Miliki Limited v County Government Lamu & 2 others [2018] KEELC 3736 (KLR)
The bottom line
#A Kenyan court stopped a county government from building a road on private land without notifying, consulting, or compensating the owner.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
Yes. The Plaintiff is the undisputed registered proprietor of the suit property and the Defendants constructed a road on a portion other than that earmarked for surrender, without consultation or compensation.
The Defendants did not dispute the Plaintiff's title, evidenced by a title deed issued on 28 August 2007. Under sections 25 and 26 of the Land Registration Act, the Plaintiff's title is prima facie indefeasible. The Defendants' contention that a public access road must lie on the periphery was unsupported by any law or practice placed before the court. Constructing a road on the land without notifying the Plaintiff infringed the Plaintiff's rights under Articles 40, 47 and 50 of the Constitution.
Whether the Defendants' construction constituted trespass justifying an interlocutory injunction
Yes. Constructing a road on private property without notification, consultation or compensation constitutes trespass which the court must restrain in the interest of justice.
The court found the Defendants constructed a road on the suit property on a portion other than that already earmarked for road access in the approved sub-division. Even if the Defendants believed the access road should be on the periphery, they were obliged under Articles 40, 47 and 50 of the Constitution to notify and consult the Plaintiff fairly before acting. The court held such unauthorised acts of impunity amount to trespass, warranting prohibitory injunction notwithstanding the public interest in the KENSUP project.
Whether public interest in infrastructural development defeats the injunction
No. Public interest in the KENSUP road project did not justify arbitrary interference with constitutionally protected private property rights.
The 2nd and 3rd Defendants argued that an injunction would delay infrastructural development and cause loss of public funds. The court nonetheless held that the Defendants' lawful course was to consult, notify and compensate the registered proprietor as required by Articles 40, 47 and 50 of the Constitution before entering the land. Nothing before the court supported the claimed rule that public access roads must be on the periphery of private property, so the public interest argument could not override the Plaintiff's prima facie rights.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
- Where the applicant establishes a prima facie case and the court is in doubt, the court decides on a balance of convenience
- A public interest project does not entitle state actors to construct on private land without notification, consultation or compensation
Court orders
#- 1.Interlocutory prohibitory injunction restraining the Defendants, their officials and agents from trespassing, constructing or interfering with the Plaintiff's lawful use and occupation of the suit property pending hearing and determination of the suit
- 2.Plaintiff's application dated 13th March 2017 allowed with costs against the Defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miliki Limited v County Government Lamu & 2 others [2018] KEELC 3736 (KLR)", Case Analysis (2018). (not stated in the judgment extract; suit over Lamu/Block II/119). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3736/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.