Church Commissioners for Kenya St Peters ACK Church v Archdiocese of Nairobi Kenya Registered Trustees & 2 others [2021] KEELC 2731 (KLR)
The bottom line
#A Kenyan court upheld an injunction stopping church construction because the rival landowner held the older, first-issued title.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in granting a temporary injunction to the 1st Respondent (Archdiocese of Nairobi)
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.
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.
Whether the Appellant's appeal is merited
The appeal is not merited; the trial Magistrate arrived at a proper determination which the ELC found no reason to upset.
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.
Legal principles established
#- 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
#- 1.The Appellant's Appeal is disallowed entirely
- 2.The Ruling and Order of the trial court dated 31st October 2019 is upheld
- 3.The 1st Respondent will have the costs of this Appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.