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ELCPartially AllowedNot stated in the judgment· [2021] KEELC 4226 (KLR)

Ashbro International Limited v Catherine Njeri Kamuny & 2 others; Development Bank of Kenya Ltd (Interested Party) [2021] KEELC 4226 (KLR)

Environment and Land Court
24 February 2021
1,460 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped Nairobi County from building on privately titled land, confirming that an unrevoked title earns immediate protection.

What this practically means

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Executive summary

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The plaintiff, Ashbro International Limited (formerly Ashbro Enterprises Limited), moved the Environment and Land Court by notice of motion dated 16/1/2020 seeking interlocutory conservatory orders restraining the 3rd defendant, the Nairobi City County Government, from trespassing on, entering, damaging, alienating or building on Land Reference Number 209/3694 in Nairobi, pending the hearing of the suit. The plaintiff, registered proprietor of the suit property under Grant IR 62865 (registered 25/7/1994), complained that the 3rd defendant, through the 2nd defendant contractor, began erecting an ablution block on the land in December 2019 following a tender. The 1st and 2nd defendants explained they won Tender No NCC/WS & E/T/422/2018-19, took possession of the site handed over by the 3rd defendant on 21/11/2019, and had completed 80% of the works; they did not claim title. The 3rd defendant countered that the site is an open space, public land held in trust for the public, allegedly fraudulently registered to the vendor. Applying the Giella v Cassman Brown principles, the court found the plaintiff had a registered, unrevoked title unsupported by any counterclaim, hence a prima facie case. It further held that seizure of titled land without seeking revocation of the title would cause a breakdown of the rule of law, an injury not compensable in damages. The motion was allowed: further construction was restrained, the existing structures preserved, the 2nd defendant allowed to remove equipment, police ordered to enforce, and costs were made in the cause. A claimed 80% contract payment was refused as unpleaded.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

Yes - the plaintiff holds a registered Grant IR 62865 issued on a PDP dated 6/1/1994, with no evidence of revocation and no counterclaim challenging the title

Reasoning

The applicant holds a registered Grant over the suit property. The 3rd defendant's assertion that the land is public land held in trust was unsupported by any step to revoke the title or survey plans. In the absence of a counterclaim seeking nullification, the registered proprietor demonstrated a prima facie right of ownership which has been violated or is threatened with violation and merits protection.

p. 2
02

Whether the plaintiff would suffer irreparable injury not adequately compensable by damages

Holding

Yes - the defendant's seizure of titled land and erection of developments thereon without seeking revocation of the title threatens the rule of law, an injury damages cannot compensate

Reasoning

The court held that the actions of the 3rd defendant amounted to seizure of surveyed and titled land and erection of developments without applying for revocation of the survey plans and title. Allowing such conduct to continue would result in a breakdown of the rule of law, and no award of damages can compensate a party exposed to such a flagrant violation. The second Giella limb was therefore satisfied and the balance of convenience was not considered.

p. 2
03

Whether the court should order the 3rd defendant to compensate the 2nd defendant for 80% of the contract value

Holding

No - the court lacks jurisdiction over a contractual claim not pleaded before it

Reasoning

The 1st and 2nd defendants asked that, if an injunction issued, the 3rd defendant be ordered to pay the 2nd defendant 80% of the contract value. The court held it was not properly seized of a claim for the 2nd defendant's contractual entitlements against the 3rd defendant and refrained from adjudicating a claim not before it, while still permitting removal of construction equipment and preserving the structures.

p. 3

Legal principles established

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  • Where a registered title has not been revoked, cancelled or recommended for revocation, and no counterclaim seeks its nullification, the titleholder demonstrates a prima facie right of ownership meriting interlocutory protection
  • Seizure of surveyed and titled land without applying for revocation of the survey plans and title is a flagrant violation of the rule of law not adequately compensable in damages
  • A court will refrain from adjudicating a contractual claim not pleaded before it even in granting interlocutory relief

Court orders

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  1. 1.An interlocutory order restraining the 3rd defendant, together with its agents and servants, from continuing with or undertaking further construction works on Land Reference Number 209/3694, pending the hearing and determination of the suit
  2. 2.An order preserving the structures already erected on the suit property by the 3rd defendant using public funds, pending the hearing and determination of the suit
  3. 3.Liberty granted to the 2nd defendant to remove from the suit property its construction equipment which may still be there
  4. 4.The Kenya Police Service Commander in Charge of Industrial Area Police Station to enforce the orders
  5. 5.Costs in the cause

Authorities

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Legislation

  • Land Registration framework (Grant Number IR 62865 / Part Development Plan)Not specified

Cases cited (2)

  • Giella v Cassman Brown Co Ltd
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land in Nairobi City County; interlocutory conservatory/injunctive relief pending hearing of the suit

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, "Ashbro International Limited v Catherine Njeri Kamuny & 2 others; Development Bank of Kenya Ltd (Interested Party) [2021] KEELC 4226 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4226/eng@2021-02-24

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