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ELCDismissed· [2022] KEELC 3385 (KLR)

Mikaal Limited v Dawagi Investments Limited (Environment & Land Case 42 of 2021) [2022] KEELC 3385 (KLR)

Environment and Land Court
28 July 2022
JOJ. O. Olola
2,023 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A landowner seeking a court injunction in Kenya must prove a strong registered claim with real registry evidence; vague or unsupported titles will lose.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 11th May 2021 in which Mikaal Limited, the Plaintiff, sought a temporary injunction restraining Dawagi Investments Limited, the Defendant, from entering, trespassing on, demolishing or constructing on Plot No. Chembe/Kibabamshe/376 at Watamu Beach, Kilifi County, and an order directing the OCS Watamu Police Station to enforce such orders. The Plaintiff claimed to be the registered proprietor since 1996, validated by a National Land Commission Gazette Notice dated 17th July 2017, and in peaceful possession since the early 1990s until an alleged invasion on 8th May 2021. The Defendant, through a Replying Affidavit sworn by its Managing Director Anthony Safari Kitsao, asserted it had lawfully acquired, owned and developed the property, relying on a Title Deed dated 10th March 2015 and official searches, and on a subsequent NLC Gazette Notice of 25th May 2018 recommending the property be regularized in its favour. The Defendant also showed the Plaintiff knew of its interest since 2014, as acknowledged in earlier consolidated Petitions. Applying the Giella v Cassman Brown principles, the court found the Plaintiff had not established a prima facie case or irreparable loss: its Lease was unsupported by registry records, and its claim of continuous possession lacked candour. The Motion was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the Plaintiff established a prima facie case

Holding

The Plaintiff failed to demonstrate a clear and unmistakable right; its Certificate of Lease was unsupported by any official registration records, and the National Land Commission had reviewed its earlier position in favour of the Defendant.

Reasoning

Both parties held competing titles over the same property. The Plaintiff's Lease dated 30th December 1996 had no Certificate of Official Search, White Card or other registry evidence. The Defendant produced a Title Deed dated 10th March 2015, official searches, and the chain of history from the Settlement Fund Trustees. The NLC's Gazette Notice of 25th May 2018 recommended the property be regularized in favour of the Defendant. The Plaintiff's own pleadings in earlier Petitions showed it knew of the Defendant's interest since 2014.

p. 3
02

Whether the Plaintiff would suffer irreparable injury

Holding

No irreparable loss was demonstrated; damages could compensate and the Plaintiff's candour was doubtful given its prior Petitions.

Reasoning

The Plaintiff had earlier filed consolidated Petitions (ELC Petition Nos 12, 13, 14 of 2011 and 17 of 2015) seeking recovery or compensation, acknowledging in those Petitions that the Defendant had purchased the suit property for Kshs.14,250,000 under a Sale Agreement dated 30th June 2014. Its assertion of continuous peaceful possession since the 1990s was therefore not candid, undermining its claim of imminent irreparable loss.

p. 4

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case with probability of success, irreparable injury not compensable by damages, and failing which the balance of convenience.
  • A party claiming a prima facie case must show a clear and unmistakable right directly threatened by the act sought to be restrained.

Court orders

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  1. 1.The Notice of Motion dated 11th May 2021 is dismissed
  2. 2.Costs of the application awarded to the Defendant

Authorities

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Cases cited (3)

  • Giella v Cassman Brown Company Limited
    (1973) EA 359
  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    (2003) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (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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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mikaal Limited v Dawagi Investments Limited (Environment & Land Case 42 of 2021) [2022] KEELC 3385 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3385/eng@2022-07-28

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