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ELCDismissedNotice of Motion dated 7th April 2017 (suit re Land Title No. Laikipia Nyahururu/5970)· [2018] KEELC 4198 (KLR)

Joseph Wainina Kinyanjui & another v Kenya National Highways Authority [2018] KEELC 4198 (KLR)

Environment and Land Court
31 January 2018
MOM.C. Oundo
2,297 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

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A Kenyan court allowed a public road project to proceed despite landowners holding a valid title, ruling their losses could be paid in damages.

What this practically means

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Executive summary

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The Applicants, registered proprietor of Land Title No. Laikipia Nyahururu/5970 and his father who resides on the land, moved the court by Notice of Motion dated 7th April 2017 under Section 63 of the Civil Procedure Act and Order 40 of the Civil Procedure Rules seeking a temporary injunction to restrain KeNHA from entering, demolishing structures on or interfering with the suit property, pending the hearing of the suit. They relied on a title deed issued on 7th March 2002 and supporting documents, contending they had a prima facie case under Giella v Cassman Brown, that the 2nd Applicant would be rendered homeless, and that their right to property would be infringed. KeNHA opposed through replying and further affidavits, asserting that the suit land fell squarely within the old abandoned road reserve (road C717/old Nakuru-Nyahururu highway), created through gazetted land acquisitions in the 1970s and 1982, that the old road was never alienated, and that under section 91 of the Traffic Act it had statutory power to demolish structures after notice, the Applicants' title having been illegally procured. By consent the application was disposed of by written submissions. The court applied Giella and held that the Applicants, as duly registered proprietors under the Land Registration Act, had established a prima facie case: their title was prima facie indefeasible and due process was required before revocation. However, the court found the Applicants' loss compensable in damages and held that the greater public interest in completion of the road meant the balance of convenience tilted against granting an injunction. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Prima facie case and indefeasibility of title

Holding

The Applicants established a prima facie case as registered proprietors whose title is prima facie indefeasible under section 25 and 26(1) of the Land Registration Act and Article 40(6) of the Constitution

Reasoning

The 1st Applicant held a certificate of title issued regularly by the Registrar in 2002 under the repealed Registered Land Act, constituting him absolute proprietor. Section 26(1) of the Land Registration Act renders the certificate prima facie evidence of absolute and indefeasible ownership, challengeable only for fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme. The Respondent produced no evidence that the title had been revoked; due process was required first.

p. 3
02

Irreparable damage and balance of convenience

Holding

Although the Applicants would suffer if their developments were demolished, damages could compensate them and the balance of convenience favoured the public road project, so no injunction would issue

Reasoning

The Respondent's expansion of the highway serves the wider public interest in easing congestion. If at trial the Applicants' title is vindicated or no encroachment is proved, they can be compensated in damages after valuation. Accordingly the balance of convenience tilts against hindering completion of the road, and the second and third Giella limbs were not satisfied in the Applicants' favour.

p. 3

Legal principles established

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  • Where a registered title is impugned on grounds of fraud, illegality or corrupt scheme, due process must be followed before it can be revoked, cancelled or annulled
  • Proof of a duly registered certificate of title, on its face properly acquired, suffices at interlocutory stage to establish a prima facie case and shifts the burden to the party impugning the title

Court orders

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  1. 1.Dismissal of the application dated 7th April 2017
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 63(c) and (e)
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 3 and 4
  • Traffic Act Cap 403Section 91 and 91(2)
  • Registered Land Act (repealed) Cap 300Section 28
  • Land Registration Act, Act No. 3 of 2012Sections 25, 26(1) and 28
  • Land Act, Act No. 6 of 2012not specified
  • Physical Planning Actcertificate of compliance
  • Constitution of KenyaArticle 40(6)

Cases cited (1)

  • GIELLA –VS- CASSMAN BROWN & COMPANY LTD
    (1973) EA 358
Jurisdiction invoked
Section 63(c) and (e) of the Civil Procedure Act and Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010 (interlocutory injunction jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Wainina Kinyanjui & another v Kenya National Highways Authority [2018] KEELC 4198 (KLR)", Case Analysis (2018). Notice of Motion dated 7th April 2017 (suit re Land Title No. Laikipia Nyahururu/5970). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4198/eng@2018-01-31

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