Impact Chemicals Limited v County Assembly of Kisumu & 4 others; Kenya Commercial Bank Ltd (Interested Party) (Environment and Land Case Civil Suit E027 of 2022) [2024] KEELC 718 (KLR)
The bottom line
#A registered landowner in Kisumu failed to stop construction on its plots because the court doubted titles issued over land reserved for public use.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
No. Although the Plaintiff is the registered owner, the 1st Defendant's evidence that the suit properties were carved from land reserved for Water Treatment Works created doubt on the validity of the titles
The court accepted that the Plaintiff held certificates of lease for the suit properties, but held that registration is not conclusive where the alienation of reserved public land is impugned. The 1st Defendant produced a PDP approved by the Commissioner of Lands showing the land was reserved for Water Treatment Works, raising the prospect that the titles would be annulled under Article 40(6) if that were established at trial.
Whether the Plaintiff would suffer irreparable injury not compensable by damages
No, because the Plaintiff itself pleaded an alternative claim for compensation of Kshs. 30,000,000/-, showing damages would be adequate
The amended plaint sought compensation in the sum of Kshs. 30,000,000/- in the alternative to possession, demonstrating that any loss could be quantified and compensated. There was no evidence that the 1st Defendant would be unable to pay that sum, so damages remained an adequate remedy and the second Giella limb failed.
Where the balance of convenience lies
Though unnecessary to decide, the balance tilts in favour of the 1st Defendant, which is in possession and has committed Kshs. 418,356,348.60 of public funds to construction
The court held it need not reach the third Giella limb, but observed that the Plaintiff had never taken possession since acquiring the properties in 2017, while the 1st Defendant, allocated the land by the County Government of Kisumu, was in possession and had incurred massive public expenditure on the Ultra-Modern County Assembly Chamber works.
Legal principles established
#- An applicant for an interlocutory injunction must show a prima facie case with a probability of success; failing which the application may be determined on the balance of convenience
- Indefeasibility of title under section 26 of the Land Registration Act is subject to Article 40(6) of the Constitution and does not protect unlawfully acquired titles
- Alienation of land reserved for a public purpose is null and void ab initio; such a title does not exist in law
Court orders
#- 1.The amended Notice of Motion dated 24th January 2023 is dismissed
- 2.Costs to be in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit properties in Kisumu Municipality/Block 13/107 and 109
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Impact Chemicals Limited v County Assembly of Kisumu & 4 others; Kenya Commercial Bank Ltd (Interested Party) (Environment and Land Case Civil Suit E027 of 2022) [2024] KEELC 718 (KLR)", Case Analysis (2024). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/718/eng@2024-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.