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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 2289 (KLR)

Pius Watene D Maina (suing for and on behalf of the Baptist Convention of Kenya v Director General Kenya Urban Roads Authority & 5 others [2020] KEELC 2289 (KLR)

Environment and Land Court
2 June 2020
1,795 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's land court blocked a roads authority from touching a Chuka church's land after its building was demolished, protecting registered owners facing compulsory acquisition.

What this practically means

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Executive summary

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The plaintiff, a registered trustee of the Baptist Convention of Kenya, the registered proprietor of LR KARINGANI/NDAGANI/594 in Chuka, moved the Environment and Land Court at Chuka by notice of motion dated 21 May 2020 under Articles 40 and 64 of the Constitution, the Civil Procedure Act, the Land Registration Act and Order 40 of the Civil Procedure Rules. He sought urgent interlocutory relief against three defendants, principally the roads authority, whose agents had marked his commercial building for demolition for the tarmacking of the 'Moi Girls' road, and who, despite an injunction issued in Chuka CM ELC No. 9 of 2020 and personal service on the resident engineer, demolished the building on 4 April 2020. A subsequent Survey of Kenya exercise found the demolished buildings stood wholly on the plaintiff's parcel, and the loss was valued at Ksh 23,188,000. The defendants, though properly served, did not appear for the inter partes hearing on 2 June 2020, and the application was heard unopposed. Counsel for the plaintiff abandoned pursuit of prayer 3, which sought adoption of the survey report and beacons as the court's boundary determination, conceding it was a final order for trial. The court deemed the application heard and determined, granted prayers 2 and 4 - a temporary injunction restraining the defendants from entering or occupying the parcel, and an order that the OCS Chuka Police Station provide security for enforcement. Directions were issued on service, Order 11 compliance and a hearing date. The court preserved the validity of orders in the subordinate court suit and made no order on costs.

Key legal issues

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01

Whether a temporary injunction should issue restraining the defendants from entering or occupying the plaintiff's land

Holding

Prayer 2 granted unopposed; the court found the applicant would suffer irreparable damage absent the injunction and that the defendants sought to interfere with the land without due process

Reasoning

The court heard the applicant's counsel, who relied on the grounds on the face of the application and the supporting affidavit sworn on 21 May 2020. Counsel submitted irreparable damage and want of due process on compulsory acquisition. The defendants, though properly served with the hearing notice, did not attend, so the application proceeded unopposed and the court granted the temporary injunction and the security order.

p. 3
02

Whether the survey report and beacons should be adopted as the court's determination of the boundary

Holding

Refused at the interlocutory stage as the prayer was framed in final terms; left for the full hearing

Reasoning

Counsel for the applicant himself conceded that prayer 3 sought a final order and elected to pursue only prayer 2 at the interlocutory stage. The court thereby confined itself to interim relief, preserving the boundary question for trial.

p. 3

Legal principles established

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  • Prayers framed as final orders should not be granted at the interlocutory stage and must await final determination of the suit
  • An application may proceed to be heard ex parte where defendants, though properly served, fail to appear

Court orders

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  1. 1.This application is deemed heard and determined
  2. 2.Prayers 2 and 4 are granted (temporary injunction restraining the defendants from entering or occupying LR KARINGANI/NDAGANI/594, and OCS Chuka Police Station to provide security in enforcement of the orders)
  3. 3.The plaintiff to serve the orders issued by the court contained in the ruling upon the defendants within 10 days
  4. 4.The plaintiff to fully comply with Order 11, CPR within 21 days and the defendants to do so within 21 days after receipt of the plaintiff's compliance documents
  5. 5.Parties to come to court on 29.9.2020 to take a mutually convenient hearing date
  6. 6.This ruling does not affect the validity of any orders granted in Chuka CMCC ELC No. 9 of 2020
Jurisdiction invoked
Articles 40 and 64 of the Constitution; Sections 3 and 3A of the Civil Procedure Act; Sections 24, 25, 26 and 28 of the Land Registration Act, 2012; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Pius Watene D Maina (suing for and on behalf of the Baptist Convention of Kenya v Director General Kenya Urban Roads Authority & 5 others [2020] KEELC 2289 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2289/eng@2020-06-02

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