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ELCPartially AllowedNot stated in the judgment as provided· [2017] KEELC 3840 (KLR)

Intime Investments Limited v Nairobi City Council & 7 others [2017] KEELC 3840 (KLR)

Environment and Land Court
3 November 2017
2,190 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court confirmed a company's land title, ordered intruders permanently off the property, and awarded the owner Kshs 2.5 million in damages.

What this practically means

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Executive summary

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The plaintiff, a company represented through its director Bhavin Ramji Gudka (PW1), sued as the registered owner of leasehold property L.R No. 209/2252/6, bought from K.R. Gudka and A.R. Gudka who had acquired it at a 2002 public auction. On 9/7/2014 agents of the 1st defendant evicted the plaintiff's tenant, Glory Car Hire, destroyed property and harassed the plaintiff's occupants. The plaintiff sought a declaration of ownership, a permanent injunction, police assistance in enforcement, and general and exemplary damages. The 1st defendant pleaded that the plaintiff's title was irregularly issued over public land, but never appeared at trial after filing a defence; the defence case was marked closed on 18/5/2017 after counsel's non-appearance. The 8th defendant, the National Land Commission, was served and represented but never tendered evidence. The court found that under Article 40 of the Constitution and Section 26 of the Land Registration Act, the plaintiff's proprietorship rights crystallized upon registration, and no evidence challenged the legality of the title; an adverse presumption was drawn from the 1st defendant's failure to produce documents. Judgment was entered for the plaintiff: a declaration of lawful registered ownership and private property, a permanent injunction against the 1st to 7th defendants, an order that the OCS Parklands Police Station assist in enforcement, general damages of Kshs. 2,500,000 against the 1st to 7th defendants jointly and severally, interest at court rates on the damages, and costs against all defendants. The 8th defendant was not condemned to pay damages.

Key legal issues

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01

Whether the plaintiff is the rightful owner of the suit property

Holding

Yes - the plaintiff's certificate of title under the repealed Registration of Titles Act conferred indefeasible rights upon registration, and no evidence challenged its legality.

Reasoning

The court invoked Article 40 of the Constitution and Section 26 of the Land Registration Act, holding that the plaintiff's rights crystallized upon registration on 28/5/2014. The 1st defendant pleaded irregular allocation and public land but failed to adduce any evidence; an adverse inference was drawn from its failure to produce documents it possessed, following the Kepha Maabe authority.

p. 3
02

Whether the prayer for permanent injunction is merited

Holding

Yes - as absolute and indefeasible owner, the plaintiff was entitled to an injunction protecting its constitutional property rights against the 1st to 7th defendants.

Reasoning

Having established ownership, the court held it incumbent to give orders ensuring the plaintiff's Article 40 rights are observed, protected and respected, making a permanent injunction the appropriate remedy against the invading and trespassing defendants.

p. 4
03

Whether the plaintiff is entitled to damages

Holding

Yes - general damages of Kshs. 2,500,000 against the 1st to 7th defendants jointly and severally for the wanton invasion and destruction, with interest at court rates; the 8th defendant was not condemned to pay damages.

Reasoning

Photographic evidence depicted the viciousness of the invasion masterminded by the 1st defendant. Despite claiming the land was public, the 1st defendant shied off from adducing evidence. Relying on comparative awards of Kshs. 3,000,000 and Kshs. 2,000,000, the court found the claimed Kshs. 2,500,000 reasonable. The 8th defendant's lackluster conduct was criticized but no evidence showed participation.

p. 5

Legal principles established

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  • A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner, challengeable only on proof of fraud, misrepresentation or illegal, unprocedural or corrupt acquisition.
  • Rights of proprietorship crystallize upon registration, and failure to adduce evidence permits an adverse presumption against the party withholding documents.
  • It is a fundamental duty of the state and every state organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.

Court orders

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  1. 1.A declaration that the Plaintiff is the lawful and registered proprietor of the Property known as L.R No. 209/2252/6 and that the said parcel of land is private property.
  2. 2.A permanent injunction restraining the 1st to 7th Defendants, their agents, servants and/or employees from entering, remaining upon, trespassing, disposing, alienating, encumbering, charging, interfering, transferring or in any way dealing with L.R No. 209/2252/6.
  3. 3.An order directing the Officer Commanding Station, Parklands Police Station to assist the Plaintiff in enforcement of the injunction.
  4. 4.General damages of Kshs. 2,500,000 awarded against the 1st to 7th defendants jointly and severally.
  5. 5.Costs of the suit awarded to the plaintiff as against all the defendants.
  6. 6.Interest at court rates on the award of damages as against the 1st to 7th defendants.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 21
  • Land Registration ActSection 26
  • Registration of Titles Act (Cap 281) (repealed)

Cases cited (3)

  • Kepha Maabe & 365 others vs Benson I. Mwangi and City Council of Nairobi
    Civil Appeal No. 8/2004
  • Arnachestry Limited vs Attorney General
    (2014) eKLR
  • Simon Ndungu Mungai & Anor. Vs. Municipal Council of Kiambu
    (2011) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land and property in land; rights under Article 40 of the Constitution of Kenya, 2010

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, "Intime Investments Limited v Nairobi City Council & 7 others [2017] KEELC 3840 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3840/eng@2017-11-03

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