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ELCAllowedNotice of Motion dated 27th November 2019· [2021] KEELC 3919 (KLR)

Simon Kamau Gitau & 5 others v Kenya National Highway Authority [2021] KEELC 3919 (KLR)

Environment and Land Court
11 March 2021
LGL. GACHERU
2,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Thika court stopped KeNHA from demolishing a Ruiru timber yard, ruling the owners' 1989 title deed gave them a strong case to protect their property.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of Title Number Ruiru Town/265 since 1989, moved the Court by Notice of Motion dated 27th November 2019 seeking injunctions to restrain the Defendant road authority from executing a Notice of intended demolition dated 2nd July 2019 targeting the timber yard operated by the 1st Plaintiff on the suit property. The Plaintiffs asserted indefeasible title and 20 years of quiet possession, invoking Article 40 of the Constitution, and contended the property was private land, not a road reserve, so no notice could issue under Section 49(4) of the Kenya Roads Act. The Defendant, through its Senior Surveyor, responded that the land was acquired for the Nairobi-Thika road expansion in 1972 under the Land Acquisition Act, that the owners of plot 7418/2 were fully compensated, and that the subdivision creating Ruiru Town/265 ought to have been surrendered as a public road. The Plaintiffs countered that the acquisition was never gazetted, no compensation was proved, and possession never vested in the State. Applying the Giella v Cassman Brown principles, the Court held at the interlocutory stage that the title deed and photographs established a prima facie case with probability of success; that demolition of an operating timber yard would cause irreparable harm not compensable by damages; and that in any event the balance of convenience favoured maintaining the status quo pending trial. The application was allowed entirely in terms of prayers 3 and 4, with costs to the Plaintiffs. The ruling was delivered online pursuant to COVID-19 court-operations directions.

Key legal issues

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01

Prima facie case

Holding

A registered title deed and photographic evidence of a timber yard earmarked for demolition established a prima facie case with probability of success

Reasoning

The Plaintiffs produced a title deed dated 9th June 1989 showing registration, and photographs confirming a timber yard on the property facing demolition. The Defendant's claim of compulsory acquisition was controverted and could not be resolved on affidavit evidence at the interlocutory stage. The Court found a right apparently infringed, calling for explanation or rebuttal, satisfying the Mrao test.

p. 3
02

Irreparable harm

Holding

Demolition of the timber yard would cause loss not adequately compensable by damages

Reasoning

Evidence showed a timber yard marked for demolition on property the 1st Plaintiff has occupied for over 20 years. If demolition proceeded and the Plaintiffs ultimately succeeded, the harm would be continuous and beyond monetary compensation. Citing Niaz Mohammed Janmohammed, the Court preferred prevention by injunction to an award of damages.

p. 3
03

Balance of convenience

Holding

The Court was not in doubt; in any event the balance of convenience favoured maintaining the status quo

Reasoning

The Court stated it was not in doubt on the third Giella limb, but noted that if it were, the balance of convenience would tilt towards maintaining the status quo, meaning the timber yard remains and is not demolished pending the full hearing. This aligns with the Wambui v Ougo principle on conflicting facts.

p. 3

Legal principles established

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  • The Giella v Cassman Brown principles (prima facie case, irreparable injury, balance of convenience) guide the grant of interlocutory injunctions
  • An interlocutory court makes no conclusive findings of fact or law on contradictory affidavit evidence
  • Where there are serious conflicts of fact, the status quo should be maintained until trial

Court orders

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  1. 1.An order of injunction restraining the Defendant/Respondent, its employees, servants and agents from executing the Notice of intended demolition dated 2nd July 2019, from demolishing the timber yard, removing structures, timber, goods and machinery, or interfering with the Plaintiffs' properties on Title Number Ruiru Town/265 pending the hearing and determination of the suit
  2. 2.An injunction restraining the Defendant/Respondent from removing, demolishing, encroaching on or interfering with the 1st Plaintiff's timber yard business on his share of parcel Ruiru Town/265 pending hearing and determination of the suit
  3. 3.Costs of the application to the Plaintiffs/Applicants

Authorities

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Legislation

  • Kenya Roads ActSection 49(4)
  • Registered Land ActSection 27
  • Land Acquisition ActSections 8 and 19(1)
  • Land Act 2012Part VII (Compulsory Acquisition)
  • Constitution of KenyaArticle 40
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (7)

  • Giella vs Cassman Brown Co Ltd
    (1973) EA 358
  • E.A Industries vs Trufoods
    (1972) EA 420
  • Airland Tours and Travel Ltd vs National Industrial Credit Bank
    Milimani HCCC No.1234 of 2003
  • Mrao Ltd vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Paul Gitonga Wanjau vs Gathuthi Tea Factory Co. Ltd & 2 Others
    Nyeri HCC No.28 of 2015
  • Niaz Mohammed Janmohammed vs Commissioner for Lands & 4 Others
    (1996) eKLR
  • Virginia Edith Wambui vs Joash Ochieng Ougo
    Civil Appeal No.3 of 1987 (1987) eKLR
Jurisdiction invoked
Original civil jurisdiction over land disputes; interlocutory injunction application under 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, "Simon Kamau Gitau & 5 others v Kenya National Highway Authority [2021] KEELC 3919 (KLR)", Case Analysis (2021). Notice of Motion dated 27th November 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3919/eng@2021-03-11

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