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ELCDismissedNot stated in the judgment (Petition with Notice of Motion dated 9th October 2023)· [2024] KEELC 1515 (KLR)

Langat & another (Suing on Behalf of Talai Community Clan Organization) v National Housing Corporation (Environment & Land Petition 2 of 2023) [2024] KEELC 1515 (KLR)

Environment and Land Court
21 March 2024
4,127 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop Kericho County's housing project because the claimants had no title documents proving ownership of the land.

What this practically means

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Executive summary

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The Petitioners, officials of the Talai Community clan organization, moved the Environment and Land Court at Naivasha by a Notice of Motion dated 9th October 2023 seeking interim orders restraining the Respondent, Kericho County Government, from evicting them from L.R. No. 631/1834-1883 or dealing with the land pending hearing of a petition. They asserted occupation by over 200 Talai families for over sixty years pursuant to the Laibon Removal Ordinance of 1934. The Respondent countered that the Applicants lacked locus standi, that the land was public land reserved by the Commissioner of Lands in 1991 and vested in the Respondent under Article 62 of the Constitution, and that it had lawfully procured a contractor to build affordable housing units at a contract sum of Kshs. 283,485,144.16. The court directed a site visit by the Deputy Registrar, which found only 14 mabati structures occupied by the Applicants, located outside the phase one project parameters. Applying the Giella v Cassman Brown principles, the court held that the Applicants, holding no title or registerable document, had not established a prima facie case with a probability of success; because the Giella conditions are sequential, the remaining conditions fell away. Weighing the overriding public interest in affordable housing, the court dismissed the application, vacated the status quo orders of 11th October 2023 but substituted an order allowing phase one construction to proceed while the Applicants remained on the land pending determination of the suit. Costs were ordered to be in cause.

Key legal issues

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01

Whether the Applicants established a prima facie case for interlocutory injunction

Holding

They did not, as they held no title or registerable document to the suit land

Reasoning

The court applied Section 26 of the Land Registration Act treating a certificate of lease as conclusive evidence of proprietorship, and the definition of a prima facie case in Mrao v First American Bank. The Applicants exhibited no document proving ownership or allocation of L.R. No. 631/1834-1883 to the Talai Community. Without proof of a right, the first Giella condition failed, and because the conditions are sequential, the court did not consider irreparable harm or balance of convenience.

p. 7
02

Whether the status quo orders of 11th October 2023 should be vacated

Holding

Vacated, but substituted with a tailored order permitting phase one construction while the Applicants remain on the land

Reasoning

The Deputy Registrar's site report showed only 14 mabati structures occupied by the Applicants, located outside the parameters of the phase one project, with only three temporary houses near the river likely to be affected. Balancing the overriding public interest in affordable housing with the Applicants' occupation, the court fashioned a substituted order preserving the suit's substratum while allowing the project to proceed.

p. 8
03

Whether the Applicants' conduct disentitled them to equitable relief

Holding

The court noted the possibility but decided the application on the prima facie case and public interest grounds

Reasoning

Relying on Moses Ngenye Kahindo v Agricultural Finance Corporation, the court observed that an injunction is a discretionary equitable remedy that may be denied where the applicant's conduct falls short of equity's approval. The Applicants' claim that over 200 families occupied the land was contradicted by the site report showing only 14 structures occupied by them, a discrepancy the court weighed in considering whether an equitable remedy was deserved.

p. 7

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case with a probability of success as the first, sequential condition; failure of the first condition forecloses consideration of the other Giella conditions unless the court is in doubt
  • An injunction is a discretionary equitable remedy which may be refused where the applicant's conduct does not meet the approval of a court of equity
  • A letter of reservation relied on as proof of ownership of land does not by itself confer registrable title; a certificate of lease is conclusive evidence of proprietorship under Section 26 of the Land Registration Act

Court orders

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  1. 1.The Application dated 9th October 2023 is dismissed
  2. 2.The interim orders of status quo issued on 11th October 2023 are vacated but substituted with an order that the Respondent and the contractor proceed with phase one of construction of the housing units (which does not affect temporary structures erected on the suit land by persons currently thereon), while the Applicants remain on the suit land pending determination of the suit
  3. 3.Costs to be in cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 2(2)
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 40(1)
  • Constitution of Kenya, 2010Article 62(1)(b)
  • Constitution of Kenya, 2010Article 63 and 63(3)
  • Constitution of Kenya, 2010Article 165(6)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 23
  • Civil Procedure RulesOrder 40
  • Civil Procedure ActSection 27
  • Land Registration ActSection 26
  • Land ActSection 134(2)
  • Laibon Removal Ordinance of 1934

Cases cited (17)

  • Giella v Cassman Brown
    (1973) EA 358
  • Law Society of Kenya v Office of the Attorney General & another; Judicial Service Commission (Interested Party)
    [2020] eKLR
  • Shiva Mombasa Limited v Kenya Revenue Authority
    [2005] eKLR
  • Law Society of Kenya v Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000
  • Mrao vs. First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 others
    [2015] eKLR
  • Ekaterra Tea Kenya PLC vs. Mokal Investment Limited & Another
    ELC No. E014 of 2022
  • Esther Nugari Gachomo v Equity Bank Limited
    [2019] eKLR
  • DR. Simon Waiharo Chege v Paramount Bank of Kenya Ltd
    Nairobi (Milimani) HCCC No. 360 of 2001
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    Nairobi Civil Appeal No. 33 of 2012, [2015] eKLR
  • Fatuma Abdi Jillo v Kuro Lengesen & another
    [2021] eKLR, ELC Appeal No. 31 of 2020
  • Thugi River Estate Limited & another v National Bank of Kenya Limited & 93 others
    [2015] eKLR, ELC Case No. 525 of 2013
  • Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd
    Judicial Review Application No. 6 of 2014
  • Moses Ngenye Kahindo vs. Agricultural Finance Corporation
    HCC No. 1044/01
  • Kenya Commercial Finance Co. Ltd –vs- Afraha Education Society
    (2001) IEA 86
  • Joseph Wambua Mulusya –vs- David Kitu & Another
    (2014) eKLR
Jurisdiction invoked
Articles 2(2) and 23 of the Constitution of Kenya 2010 and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Langat & another (Suing on Behalf of Talai Community Clan Organization) v National Housing Corporation (Environment & Land Petition 2 of 2023) [2024] KEELC 1515 (KLR)", Case Analysis (2024). Not stated in the judgment (Petition with Notice of Motion dated 9th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1515/eng@2024-03-21

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