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ELCDismissedNotice of Motion dated 21st February 2017 (suit number not stated in judgment)· [2017] KEELC 3766 (KLR)

Membley Park Residents Association v The Presbyterian Foundation [2017] KEELC 3766 (KLR)

Environment and Land Court
25 May 2017
2,164 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A residents' association lost its bid to stop a church and school because it sued too late, lacked standing, and couldn't challenge the owner's registered title.

What this practically means

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Executive summary

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Membley Park Resident Association, a welfare association for residents of Membley Park Estate, Ruiru, moved the court by Notice of Motion dated 21st February 2017 seeking temporary injunctions restraining the Presbyterian Foundation from further developing its property L.R. No. 14870/510 in Jerusalem Court or operating a church or school there, and a mandatory injunction compelling demolition of structures already erected, on the ground that the property is in a controlled single-dwelling residential zone and subject to a Grant (IR 511103/1) restricting use to residential purposes, with development allegedly undertaken without change-of-use approval despite a planning enforcement notice from Kiambu County. The Defendant admitted building a church and school but produced a County Government approval letter dated 23rd January 2015; the complete school block was intended to open in January 2017 and construction had cost about Kshs. 40,000,000. Applying the Giella v Cassman Brown principles and Mbuthia v Jimba Credit Corporation, Justice L. Gacheru held the Plaintiff failed to establish a prima facie case: the Defendant is an indefeasible registered proprietor under sections 24, 25 and 26 of the Land Registration Act; the County approval letter contradicted the claim of unauthorized development; breach of the Grant conditions was a matter of evidence not decidable interlocutorily; and neither Kiambu County, the Chief Land Registrar nor the National Land Commission was a party, so the Plaintiff could not enforce the enforcement notice or the Grant conditions on their behalf. Further, injunctions are preventive and the structures were already built; the Plaintiff was also culpably dilatory during construction. The application was dismissed entirely with costs to the Defendant.

Key legal issues

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01

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

Holding

No prima facie case was established; the Defendant holds indefeasible title under section 25(1) of the Land Registration Act, holds an approval from Kiambu County Government dated 23rd January 2015, and breach of grant conditions is a matter of evidence not determinable interlocutorily

Reasoning

The court held the Defendant, as registered proprietor, enjoys absolute and indefeasible ownership subject only to encumbrances endorsed on the title. The County approval letter of 23rd January 2015 contradicted the claim of unauthorized development. The alleged breach of the Grant conditions could not be decided without evidence from the Ministry of Lands, the Chief Land Registrar or National Land Commission, none of whom are parties. Following Mbuthia v Jimba Credit, no final findings of contested fact may be made at interlocutory stage.

p. 4
02

Whether a mandatory injunction could issue to compel demolition of already-erected structures

Holding

No; injunctions are preventive and cannot issue where the event intended to be enjoined has already occurred, and the Plaintiff was guilty of delay in seeking relief during construction

Reasoning

The court observed the school block was built between 2015 and 2017 and was complete, yet the Plaintiff waited until construction was finished before moving to court. The court questioned the Plaintiff's inaction during construction, invoked the maxim that an applicant must come to court with clean hands, and relied on Mavoloni Company Ltd v Standard Chartered Estate Management Ltd that an injunction cannot issue once overtaken by events.

p. 4
03

Whether the Plaintiff had standing to enforce the planning Enforcement Notice and the Grant conditions

Holding

The Plaintiff lacked standing to enforce the County's Enforcement Notice or the conditions in the Grant issued by the Commissioner of Lands, as neither Kiambu County Government, the Chief Land Registrar nor the National Land Commission was a party

Reasoning

The Enforcement Notice was issued by the County Government of Kiambu, which was neither party nor complainant; a private association cannot litigate on its behalf. Similarly, the Grant IR 511103/1 was issued by the Commissioner of Lands, whose successors (the Chief Land Registrar and National Land Commission) had not complained of breach of the special conditions. The Plaintiff therefore could not found a prima facie claim on either instrument.

p. 4

Legal principles established

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  • A resident association cannot sue to enforce planning enforcement notices issued to a third party by the County Government; only the issuing authority or its beneficiaries under the grant may complain of breach of special conditions
  • An injunction will not issue to restrain an act that has already been completed; the remedy is preventive only

Court orders

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  1. 1.The Notice of Motion dated 21st February 2017 is dismissed entirely
  2. 2.Costs of the application awarded to the Defendant/Respondent
Jurisdiction invoked
Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules (injunction jurisdiction)

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, "Membley Park Residents Association v The Presbyterian Foundation [2017] KEELC 3766 (KLR)", Case Analysis (2017). Notice of Motion dated 21st February 2017 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3766/eng@2017-05-25

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