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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 12th April 2017)· [2018] KEELC 4757 (KLR)

Ukwala Trading Company Limited v County Government of Kwale & 3 others [2018] KEELC 4757 (KLR)

Environment and Land Court
16 January 2018
AOA. Omollo
841 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered Kwale County to lift a deferment on building approval because the landowner held a clean title and no one had challenged it.

What this practically means

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Executive summary

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The plaintiff, Praful Kumar Premchand Savla, moved the Environment and Land Court at Mombasa by a notice of motion dated 12th April 2017 seeking a permanent injunction restraining the respondents from interfering with land parcel Kwale/Diani S.S./291, and a mandatory injunction compelling them to lift a deferment issued against a development approval dated 22nd December 2015 for boundary fencing. The applicant proved registration as owner, having purchased from United Insurance Limited in May 2014, with an unencumbered copy of records and a NEMA EIA certificate. The respondents, through the Kwale County Physical Planner Ali Abdalla Bedzuma, explained that the approvals were deferred after the local community complained, annexing adjudication records suggesting the plot was demarcated as a public shopping centre, and that the matter had been referred to the National Land Commission for investigation. The court declined prayer 3 as it sought final orders at an interlocutory stage. Applying the Okeyo v Kenya Breweries principles on mandatory injunctions, the court held the case clear and suitable for summary determination: no proceedings to cancel the title had been commenced and the NLC had done nothing for over a year, leaving the applicant suffering unquantifiable loss. Prayer 4 for the mandatory injunction was granted, with costs of the application to the applicant. Judgment delivered at Mombasa on 16th January 2018 by A. Omollo, J.

Key legal issues

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01

Whether the deferment of development approvals by the County Government justified a mandatory injunction

Holding

The mandatory injunction was granted; the deferment unjustifiably kept the applicant waiting without any proceedings being commenced to challenge his title

Reasoning

The applicant held a registered title acquired for valuable consideration with no restriction on the register. The local community and the National Land Commission had not commenced any proceedings to cancel the title, and the NLC had conducted no investigation for over a year after referring the dispute. The applicant suffered loss and inconvenience without anyone directly challenging his title. Should the land later be found preserved for public utility, the wall could be demolished or accesses created.

p. 2

Legal principles established

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  • Mandatory injunctions are granted only in special circumstances, where the case is simple and clear and can be decided at once, or where the defendant is attempting to steal a match on the plaintiff

Court orders

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  1. 1.Mandatory injunction granted compelling the Respondents to lift the deferment issued against the development approval dated 22nd December 2015 for boundary fencing of Land Reference Number KWALE/DIANI S.S./291 (prayer 4 granted)
  2. 2.Costs of the application awarded to the applicant

Authorities

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Cases cited (1)

  • Washington Okeyo vs Kenya Breweries Limited
    (2002)
Jurisdiction invoked
First-instance civil suit/application; no specific constitutional or statutory provision invoked in the judgment

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, "Ukwala Trading Company Limited v County Government of Kwale & 3 others [2018] KEELC 4757 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 12th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4757/eng@2018-01-16

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