Josephine Wayego Githuku v Kiambu Dandora Farmers Co.Ltd & 3 others [2022] KEELC 633 (KLR)
The bottom line
#Kenya's Environment and Land Court protected a registered landowner from ongoing construction, confirming that a certificate of title outweighs claims built on a void land commission decision.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant met the threshold for a temporary injunction pending appeal
Yes. The Applicant established a prima facie case through her certificate of title, demonstrated irreparable damage from the 4th Respondent's ongoing construction, showed the appeal would be rendered nugatory, and the balance of convenience favoured her.
The Applicant purchased the plots from Amboseli Court Limited in 2008 and holds a certificate of title protectable under Section 24 of the Land Registration Act. The 4th Respondent's claim rests on the NLC decision upholding the original title, which was declared unconstitutional and unlawful. The Applicant has been in occupation since 2008 while the 4th Respondent entered in March 2021 with no title. Ongoing construction would cause irreparable damage and render the arguable appeal nugatory.
Validity of the National Land Commission's review of grants and dispositions
The NLC had no jurisdiction to review grants and dispositions over the original title, and its decision was declared unconstitutional, illegal, null and void.
The court relied on the earlier decision in Republic v National Land Commission & another; Samuel Wachira Wanja & 2 others (Ex-parte), in which the court found the NLC lacked jurisdiction to review dispositions over L.R No. 11379/3 and declared its decision to review titles unconstitutional, illegal, null and void. The 4th Respondent's derivative claim from that decision therefore could not stand.
Costs of the application
Costs were not awarded to any party; they were left to abide the outcome of the appeal.
Having granted the injunction, the court declined to make an immediate award of costs, instead deferring the question of costs until the disposal of the underlying appeal, the outcome of which would determine who ultimately bears them.
Legal principles established
#- A registered proprietor's certificate of title creates a prima facie case and is entitled to protection under Section 24 of the Land Registration Act
- An injunction pending appeal is discretionary and guided by Giella v Cassman Brown principles and the additional requirements in Patricia Njeri & 3 Others v National Museum of Kenya
Court orders
#- 1.Temporary injunction restraining the Respondents from trespassing into, constructing upon, or interfering with L.R Nos. 15400/73 and 15400/74 pending hearing of the application and the appeal (prayer (c))
- 2.Order that the sub-county commander Kayole Police Division and ward commander Soweto Police Station avail assistance and security at the suit parcels and supervise removal of structures placed by the 1st and 4th Respondents pending hearing and determination of the application and the appeal (prayer (d))
- 3.Costs to abide the outcome of the appeal
- On appeal from
- Magistrate's Court
- Jurisdiction invoked
- Appellate/interlocutory jurisdiction over the magistrate's court ruling; application brought under Order 51 Rule 1, Order 40 Rules 1 and 2 of the Civil Procedure Rules, Sections 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephine Wayego Githuku v Kiambu Dandora Farmers Co.Ltd & 3 others [2022] KEELC 633 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 29th October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/633/eng@2022-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.