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ELCDismissedPetition No. (not stated in judgment)· [2018] KEELC 622 (KLR)

Jospeh Kaberia Kumari v County Government of Meru [2018] KEELC 622 (KLR)

Environment and Land Court
14 November 2018
ECE. C. Cherono
1,861 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who could not prove with a proper survey that his building stayed off a road reserve lost his bid to block demolition.

What this practically means

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Executive summary

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The Petitioner, Joseph Kaberia Kumari, filed a petition on 6th August 2014 against the County Government of Meru seeking a declaration of his right to own, utilize and develop land parcel AMWATHI/MAUA/3976 without interference, a permanent injunction restraining demolition of his building, together with a contemporaneous Notice of Motion for interim injunction founded on Articles 22, 23 and 40 of the Constitution. A temporary injunction was issued on 13th August 2014 pending inter-partes hearing. The Respondent's position was that it did not dispute the Petitioner's title but contended that part of his building encroached on a road reserve, which is public land, and that the building had been marked for demolition early in construction but the Petitioner ignored the marking. At trial, the Petitioner relied on a letter from the District Land Adjudication and Settlement Office, a change-of-user notice in the Daily Nation of 19th March 2013, and a report by Archstudio services to show his building was properly sited. The Respondent invoked the Giella v Cassman Brown principles, arguing no prima facie case, irreparable loss or balance of convenience was shown. The court framed one issue: whether the Petitioner satisfied the principles for the grant of an injunction. Applying the Court of Appeal decisions in Kenya National Highway Authority v Shalien Mughal and Cycad Properties Ltd v Attorney General, the court held that property rights extend only so far as the property has not encroached on land set aside for public purpose, and that encroachment can only be excluded by a survey map from a qualified surveyor or Land Registrar - evidence the Petitioner did not produce. The petition was dismissed with no order as to costs.

Key legal issues

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01

Whether the Petitioner established the Giella principles for an injunction

Holding

The Petitioner failed to prove the principles for the grant of injunction; he did not demonstrate by survey evidence that his building had not encroached on the road reserve

Reasoning

The Respondent did not dispute the Petitioner's title to the parcel but contended he encroached on a road reserve. The burden lay on the Petitioner to show no encroachment. The only proof of ownership was a provisional adjudication record, and the Archstudio report was not by a qualified surveyor or Land Registrar. Without such survey evidence, no prima facie case was established and the injunction could not issue.

p. 2
02

Whether the Petitioner's Article 40 right to property was infringed

Holding

No infringement was established; property rights are qualified to the extent of encroachment on public land set aside for public purpose

Reasoning

Relying on the Kenya National Highway Authority v Shalien Mughal and Cycad Properties decisions of the superior courts, the court held that rights over property do not extend to land lawfully alienated for public purpose such as a road reserve. Since the Petitioner failed to disprove encroachment on the road reserve, the threatened demolition did not violate his constitutional right to property.

p. 3

Legal principles established

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  • A proprietor is entitled to his property only to the extent that it has not encroached upon land acquired and set aside for a public purpose; a right to property must be exercised within the framework of the law
  • A party asserting that his building does not encroach on a road reserve must demonstrate this by way of a survey map drawn by a qualified surveyor or a Land Registrar

Court orders

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  1. 1.Declined to grant the prayers sought in the petition and the Notice of Motion
  2. 2.Dismissed the petition with no order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23, 40
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of Individuals) High Court Practice and Procedure Rules 2006Rules 20 & 21
  • Registered Land ActSections 28(b) and 30

Cases cited (4)

  • GIELLA VS CASSMAN BROWN & CO. LTD
    (1973) EA 358
  • AMERICAN CYNAMO CO. VS ETHICAN LTD
    C.A No. 5 of 1979, reported in 1975 (ALL E.R 504)
  • KENYA NATIONAL HIGHWAY AUTHORITY VS SHALIEN MUGHAL & 5 OTHERS
    (2017) E K.L.R
  • CYCAD PROPERTIES LIMITED & ANOTHER VS ATTORNEY GENERAL & 4 OTHERS
    (2013) e K.L.R
Jurisdiction invoked
Articles 22, 23 and 40 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Jospeh Kaberia Kumari v County Government of Meru [2018] KEELC 622 (KLR)", Case Analysis (2018). Petition No. (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/622/eng@2018-11-14

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