Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (Makueni ELC, Notice of Motion dated 16th July 2020)· [2021] KEELC 4320 (KLR)

Peter Kilonzo Kavila v Makueni County Government [2021] KEELC 4320 (KLR)

Environment and Land Court
19 February 2021
CMC. G. Mbogo
3,344 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan court blocked government demolition of a titled plot, ruling that unregistered road reserves cannot override a registered title until trial proves otherwise.

What this practically means

#

Executive summary

#
This is a ruling on the Plaintiff's Notice of Motion dated 16th July 2020 seeking a temporary injunction to restrain the Defendant from entering, trespassing on, demolishing or interfering with his residential properties on Plot No. Makueni/Masongaleni Scheme/352 pending the hearing of the suit. The Plaintiff, a registered owner who received an allocation in 1994 and a title deed in 2016, was served with a demolition notice on the basis that his fence encroached into road reserves. He contended there was no registered easement or road reserve within his parcel and that he was never invited to survey exercises. The Defendant, through its Sub County Surveyor, maintained that surveys conducted in May and July 2020 - the second with the participation of the Plaintiff's own surveyor - established encroachment into a 15-metre Kathiani-Mwanyani road reserve and a 10-metre road to Nthange River, and argued the Plaintiff failed to prove boundaries, that public interest favoured opening the roads, and that damages would suffice. Applying the Giella v Cassman Brown principles, the court found the title deed did not disclose the claimed 10-metre easement, which vitiated the encroachment claim on the registered title, held that the creation of an easement would alter the character of the property and was not compensable in damages, and found the balance of convenience favoured the registered owner. The court granted the injunction but, owing to public interest, limited it to twelve months, with costs of the application to abide the outcome of the main suit.

Key legal issues

#
01

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

Holding

Yes - the title deed does not disclose the claimed 10-metre road reserve easement, so the encroachment claim is doubtful pending trial

Reasoning

The court noted the title deed annexed does not show the existence of the 10-metre access easement claimed by the Defendant on the register. That omission would vitiate the contention that the Plaintiff encroached onto a road reserve within his own registered title. The court acknowledged this would be determined at the substantive hearing but found the registered owner holds all property rights with a high probability of success.

p. 3
02

Irreparable injury not compensable in damages

Holding

Satisfied - creation of an access easement would alter the character of the property and cannot be adequately compensated in damages

Reasoning

Although the Defendant argued only a chain link fence was affected and damages would suffice, the court found the existence of a public road within private title not registered as an easement disconcerting. The creation of an access easement would alter the character of the suit property, an injury incapable of adequate compensation in damages, so the second Giella limb was satisfied.

p. 4
03

Balance of convenience

Holding

Tilts in favour of the Plaintiff/Applicant notwithstanding possible encroachment on the 15-metre road

Reasoning

The court held that the balance of convenience must at all times tilt towards safeguarding the property rights of a legally registered owner. While acknowledging there may be encroachment on the boundaries of the suit property and the 15-metre wide road, the court found the balance favoured the Plaintiff as the registered proprietor of the suit land.

p. 4

Legal principles established

#
  • An interlocutory injunction application is decided on the Giella principles, including that a registered proprietor holds property rights pending trial
  • The balance of convenience in land matters tilts towards safeguarding the property rights of a legally registered owner

Court orders

#
  1. 1.A temporary order of injunction restraining the Defendant/Respondent, its agents, servants or anyone acting or claiming through it from entering, trespassing, demolishing or in any other manner interfering with the Plaintiff's residential properties on PLOT NO. MAKUENI/MASONGALENI SCHEME/352 pending the hearing and determination of the suit
  2. 2.The interlocutory injunction shall lapse within twelve months from the date of the order unless the court orders otherwise under Order 40 Rule 6
  3. 3.Costs of the application shall abide the outcome of the main suit

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 and 6
  • Land Registration ActSection 26(1) (as cited by Plaintiff's counsel)
  • Land Registration Act No. 3 of 2012Sections 24(a) and 85
  • Survey ActSection 21

Cases cited (1)

  • Giella –Vs- Cassman Brown & Co. Ltd
    [1973] EA 358
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Kilonzo Kavila v Makueni County Government [2021] KEELC 4320 (KLR)", Case Analysis (2021). Not stated in the judgment (Makueni ELC, Notice of Motion dated 16th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4320/eng@2021-02-19

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