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ELCDismissed· [2018] KEELC 4076 (KLR)

Franco Nderitu Kanyari & 6 others v County Government of Nyandarua [2018] KEELC 4076 (KLR)

Environment and Land Court
28 February 2018
MOM.C. Oundo
2,278 words in judgment
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The bottom line

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An allotment letter alone is not proof of land ownership in Kenya; the court refused to protect plot claimants who never met their allocation conditions or obtained titles.

What this practically means

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Executive summary

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The Applicants, seven plaintiffs, moved the Environment and Land Court at Nyahururu by Notice of Motion dated 7th April 2017 under Section 63(c) and (e) of the Civil Procedure Act and Order 40 rule 1 of the Civil Procedure Rules, seeking a temporary injunction against the County Government of Nyandarua from entering, occupying, allocating or interfering with six plots in Gathanji Township. They claimed allocations: three by the Commissioner of Lands in 1995 and four by provisional allotment letters from the Nyandarua District Plots Allocation Committee in 2012, and alleged the Respondent threatened eviction on the basis that their allotment letters were forgeries. The Respondent countered that the letters were forgeries, that the plots had been allocated to squatters, that allotment letters are not documents of title, and that the Applicants had not complied with the conditions of the allotment letters. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court held that the Applicants had not shown compliance with the allotment letters' conditions, held no titles to the suit properties, and therefore could not claim registered ownership or benefit from injunctive orders. The Applicants also failed to demonstrate irreparable injury not compensable by damages. The application was dismissed with no orders as to costs and the interim orders in force were vacated.

Key legal issues

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01

Whether the Applicants established a prima facie case with a probability of success

Holding

They did not, as they hold only allotment letters, did not comply with the conditions therein, and do not hold titles to the suit properties

Reasoning

The court applied the Mrao definition of a prima facie case but declined to determine the genuineness of the allotment letters at interlocutory stage. It found instead that the Applicants had not shown compliance with the terms of the letters of allotment, including payment of stand premium within 30 days, and that both parties confirmed they hold no titles. Citing Joseph Arap Ng'ok, title arises only after allotment, satisfaction of conditions and issuance of a title document. Accordingly the Applicants could not claim proprietary rights meriting an injunction.

p. 3
02

Whether the Applicants demonstrated irreparable injury not compensable by damages

Holding

They did not; any loss could be compensated by damages or alternative allocation

Reasoning

The second Giella principle requires irreparable injury incapable of adequate compensation in damages. The court found the Applicants had not shown the kind of irreparable injury they would suffer, and the Respondent had submitted it was capable of compensating them by damages or allocation of alternative plots if it ultimately did not succeed. This failure independently justified refusal of the interlocutory injunction.

p. 4

Legal principles established

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  • A holder of a letter of allotment who has not met its conditions and obtained title cannot claim to be the registered owner of land or benefit from injunctive orders
  • Title to landed property only comes into existence after issuance of a letter of allotment, meeting the conditions in the letter, and actual issuance of the title document

Court orders

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  1. 1.The Notice of Motion dated 7th April 2017 seeking a temporary injunction is dismissed
  2. 2.The interim orders in force are vacated
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 63(c), (e)
  • Civil Procedure RulesOrder 40 rule 1
  • Land Registration ActSection 26(1)

Cases cited (6)

  • MRAO vs. FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Giella vs Cassman Brown
    [1973] EA 358
  • Joseph Tobiko Kelempu vs. Co-operative Management Committees of Emparnet Farmers Dairy Co-operative Society Ltd
    [2017] eKLR
  • Nasir Maalim Arte vs Kenya Power and Lighting Co. Ltd
    [2015] eKLR
  • Joseph Arap Ng'ok vs. Justice Moijo Ole Keiwua
    NAI Civil Application No. 60 of 1997
  • E.A. Industries v. Trufoods
    [1972] E.A. 420
Jurisdiction invoked
Section 63(c) and (e) of the Civil Procedure Act and Order 40 rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Franco Nderitu Kanyari & 6 others v County Government of Nyandarua [2018] KEELC 4076 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4076/eng@2018-02-28

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