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ELCPartially AllowedEnvironment & Land Case E106 of 2023· [2023] KEELC 21542 (KLR)

Adeti Limited v Kamau & 2 others

Environment and Land Court
14 November 2023
2,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Nairobi court protected a company's possession of disputed Embakasi land and ruled that a property's value alone cannot strip the Environment and Land Court of jurisdiction.

What this practically means

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Executive summary

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The plaintiff, Adeti Limited, sued the 1st and 2nd Defendants and the Chief Land Register over Title No. Nairobi Block 105/4988 at Utawala Estate, Embakasi, claiming it was allotted the property by Embakasi Ranching Company Limited and registered as proprietor in 2012, and that the 1st Defendant procured a recent parallel title through which the 2nd Defendant threatened eviction. The plaintiff moved by notice of motion dated March 14, 2023 seeking an interlocutory injunction restraining interference with its quiet possession, police enforcement and costs. The 1st and 2nd Defendants filed a preliminary objection dated April 8, 2023 contending the court lacked pecuniary jurisdiction because the property's market value was below Kshs.20,000,000, relying on a 2015 valuation of Kshs.8,600,000; the plaintiff countered with a May 2023 valuation of Kshs.22,500,000. The court held that the value of the subject matter does not oust the ELC's jurisdiction, both the ELC and Magistrates' court having jurisdiction, and dismissed the preliminary objection. On the injunction, the court found the plaintiff had demonstrated a prima facie case through its title and searches, was in physical possession since 2009, and that the balance of convenience favoured retaining possession pending trial. The application was allowed as presented under prayers (c), (d) and (f), granting the interlocutory injunction, directing the OCS Embakasi Police Station to ensure compliance, and awarding costs of the application.

Key legal issues

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01

Pecuniary jurisdiction of the ELC

Holding

The preliminary objection on pecuniary jurisdiction was dismissed; the value of the subject matter does not oust the ELC's jurisdiction.

Reasoning

The defendants argued the property's market value was below Kshs.20,000,000, ousting ELC jurisdiction. The court held that both the ELC and the Magistrates' court have concurrent jurisdiction over such claims, and the ELC may transfer the matter if appropriate. The objection was therefore misplaced and dismissed.

p. 5
02

Interlocutory injunction

Holding

The application for interlocutory injunction was allowed on the basis of a prima facie case and balance of convenience.

Reasoning

The plaintiff annexed searches and a copy of title demonstrating a prima facie case, and was in physical possession utilising the property since 2009. Refusal of the injunction risked dispossession by defendants who had not denied attempting to gain access. The balance of convenience favoured preserving the status quo pending trial.

p. 5

Legal principles established

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  • The value of the subject matter does not oust the jurisdiction of the ELC; the court may in its discretion transfer the matter to the Magistrates' court.
  • A preliminary objection cannot succeed where the pleaded facts are contested or require ascertainment.
  • A party in physical possession of disputed land has the balance of convenience in its favour pending trial.

Court orders

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  1. 1.Preliminary objection dated April 8, 2023 dismissed as misplaced
  2. 2.Interlocutory injunction issued restraining the 1st and 2nd defendants, their agents and employees, from entering, accessing, dealing in, trespassing into, invading or breaking into the suit property, evicting the plaintiff's workers, demolishing buildings, gates and perimeter walls, or interfering with the plaintiff's quiet possession of Title No. Nairobi Block 105/4988 pending hearing and determination of the suit
  3. 3.Officer Commanding Embakasi Police Station to ensure compliance with the orders
  4. 4.Costs of the application provided for (granted under prayer (f))

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(2), 26, 50(1), 169(1)(a) and (2)
  • Environment and Land Court ActSection 3
  • Magistrates’ Court Act, 2015Sections 7 and 9

Cases cited (10)

  • Nitin Properties Ltd v. Sinqh Kalsi & another
    [1995] eKLR

    A preliminary objection cannot be raised where pleaded facts are contested or need ascertainment

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR

    The three pillars for interlocutory injunctions

  • Wreck Motors Enterprises v The Commissioner of Lands and others
    Civil Appeal No. 71 of 1997

    Where there are two competing titles, the first in time prevails

  • Benia Properties Limited v Svedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR

    Reaffirmation of the first-in-time principle between competing titles

  • Gitwany Investment ltd v Taimal Ltd & 3 others
    (2006) eKLR

    Competing titles - first in time prevails

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696

    Definition and scope of a preliminary objection

  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    Jurisdiction must be determined at the outset

  • John Njue Nyaga v Nicholas Njiru Nyaga & another
    (2023) eKLR

    Equity aids those who come with clean hands

  • Giella v Cassman Brown
    [1973] E.A 358

    Tests for granting interlocutory injunction

  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR

    Definition of balance of convenience

Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act, 2011 (jurisdiction of the ELC over land disputes)

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, "Adeti Limited v Kamau & 2 others", Case Analysis (2023). Environment & Land Case E106 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21542/eng@2023-11-14

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