Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedE.L.C. Case No. 168 of 2009· [2018] KEELC 1974 (KLR)

Franklin Kamathi Kamau v Tercy Investments Limited [2018] KEELC 1974 (KLR)

Environment and Land Court
12 September 2018
KBK. BOR
2,150 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Nairobi landowner with a registered title won a permanent injunction blocking a company from interfering with his property.

What this practically means

#

Executive summary

#
The Plaintiff, donee of a power of attorney from Abraham Mwangi Njihia and later registered proprietor, sued for a permanent injunction and general damages, alleging the Defendant was trespassing on and interfering with his quiet possession of L.R. No. Nairobi/Block 63/748 at Jamuhuri Estate, Nairobi, where he had built Frank Apartments. The Defendant asserted it had purchased the Suit Property from the donor in 2004, paid Kshs. 491,775/=, taken possession, fenced it and registered a caution, and counterclaimed for a declaration of ownership, a mandatory injunction, a permanent injunction against the Plaintiff, damages for trespass and the cost of materials. The court heard the donor, the Plaintiff, a Land Registrar, the Defendant's director and a Deputy Registrar. The Deputy Registrar discredited a court order the Defendant relied on, confirming it did not emanate from the court records. The court found the Defendant's payments were largely referable to Nairobi Block 63/759, that it did not prove payment of the full purchase price, and that no evidence showed the court order contemplated by clause 8 of the sale agreement was ever lifted, so monies paid were to be credited to the other plot. The Defendant's remedy lay against the donor under special condition 7, and it failed to prove fraud or collusion. The Plaintiff's claim for a permanent injunction succeeded and the counterclaim was dismissed, with costs to the Plaintiff. The court noted the chargee, Housing Finance Company of Kenya Limited, was not joined despite its interest.

Key legal issues

#
01

Ownership of the Suit Property

Holding

The court found the Plaintiff proved ownership of L.R. No. Nairobi/Block 63/748 on a balance of probabilities and entitled him to a permanent injunction.

Reasoning

The donor executed a power of attorney in favour of the Plaintiff, who took possession, developed the property and was registered as proprietor in 2012 with a certificate of lease. The Defendant, not being a party to that arrangement, failed to prove payment of the full purchase price or that the sale to it had survived. No evidence showed the court order under the sale agreement was lifted, so clause 8 operated to credit monies to the other plot.

p. 3
02

Defendant's counterclaim and fraud allegation

Holding

The counterclaim was dismissed; the Defendant failed to prove fraud, collusion or proprietary rights.

Reasoning

The Defendant's contract was with Abraham Mwangi Njihia, not the Plaintiff, and its remedy lay in the agreed special condition 7. It did not prove payment of the full purchase price for either plot, and the payments made were referable to Nairobi Block 63/759. Its alleged procurement of title by fraud and collusion was not established to the required standard.

p. 3

Legal principles established

#
  • A claimant bears the burden of proving its case on a balance of probabilities.
  • A registered proprietor who proves ownership is entitled to a permanent injunction protecting quiet possession.

Court orders

#
  1. 1.Permanent injunction restraining the Defendant from threatening, trespassing, evicting, erecting, obstructing or in any other way interfering with the Plaintiff's quiet possession of L.R. No. Nairobi/Block 63/748
  2. 2.Counterclaim dismissed with costs to the Plaintiff
  3. 3.Plaintiff awarded the costs of the suit
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Franklin Kamathi Kamau v Tercy Investments Limited [2018] KEELC 1974 (KLR)", Case Analysis (2018). E.L.C. Case No. 168 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1974/eng@2018-09-12

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