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 as provided· [2022] KEELC 588 (KLR)

Lekan Developers Limited v Cabinet Secretary, Ministry of Lands & Physical Planning & 4 others; Milka Wangui, & 2 others (For themselves and on behalf of Kiang’ombe Squaters Settlement Scheme (Interested Parties) [2022] KEELC 588 (KLR)

Environment and Land Court
28 March 2022
JKJ G Kemei
2,140 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court in Thika protected a registered landowner from government interference, ruling that an unchallenged title deed is strong evidence of ownership.

What this practically means

#

Executive summary

#
The Petitioner, a company registered as proprietor of Land Reference Number 29746 Thika Municipality in December 2019 after purchasing it in 2016, moved the Court by Motion under Articles 22 and 23 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act seeking a temporary injunction restraining the Respondents from interfering with its possession. The trigger was correspondence from the 1st Respondent and the Deputy County Commissioner, Thika West, indicating the land was reserved for a public school as part of a Part Development Plan for the Kiangombe Squatters Housing Scheme. The Respondents, through the Replying Affidavit of Mugendi Geoffrey Moses, detailed the alienation history under the repealed Government Lands Act, contending that the suit land is public land reserved for a school and that the Petitioner's title is in doubt. The Kiang'ombe Squatters Settlement Scheme was enjoined as an interested party by consent and supported the application. Applying the Giella v Cassman Brown principles, the Court found the Petitioner had established a prima facie case: its title was registered and no evidence of revocation of the allotment letter, PDP or title was exhibited, the Respondents having failed to attach the annexures referred to. Damages were held insufficient given the alleged appropriation of property rights without due process, and the balance of convenience favoured preservation of the land. The application was allowed in terms of prayer (c) pending the hearing and determination of the Petition, with costs in the cause.

Key legal issues

#
01

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

Holding

Yes – the registered title had not been shown to be revoked and the Petitioner was in possession

Reasoning

The Petitioner held a title registered on 27/12/2019 and was in possession. The Respondents' deponent failed to attach the annexures (MGM1-18) supporting the alleged revocation of the PDP, allotment letter and title. Applying section 26 of the LRA, the title stands as prima facie evidence of ownership, so a prima facie case was established.

p. 4
02

Whether damages would be an adequate remedy

Holding

Yes for the Petitioner – damages are insufficient where property rights are being appropriated without due process

Reasoning

The Court held the case concerns appropriation of property rights without due process rather than ordinary compensable injury. The NLC had appeared to validate the title and the County Government had granted development permission, so an award of damages could not adequately address deprivation of the property without due process.

p. 4
03

Balance of convenience

Holding

Preservation of the suit land favours the balance of convenience

Reasoning

The Court, not being in doubt on the earlier limbs, held that the balance of convenience lay in preserving the suit property pending the hearing and determination of the Petition, consistent with the third Giella limb.

p. 4

Legal principles established

#
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership under section 26 of the Land Registration Act, and a party alleging revocation must demonstrate it with evidence.

Court orders

#
  1. 1.A temporary injunction issued in terms of prayer (c), restraining the Respondents, their agents, employees and servants from interfering with the Petitioner's quiet and peaceful occupation, possession and ownership of Land Reference Number 29746 Thika Municipality pending the hearing and determination of the Petition
  2. 2.Costs of the application to be in the cause

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 22, 23(1)(b)(c), 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rule 1
  • Land Registration ActSection 26
  • Government Lands Act (repealed)Not specified
  • Physical Planning ActNot specified

Cases cited (2)

  • Giella vs. Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd Vs First American Bank of Kenya Ltd & Others
    (2003) KLR
Jurisdiction invoked
Articles 22, 23(1)(b)(c) and 159(2)(d) of the Constitution of Kenya 2010; Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lekan Developers Limited v Cabinet Secretary, Ministry of Lands & Physical Planning & 4 others; Milka Wangui, & 2 others (For themselves and on behalf of Kiang’ombe Squaters Settlement Scheme (Interested Parties) [2022] KEELC 588 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/588/eng@2022-03-28

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