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ELCPartially AllowedNot stated in the judgment (Petition with Notice of Motion dated 6th July 2020 and 13th July 2020)· [2020] KEELC 110 (KLR)

Stephen Muthami Mbau & 11 others v Kenya Railways Corporation; National Land Commission (Interested Party) [2020] KEELC 110 (KLR)

Environment and Land Court
17 December 2020
6,956 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Landowners with valid titles kept possession of their land near the Nairobi-Nanyuki railway, but lost the injunction and failed to prove contempt against Kenya Railways' Managing Director.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M.C. Oundo, J) determined two interlocutory applications in a constitutional petition brought by eleven registered proprietors of parcels of land in Nanyuki Municipality against the Kenya Railways Corporation. The first application, dated 6th July 2020, sought a temporary injunction restraining the Respondent from entering, fencing, blocking access to, or interfering with the petitioners' properties, which the Corporation had marked for demolition and fenced in connection with the revival of the Nairobi-Nanyuki railway line. Applying Giella v Cassman Brown, the court found the Petitioners had established a prima facie case: their registered titles were prima facie indefeasible under the Land Registration Act, the Registration of Titles Act and the Registered Land Act, and no evidence showed the titles had been revoked or that due process to revoke them had been undertaken. However, the court held the Petitioners had not established irreparable harm since their loss was quantifiable in damages, and the balance of convenience tilted toward the public interest in the railway. The injunction as prayed was refused, but in fashioning a conservatory remedy the court directed the Respondent to give vacant possession of the suit properties to the Petitioners and refrain from interfering with their access, occupation and use pending determination of the petition. The second application, dated 13th July 2020, sought to cite the Corporation's Managing Director, Philip Jamuhuri Mainga, for contempt of the status quo orders issued on 8th July 2020. The court found service and knowledge of the order had been established (knowledge superseding personal service), and that a valid order existed, but held the Petitioners had failed to prove to the heightened, quasi-criminal standard that the fencing occurred after the order, the photographs being undated. The contempt application was dismissed with costs and the Managing Director acquitted. The ruling was dated and delivered at Nakuru on 17th December 2020.

Key legal issues

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01

Prima facie case for injunction

Holding

Established - the Petitioners were registered proprietors of the suit parcels with duly issued titles, which are prima facie indefeasible

Reasoning

The Court found no dispute that the Petitioners held registered leasehold titles from the Government of Kenya and were in possession. Under sections 23 (Registration of Titles Act), 27-28 (Registered Land Act) and section 26(1) of the Land Registration Act 2012, such titles are conclusive/prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme. No evidence showed the titles had been recalled or revoked, and due process was required before revocation.

p. 6
02

Irreparable damage

Holding

Not established - the loss was quantifiable and compensable in damages

Reasoning

The Court accepted the Respondent's submission that loss of property could be compensated in damages and quantified. Applying Nguruman Limited v Jan Bonde Nielsen, where damages are an adequate remedy, no interlocutory injunction should issue even if a prima facie case exists. The demolition markings and fence did not constitute irreparable harm since structures and developments could be valued.

p. 7
03

Balance of convenience

Holding

Tilted in favour of the Respondent/public interest in the revived Nairobi-Nanyuki railway line

Reasoning

The Court found the suit land was a reserve of the Kenya Railways Corporation and that revival of the railway would benefit millions of Kenyans. The public interest in the railway outweighed the Petitioners' private proprietary interests, tilting the balance of convenience against the injunction as prayed.

p. 7
04

Service and knowledge of the order of 8th July 2020

Holding

Sufficient service and knowledge established via email to official addresses, personal service on the Respondent's legal officer, and conspicuous posting on the suit land

Reasoning

Relying on Shimmers Plaza Limited v National Bank of Kenya Limited and the principle that knowledge of an order supersedes personal service, the Court held that service through the Respondent's official email addresses and on the legal officer Mr. Gitari, together with conspicuous posting, constituted sufficient service and knowledge of the order for contempt purposes.

p. 8
05

Contempt of the order of 8th July 2020

Holding

Not proved to the required standard; the Managing Director acquitted

Reasoning

Contempt is quasi-criminal, attracting a standard higher than balance of probabilities, almost but not exactly beyond reasonable doubt (Mutitika v Baharini Farm). The bundle of photographs (SMM2) lacked evidence of when the fence was erected, making it impossible to determine whether the construction preceded or followed the order. The power to commit must be exercised as a last resort and conduct must be deliberate and willful.

