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ELCAllowedNot stated in judgment· [2020] KEELC 1549 (KLR)

Kanan Dairy Limited v Beatrice Nzakwa Makau & another [2020] KEELC 1549 (KLR)

Environment and Land Court
30 July 2020
OAO.A. Angote
2,024 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 confirmed that a registered land title is strong proof of ownership and cannot be undone by a local task force report.

What this practically means

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Executive summary

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The Plaintiff, registered owner of L.R Athi River/Athi River Block 1/1139, moved the court by Notice of Motion dated 3rd December 2019 under Order 40 Rules 1 & 4(1) and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking a temporary injunction restraining the Defendants from entering, taking possession of, trespassing on or dealing with the suit property pending trial, plus an OCS enforcement order and costs. The Plaintiff deponed that it purchased the land in April 2014 for Kshs. 3,400,000, conducted due diligence, took possession and developed a dairy farm, and that the Defendants relied on an ultra vires 'Katelembo Task Force' report purporting to revoke his title in favour of the 1st Defendant. The 1st Defendant opposed, claiming the land (Plot 519) was allocated to her late husband, a member of the 2nd Defendant, and that the Plaintiff's title was fraudulently acquired. The court applied the Giella v Cassman Brown conditions. It held the Task Force had no jurisdiction over land ownership, that jurisdiction vests exclusively in the Environment and Land Court and the Magistrates' Court under Article 162(2)(b), and that the Plaintiff's Title Deed was prima facie evidence of ownership under Section 26 of the Land Registration Act, with no evidence of fraud. A prima facie case and irreparable harm were established. The court allowed the application as prayed on 30th July 2020.

Key legal issues

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01

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

Holding

Yes - the Plaintiff holds a registered Title Deed which is prima facie evidence of ownership, and the Defendants adduced no evidence of fraud or mistake

Reasoning

The Plaintiff purchased the suit property in April 2014, conducted due diligence including official and historical searches, obtained registration on 4th July 2014 and developed a dairy farm. Under Section 26 of the Land Registration Act a title is prima facie evidence of ownership defeatable only by fraud or mistake. The Defendants relied only on a Task Force report which had no jurisdiction over title to land, and produced no evidence of fraud against Joseph Muthama's title.

p. 3
02

Whether irreparable harm not compensable by damages was demonstrated

Holding

Yes - the Plaintiff's development of the property into a dairy farm meant harm not adequately compensable by damages

Reasoning

The court found that the Plaintiff, having taken possession and developed the suit property into a dairy farm, would suffer irreparable damage that an award of damages could not adequately compensate, satisfying the second Giella condition and justifying the injunction pending trial.

p. 3
03

Jurisdiction of the Katelembo Task Force over ownership of land

Holding

The Task Force had no jurisdiction; only the ELC and Magistrates' Court can determine ownership and title to land

Reasoning

The Defendants' claim rested solely on the Katelembo Task Force report of 22nd August 2019. The court held there was no evidence the Task Force had jurisdiction to determine ownership of the suit property, since under Article 162(2)(b) of the Constitution, the Environment and Land Court Act and the Magistrates Act, only the Environment and Land Court and the Magistrates' Court have jurisdiction over occupation, ownership and title to land.

p. 3

Legal principles established

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  • Only the Environment and Land Court and the Magistrates' Court have jurisdiction to determine occupation, ownership and title to land
  • A Title Deed is prima facie evidence of ownership and can only be defeated on the basis of fraud or mistake

Court orders

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  1. 1.Injunction restraining the Defendants, their agents, servants, proxies or employees from entering, taking possession, trespassing or otherwise dealing with L.R Athi River/Athi River Block 1/1139 pending hearing and determination of the suit
  2. 2.Application dated 3rd December 2019 allowed as prayed

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 & 4(1); Order 51 Rule 1
  • Civil Procedure ActSection 3A
  • Land Registration ActSections 25, 26, 26(1)(b), 79, 80
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActNot specified
  • Magistrates ActNot specified

Cases cited (5)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Njuwangu Holdings Ltd vs. Langata Kpa Nairobi & 5 others
    [2014] eKLR
  • Esther Ndegi Njiru & Another vs. Leonard Gateti
    (2014) eKLR
  • Fellowes and Son vs. Fisher
    [1976] I QB 122
  • Mrao vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Environment and Land Court Act

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, "Kanan Dairy Limited v Beatrice Nzakwa Makau & another [2020] KEELC 1549 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1549/eng@2020-07-30

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