Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2018] KEELC 689 (KLR)

Kitamaiyu Limited v County Government - Kiambu & another [2018] KEELC 689 (KLR)

Environment and Land Court
23 November 2018
LGL. GACHERU
3,623 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Plaintiff, a company registered as proprietor of LR.Nos. 243/3, 244, 4068 and 4698 and represented by its Director Hon. Maina Wanjigi, filed two Notices of Motion dated 14th January 2018 and 16th February 2018 seeking temporary injunctions restraining the Defendants - the County Government of Kiambu and Simon Kamau Kimani, MCA for Komothai Ward - from trespassing on, entering, levelling, demolishing structures on or interfering with its parcels, and seeking police enforcement of the orders. The Plaintiff alleged trespass, uprooting of coffee bushes, felling of trees and creation of an illegal road access. The 1st Defendant denied trespass, asserting that it was merely reopening public access roads (evidenced by a 1913 Road Plan, a Survey Plan and Deed Plan No.16703) that the Plaintiff had blocked. The 2nd Defendant disclaimed any executive role and sought to be struck out. The court, guided by the Giella v Cassman Brown principles, held that the Plaintiff, as registered owner whose title is protected by the Land Registration Act and Article 40(3) of the Constitution, had a prima facie case; that infringement of its crystallised property right could not be compensated by damages; and that the balance of convenience favoured preserving the status quo existing before the alleged clearing. Whether the ways were public or private roads was left for trial. Both applications were allowed entirely, with costs to the Applicant, and the parties were directed to comply with Order 11 within 60 days and fix the suit for pre-trial.

Key legal issues

#
01

Prima facie case with probability of success

Holding

The Applicant, as registered owner of the suit parcels, established a prima facie case; even if public access roads existed, the 1st Respondent ought to have given notice before clearing them

Reasoning

The Applicant produced the grant and conveyance for the suit parcels and the 1st Respondent admitted registered ownership. Registered ownership confers absolute and indefeasible proprietorship under Sections 24, 25(1) and 26(1) of the Land Registration Act, protected by Article 40(3) of the Constitution. Whether the cleared ways were public or private roads was a disputed factual issue for trial, and no notice was given before clearing.

p. 4
02

Irreparable loss not compensable by damages

Holding

The levelling of ground, felling of trees and destruction of coffee bushes by the 1st Respondent, as an infringement of the Applicant's constitutional right to property, could not be adequately compensated by damages

Reasoning

Although the physical damage could be assessed and quantified, the Applicant's right to peaceful enjoyment of its property was being infringed. Following Niaz Mohammed Janmohammed v Commissioner for Lands, the court held that no amount of money can compensate the infringement of such a crystallised right, so the second Giella limb was satisfied.

p. 5
03

Balance of convenience

Holding

The balance of convenience tilts in favour of maintaining the status quo existing before the Respondents' alleged unlawful actions

Reasoning

The court was not in doubt on this limb, but if it were to decide on balance of convenience, the same would tilt in favour of preserving the status quo, meaning the Respondents should desist from clearing the alleged public roads until the suit is heard and determined, restoring the position before the alleged wrongful acts.

p. 5
04

Caution against determining substantive issues at interlocutory stage

Holding

The court declined to determine with finality whether the opened ways were public or private roads, as that required oral evidence at trial

Reasoning

The application was to be determined on affidavit evidence only. Citing Agip (K) Ltd v Maheshchandra Himatlal Vora, the court held it should not delve into substantive issues and make finally concluded views before oral evidence. The status of the alleged access roads was left for the main trial.

p. 4

Legal principles established

#
  • Whether or not to grant an injunction is a judicial discretion that must be exercised judicially
  • A registered proprietor's title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
  • A prima facie case means more than an arguable case - it requires evidence of infringement of a right and probability of success at trial
  • The purpose of a temporary injunction is to preserve the status quo that existed before the wrongful act
  • An infringement of a crystallised property right cannot be adequately compensated by damages

Court orders

#
  1. 1.Temporary injunction restraining the Respondents, their agents, servants, employees or any other person claiming under them from trespassing onto, entering, levelling the ground, demolishing structures on, occupying and/or interfering with the quiet possession of the suit premises comprised in LR.Nos. 243/3, 244, 4068 and 4698 pending the hearing and determination of the applications/suit
  2. 2.Enforcement of the orders directed through the Inspector General of Police (via OCPD Ruiru Police Station / Officer in Charge of Mugutha Police Post)
  3. 3.Costs of the two applications awarded to the Applicant
  4. 4.Parties directed to comply with Order 11 within 60 days and thereafter fix the matter for Pre-trial before the Deputy Registrar

Authorities

#

Legislation

  • Land Registration ActSection 26(1)(a)&(b)
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1)
  • The Constitution of KenyaArticle 40(3)
  • Public Roads and Roads of Access Act Cap 399 Laws of KenyaSection 2
  • Civil Procedure RulesOrder 11

Cases cited (7)

  • Nyutu & Others v Gatheru & Others
    (1990) KLR 554
  • Agip (K) Ltd v Maheshchandra Himatlal Vora & Others
    Civil Appeal No.213 of 1999
  • Giella v Cassman Brown & Co. Ltd
    1973 E.A 358
  • Mrao Ltd v First American Bank of Kenya Ltd & Others
    (2003) KLR 123
  • Noormohammed Janmohammed v Kassam Ali Virji Madham
    (1953) 20 LRK 8
  • Niaz Mohammed Janmohammed v Commissioner for Lands & 4 Others
    (1996) eKLR
  • Agnes Adhiambo Ojwang v Wycliffe Odhiambo Ojijo
    Kisumu HCCC No.205 of 2000
Jurisdiction invoked
Inherent jurisdiction of the court to grant interim equitable relief in an interlocutory application in a land suit (injunctive reliefs under the court's discretion)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (11)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kitamaiyu Limited v County Government - Kiambu & another [2018] KEELC 689 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/689/eng@2018-11-23

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