Ashbro International Limited v Catherine Njeri Kamuny & 2 others; Development Bank of Kenya Ltd (Interested Party) [2021] KEELC 4226 (KLR)
The bottom line
#A Kenyan court stopped Nairobi County from building on privately titled land, confirming that an unrevoked title earns immediate protection.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success
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
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.
Whether the plaintiff would suffer irreparable injury not adequately compensable by damages
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
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.
Whether the court should order the 3rd defendant to compensate the 2nd defendant for 80% of the contract value
No - the court lacks jurisdiction over a contractual claim not pleaded before it
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.
Legal principles established
#- Where a registered title has not been revoked, cancelled or recommended for revocation, and no counterclaim seeks its nullification, the titleholder demonstrates a prima facie right of ownership meriting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
#- 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.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.Liberty granted to the 2nd defendant to remove from the suit property its construction equipment which may still be there
- 4.The Kenya Police Service Commander in Charge of Industrial Area Police Station to enforce the orders
- 5.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.