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ELCDismissedELC Appeal No. 67 of 2019· [2021] KEELC 2731 (KLR)

Church Commissioners for Kenya St Peters ACK Church v Archdiocese of Nairobi Kenya Registered Trustees & 2 others [2021] KEELC 2731 (KLR)

Environment and Land Court
1 July 2021
2,235 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 upheld an injunction stopping church construction because the rival landowner held the older, first-issued title.

What this practically means

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Executive summary

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The Archdiocese of Nairobi Kenya Registered Trustees had obtained a temporary injunction from the Principal Magistrate's Court at Kikuyu (Hon. D.N Musyoka, PM, ruling of 31st October 2019) restraining the Church Commissioners for Kenya St Peters ACK Church from constructing on, trespassing on or interfering with land parcel Dagoretti/Uthiru/394, pending the hearing of ELC No. 75 of 2018. The Church appealed on two grounds: that the Magistrate erred in finding the Giella v Cassman Brown threshold met without demonstrating how, and in failing to consider the Appellant's evidence and submissions. After failed court-annexed mediation before Rosemary Mwangi, L. Gacheru J heard the appeal by written submissions and framed two issues: whether the trial court erred in granting the injunction, and whether the appeal was merited. Applying the Mbogo v Shah standard for interfering with judicial discretion, the court held the Magistrate properly applied the injunction criteria: the Archdiocese's title dated 10th April 2003 was first in time over an allocation dating to 1974, the Appellant failed to explain the root of its title, constructing a Cathedral would cause loss not compensable in damages, and the balance of convenience favoured maintaining the status quo. The appeal was dismissed entirely, the trial court's ruling and order upheld, with costs of the appeal awarded to the 1st Respondent.

Key legal issues

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01

Whether the trial court erred in granting a temporary injunction to the 1st Respondent (Archdiocese of Nairobi)

Holding

The trial Magistrate did not err; the 1st Respondent established a prima facie case with probability of success, irreparable harm not compensable by damages, and the balance of convenience favoured maintaining the status quo.

Reasoning

The 1st Respondent held a title deed dated 10th April 2003 over Dagoretti/Uthiru/394 and traced its allocation to 1974, making its title first in time. The Appellant failed to satisfactorily explain the root of its title. Allowing construction of a Cathedral would alter the nature of the property such that damages would not adequately compensate. On serious conflicts of fact, the status quo had to be maintained pending full trial.

02

Whether the Appellant's appeal is merited

Holding

The appeal is not merited; the trial Magistrate arrived at a proper determination which the ELC found no reason to upset.

Reasoning

Having re-evaluated and re-assessed the evidence before the trial court, the memorandum of appeal, annexures and written submissions, the court found the trial Magistrate's discretion properly exercised under the Giella v Cassman Brown criteria. The grounds alleging failure to analyse the evidence and misapplication of the threshold were not made out, so the ruling and order of 31st October 2019 was upheld.

p. 3

Legal principles established

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  • An appellate court will only interfere with the discretion of a trial court where the discretion was exercised contrary to law, the trial court misapprehended the law, or failed to take into account a relevant factor or took into account an irrelevant factor, or the decision is plainly wrong.
  • Where duplicate titles are issued over the same parcel due to an admitted mistake, and both titles were issued regularly and without fraud, the title first in time prevails.
  • A party cannot be condemned to take damages in lieu of a crystallised right that can be protected by an order of injunction.
  • Where there are serious conflicts of facts, the trial court should maintain the status quo until the dispute is decided at trial.

Court orders

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  1. 1.The Appellant's Appeal is disallowed entirely
  2. 2.The Ruling and Order of the trial court dated 31st October 2019 is upheld
  3. 3.The 1st Respondent will have the costs of this Appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1

Cases cited (6)

  • Giella vs Cassman Brown & Co. Ltd
    1973 EA 358
  • Mbogo vs Shah
    (1968) EA at Page 93
  • E.A Industries vs Trufoods
    (1972) EA 420
  • Gitwany Investment Ltd & 3 Others vs Commissioner of Lands
    HCCC No.1114 of 2002
  • Olympic Sports House Ltd vs School Equipment Centre Ltd
    (2012) eKLR
  • Virginia Edith Wambui vs Joash Ochieng Ougo
    Civil Appeal No.3 of 1987 (1987) eKLR
On appeal from
Principal Magistrate's Court at Kikuyu
Kikuyu ELC No. 75 of 2018
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in land matters

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, "Church Commissioners for Kenya St Peters ACK Church v Archdiocese of Nairobi Kenya Registered Trustees & 2 others [2021] KEELC 2731 (KLR)", Case Analysis (2021). ELC Appeal No. 67 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2731/eng@2021-07-01

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