African Express Airways (Kenya) Limited v Kenya Airways Plc [2021] KEELC 1730 (KLR)
The bottom line
#A Nairobi land court ruled the first-registered title wins over a later one, restoring an evicted owner's possession pending trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case and irreparable harm for interlocutory injunctive relief
The plaintiff established a prima facie case with probability of success, irreparable harm, and exceptional circumstances warranting both prohibitory and mandatory injunction.
The plaintiff produced its Grant No. I.R 69013 for a 99-year lease registered on 15th June 1995, a valuation report showing development and value over Kshs. 500,000,000, and evidence of possession since 1995 with no competing claim until the eviction. The defendant's grant expired in 2011 and its purported renewal was unsigned and unregistered. The eviction was carried out without the plaintiff's consent and without a lawful order covering the suit property.
Priority of the competing titles to the suit property
The plaintiff's title, registered on 15th June 1995, was first in time and prevails over the defendant's grant registered on 4th October 1995.
The court held that priority of registered interests is reckoned from the date of registration, not the commencement date of the lease term. The plaintiff's grant was issued and registered earlier than the defendant's. The defendant's lease expired in 2011 and its new lease of 26th April 2021 was neither signed nor registered, leaving no lease in its favour.
Whether the eviction was authorised by a lawful court order
No lawful order from a competent court authorised the eviction; the lower court order did not name the plaintiff, did not mention L.R No. 9042/584, and the lower court lacked pecuniary jurisdiction.
The order of 16th July 2021 in MELC No. E235 of 2021 directed eviction of 748 Air Services (K) Limited, a party unrelated to the plaintiff. It referred to L.R No. 9042/583 and 9042/1051, not the suit property. The defendant adduced no proof that 9042/1051 and 9042/584 were the same parcel, and the suit property's value exceeded the magistrates' court's pecuniary jurisdiction of Kshs. 10,000,000.
Whether the preliminary objection on sub judice and lack of jurisdiction had merit
The preliminary objection was overruled; the plaintiff was not a party to the lower court suit and could not be compelled to litigate there over a property whose value was beyond that court's pecuniary jurisdiction.
The court found no relationship between the plaintiff and the defendant in the lower court suit, no evidence linking the lower court properties to the suit property, and no jurisdiction in the lower court over ownership of a property valued above Kshs. 500,000,000. Res judicata, sub judice and estoppel therefore did not apply.
Legal principles established
#- Priority of registered interests in land is reckoned from the date of registration, so the first-registered title prevails.
- An unregistered and unsigned lease confers no enforceable leasehold interest.
- Where two titles are issued over the same parcel by mistake, the first in time prevails absent fraud.
- A mandatory interlocutory injunction requires an unusually strong and clear case with special circumstances.
- A court without jurisdiction to determine ownership of property cannot determine the legality of possession thereof.
Court orders
#- 1.The defendant's notice of preliminary objection dated 2nd August 2021 is overruled
- 2.The plaintiff's application dated 30th July 2021 is allowed in terms of prayers 3, 4 and 5 thereof
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; plaintiff argued the High Court/ELC alone had jurisdiction given the suit property's value exceeding Kshs. 500,000,000 (beyond the magistrates' courts' pecuniary jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African Express Airways (Kenya) Limited v Kenya Airways Plc [2021] KEELC 1730 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1730/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.