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ELCDismissedCase No 344 of 2017· [2019] KEELC 2453 (KLR)

Lydia Muthoni Kamau v Director General, Kenya Agricultural & Livestock Research Organisation & another [2019] KEELC 2453 (KLR)

Environment and Land Court
15 July 2019
DOD. O. Ohungo
961 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru landowner lost an injunction because a current official title search and proof of land use would have made all the difference.

What this practically means

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Executive summary

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The court ruled on two interlocutory applications arising from a dispute over land Registration Number 4358 (Original Number 425/2/41/4/2), the suit property. The plaintiff, claiming to have been the registered proprietor since 14th May 1980, sought an interlocutory injunction to restrain the 1st defendant from encroaching on and trespassing on the suit property, alleging that in December 2016 the 1st defendant erected a barrier and a sign indicating Government ownership. An ex parte injunction had been granted on 14th September 2017 by M. Oundo J pending inter partes hearing. The 1st defendant, aggrieved, filed its own application seeking to set aside those orders, asserting that it held a certificate of title dated 8th October 2004 for LR No. 27158, which expressly comprised the suit property as an original parcel following an amalgamation of four parcels, and that it had occupied the land since 1963 for livestock research, supported by photographs and a veterinary report. Applying the Giella v Cassman Brown test as elaborated in Nguruman Limited v Jan Bonde Nielsen, the court held that the plaintiff had not established a prima facie case: she produced no recent official search and no evidence of recent physical activity on the land, and did not rebut the 1st defendant's evidence of long possession. Whether the amalgamation and issuance of the 1st defendant's title was lawful was left for trial. The plaintiff's application was dismissed with costs to the defendants, and the 1st defendant's setting-aside application was declared overtaken by events. The judge regretted the delay in delivery caused by medical leave.

Key legal issues

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01

Whether the plaintiff established a prima facie case for an interlocutory injunction

Holding

No prima facie case established; the 1st defendant's certificate of title of 8th October 2004 for LR No. 27158 (comprising LR No. 3989/7/1 and 4358/1) suggested the suit property had been amalgamated into the 1st defendant's title, and the 1st defendant showed possession since 1963 for livestock research, unrebutted by the plaintiff.

Reasoning

The plaintiff relied on a 1980 title but produced no recent official search and no evidence of recent physical activity on the land beyond subdivision approvals. The 1st defendant's title on its face included the suit property as an original parcel, corroborating amalgamation, and was supported by photographs and a veterinary report dating to 1963. The lawfulness of the amalgamation was a matter for trial, but on the papers the 1st defendant appeared the registered proprietor, so the Giella threshold was not met.

02

Whether the 1st defendant's application to set aside the ex parte orders remained necessary

Holding

The application was overtaken by events once the plaintiff's injunction application was dismissed.

Reasoning

The court had structured the hearing so that the 1st defendant's setting-aside application would only require determination if the plaintiff's application succeeded. Having dismissed the plaintiff's Notice of Motion dated 13th September 2017, the ex parte injunction lapsed and there was nothing left to set aside, rendering the 1st defendant's application moot without needing consideration on its merits.

p. 2

Legal principles established

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  • The Giella test for interlocutory injunctions comprises three sequential hurdles: prima facie case with probability of success, inadequacy of damages, and balance of convenience; if no prima facie case is established, the other limbs need no consideration

Court orders

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  1. 1.Notice of Motion dated 13th September 2017 dismissed with costs to the defendants
  2. 2.Notice of Motion dated 27th September 2017 declared overtaken by events and requiring no consideration

Authorities

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Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction over land (suit property LR No. 4358); applications brought by Notice of Motion under interlocutory procedure

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, "Lydia Muthoni Kamau v Director General, Kenya Agricultural & Livestock Research Organisation & another [2019] KEELC 2453 (KLR)", Case Analysis (2019). Case No 344 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2453/eng@2019-07-15

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