p. 9

Legal principles established

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  • A duly registered certificate of title is prima facie indefeasible and can only be challenged on grounds of fraud, misrepresentation, or acquisition illegally, unprocedurally or through a corrupt scheme; due process must be followed before revocation
  • Knowledge of a court order suffices to prove service for contempt purposes; personal service is not always mandatory
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • Damages are an adequate remedy where loss is quantifiable, so no interlocutory injunction should issue; where prima facie case fails or damages suffice, balance of convenience need not be considered

Court orders

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  1. 1.The Respondent, her agents or servants to give vacant possession of the suit properties to the Petitioners
  2. 2.The Respondent, her agents or servants restrained from committing any acts on the suit land that would interfere with the access, occupation and use of the suit properties pending determination of the Petition
  3. 3.The Notice of Motion dated 13th July 2020 (contempt) dismissed
  4. 4.The Respondent's Managing Director acquitted of the charge of contempt of Court

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22; Article 23(3)(b); Article 40(1); Article 40(6); Article 47; Article 50(1)
  • Registration of Titles Act (repealed), Cap 281Section 23
  • Registered Land Act (repealed), Cap 300Sections 27, 28, 30
  • Land Registration Act, 2012Sections 25, 26(1)
  • Land ActNot specified
  • Judicature ActSection 5(1)
  • Environment and Land Court ActSection 29
  • Kenya Railways Corporation ActSection 9; Section 91(a)
  • Civil Procedure RulesOrder 40 Rule 3(1)
  • English Civil Procedure RulesRule 81:8

Cases cited (25)

  • Giella vs. Cassman Brown & Company Ltd
    (1973) EA 358
  • Wreck Motor Enterprises v Commissioner of Lands & 3 others
    [1997] eKLR
  • Republic v Land Registrar Taita Taveta District & Another
    [2015] eKLR
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another
    [2015] eKLR
  • Pius Kipchirchir Kogo vs Frank Kemeli Tenei
    [2018] eKLR
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Kristen Carla Burchell vs Barry Grant Burchell
    Eastern Cape Division Case No. 364 of 2005
  • Kenya Tourist Development Corporation vs Kenya National Capital Corporation & Another
    Nairobi High Court Civil Case No. 6776 of 1992
  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    [2015] eKLR
  • Basil Criticos v Attorney General and 8 Others
  • Justus Kariuki Mate & Another v Hon. Martin Nyaga Wambora & Another
    Civil Appeal No. 24 of 2014
  • Mutitika vs Baharini Farm Limited
    [1985] KLR 229, 234
  • Republic v Ahmad Abolfathi Mohammed & Another
    [2018] eKLR
  • Zacharia Njenga Kamiti vs. County Government of Narok & 3 Others
  • Micro & Small Enterprises Association of Kenya Mombasa Branch vs Mombasa County Government & 43 Others
  • Margaret Njambi Kamau vs. John Mwatha Kamau & Another
    [2019] eKLR
  • Charity Njeri Kanyua vs. Trevor Kent
    [2016] eKLR
  • Suleiman vs. Amboseli Resort limited
    [2004] eKLR
  • Republic vs. Kenyatta University ex-parte Losem Naomi Chepkemoi
    Nairobi Misc Application No. 573 of 2017
  • Kariuki & 2 Others vs. Minister for Gender, Sports, Culture & Social Services & 2 Others
    High Court Miscellaneous Civil Application No. 389 of 2004
  • Woburn Estate limited vs. Margaret Bashforth
    Civil Appeal No. 18 of 2015
  • Omar Shallo vs Jubilee Party of Kenya & Another
    Election Petition Appeal No. 18 of 2017
  • Rapando vs Constantine Ouma & 6 Others
    Kisumu Civil Suit No. 258 of 2000
  • Crown Paints Kenya Ltd vs. Dry Associates Ltd
    [2018] eKLR
  • Kiru Tea Factory Company Ltd vs Stephen Maina Githiga & 14 Others
    [2019] eKLR
Jurisdiction invoked
Article 22 and 23(3)(b) of the Constitution (petitions for enforcement of Bill of Rights); Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Stephen Muthami Mbau & 11 others v Kenya Railways Corporation; National Land Commission (Interested Party) [2020] KEELC 110 (KLR)", Case Analysis (2020). Not stated in the judgment (Petition with Notice of Motion dated 6th July 2020 and 13th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/110/eng@2020-12-17

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