws of KenyaSection 2

Cases cited (5)

  • Giella –vs- Cassman Brown & Company Ltd.
    [1973] E.A. 358
  • Locabail International Finance Limited v Agro-Export
    (1988) 1 All ER 901
  • Shepherd Homes Ltd. vs. Sandham
    [1971] 1 ch.304
  • Redland Bricks Ltd vs. Morris
    [1970] AC 652
  • Jaj Super Power Cash and Carry Limited vs. Nairobi City Council & 2 others
    Nairobi, Civil Appeal No. 11 of 2002
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning access to land (L.R No. 209/1954/2) in Nairobi County; Land Registration Act, 2012 and Public Roads and Roads of Access Act (Cap 399) considered

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Silipet Properties Limited & another v Chege Mwaura & another [2017] KEELC 3299 (KLR)", Case Analysis (2017). Not stated in the judgment extract (suit filed 14th March 2016; Notice of Motion dated 11th March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3299/eng@2017-02-24

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