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ELCPartially AllowedEnvironment & Land Case 88 of 2021· [2022] KEELC 3034 (KLR)

Gikonyo v Khan (Environment & Land Case 88 of 2021) [2022] KEELC 3034 (KLR)

Environment and Land Court
14 June 2022
1,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner with a title deed blocked quarrying on his Kilifi plot, confirming a registered title beats an allotment letter.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M. A. Odeny, J) determines an application dated October 28, 2021 by the plaintiff seeking a temporary injunction restraining the defendant from trespassing on, quarrying or otherwise interfering with Plot No. 700/III/MN in Kanamai, Kilifi County, pending the hearing of the suit. The plaintiff, registered proprietor since a 2010 purchase for Kshs 4,005,000, alleged the defendant was quarrying limestone and coral blocks without authority. The defendant countered that he took a lease dated May 19, 2020 from one Lawrence Kazungu Ndoro, who held an allotment letter of February 24, 1998, and maintained the plaintiff would be compensated in damages. Applying the Giella v Cassman Brown principles, the court held that production of the title deed established a prima facie case: under section 26 of the Land Registration Act the plaintiff was absolute and indefeasible owner absent proof of fraud, and no such evidence was adduced at the interlocutory stage. The court further found quarrying causes soil depletion, erosion and topographical alteration that cannot be adequately compensated by damages, and that a party cannot be condemned to damages in lieu of a crystallised right. The plaintiff was held to have established a prima facie case with a probability of success and granted the temporary injunction as prayed. No costs order is recorded in the final orders.

Key legal issues

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01

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

Holding

Yes - production of the title deed established prima facie absolute and indefeasible ownership, and the defendant adduced no evidence of fraud at the interlocutory stage

Reasoning

The plaintiff purchased the suit property in 2010 for Kshs 4,005,000 and produced a copy of the title deed. Under section 26 of the Land Registration Act, this is prima facie evidence of absolute and indefeasible ownership unless fraud or misrepresentation is shown. The defendant relied only on a lease with a third party holding an allotment letter and offered no evidence of fraud. A registered title is superior to an allotment letter.

p. 4
02

Whether damages would be an adequate remedy

Holding

No - quarrying changes the character of the land through erosion and topographical alteration which cannot be undone or compensated in damages

Reasoning

The court noted that quarrying activities such as limestone extraction cause soil depletion, deep alteration to the original topography, and increased physical and chemical erosion hindering plant germination. Even rehabilitation orders cannot restore the land. The plaintiff therefore could not be condemned to damages in lieu of his crystallised right protected by injunction.

p. 3

Legal principles established

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  • A registered title is prima facie evidence of absolute and indefeasible ownership unless fraud or misrepresentation is proved under section 26 of the Land Registration Act
  • Damages are not an automatic remedy and cannot be substituted for loss occasioned by a clear breach of the law
  • Quarrying causes environmental degradation that cannot adequately be compensated in damages

Court orders

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  1. 1.Temporary injunction restraining the defendant, his servants and/or agents from trespassing on, entering, excavating, quarrying, occupying or in any other manner interfering with or dealing with Plot No. 700/III/MN, Kanamai, Kilifi County, pending the hearing and determination of the suit

Authorities

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Legislation

  • Land Registration Actsection 26
  • Civil Procedure RulesOrder 21 [1]

Cases cited (7)

  • Giella vs Cassman Brown and Company Limited
    (1973) E.A.
  • Kiplangat Shelisheli Mutarakwa v Joseph Rotich Kones
    (2018) eKLR
  • Mohamed Ahmed Dahia & 3 others v Abbey Hassan Maalim
    (2020) eKLR
  • Njuwangu Holdings Ltd vs Langata KPA Nairobi & 5 others
    ELC No. 139 of 2013
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & another
    [2015] eKLR
  • American Cyanamid vs Ethicon Limited
    [1975] AC 396
  • Joseph Siro Mosioma vs Housing Finance Company of Kenya Limited & 3 others
    [2008] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land in Kilifi County (interlocutory application in a pending 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, "Gikonyo v Khan (Environment & Land Case 88 of 2021) [2022] KEELC 3034 (KLR)", Case Analysis (2022). Environment & Land Case 88 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3034/eng@2022-06-14

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