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ELCAllowedNot stated in the judgment as provided· [2024] KEELC 5226 (KLR)

Kamkis Trading Company Ltd v Nairobi City County & another (Environment & Land Case E188 of 2024) [2024] KEELC 5226 (KLR)

Environment and Land Court of Kenya
8 July 2024
1,990 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court stopped the demolition and sale of a landowner's property, confirming that a valid title certificate plus proof of destruction wins urgent protection in Kenya.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (Mogeni J) delivered on 8 July 2024 on a Notice of Motion dated 8 May 2024 brought by the plaintiff under Order 40 rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The plaintiff, through its director Kambale Muyale, sought a temporary injunction restraining the 1st Defendant from trespassing on, demolishing, selling, alienating or dealing with parcel LR 209/7994/1 Dar Salaam pending the hearing of the suit, with an order for police compliance through the OCS Central Police Station. The plaintiff asserted registered ownership, valid permits and a certificate of occupation, and alleged that between 8 and 9 May 2024 the 1st Defendant entered the property and began demolishing structures without notice. The application was opposed only by a statement of grounds of opposition denying improper enjoinder, trespass and proof of demolition. The court framed a single issue: whether the Applicant met the threshold for an injunction. Applying Giella v Cassman Brown, Mrao v First American Bank and Nguruman v Bonde Nielsen, the court found a prima facie case established by the certificates of title, found likely irreparable harm evidenced by photographs of demolition, and found the balance of convenience favoured the Applicant. The application was allowed: a temporary injunction issued restraining the 1st Defendant from trespassing, demolishing, selling, alienating or dealing with the suit parcel pending hearing and determination of the suit, with the OCS Central Police Station to ensure compliance, costs in the cause, and a pre-trial conference set for 24 July 2024. Note the judgment contains internally conflicting findings on the balance of convenience.

Key legal issues

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01

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

Holding

Yes - certificates of title annexed as KTL 1 showed the suit parcel registered in the Applicant's names, demonstrating registration and ownership.

Reasoning

The court examined the certificates of title annexed to the supporting affidavit and found parcel LR 209/7994/1 Dar Salaam registered in the Applicant's names. Being the registered owner and occupier, with possession evident from the pleadings and annexures, the Applicant established a genuine and arguable right apparently infringed by the 1st Defendant's alleged trespass and demolition, meeting the Mrao definition of a prima facie case.

p. 4
02

Whether the Applicant would suffer irreparable harm not adequately compensable by damages

Holding

Yes - as registered owner and occupier facing trespass and malicious destruction of developed property, the harm was likely irreparable.

Reasoning

The Applicant annexed photographs showing ongoing demolition of a property for which it held approvals, a certificate of occupation and necessary permits issued by the 1st Respondent. The court found the Respondents had trespassed and were demolishing the suit property, and concluded the destruction of the Applicant's property was harm that could not adequately be compensated by an award of damages if the injunction was refused.

p. 4
03

Balance of convenience

Holding

The balance of convenience tilts in favour of the Applicant as registered owner and occupier.

Reasoning

The judgment contains internally conflicting statements on the balance of convenience, but in allowing the application the court ultimately found the balance tilted towards the Applicant, who is the registered owner and occupier of the suit property, consistent with the conclusion that the Giella criteria were satisfied.

p. 4

Legal principles established

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  • The test for an interlocutory injunction is the Giella v Cassman Brown criteria: prima facie case with probability of success, irreparable harm not compensable by damages, and balance of convenience if in doubt.
  • A prima facie case is one which, on the material presented, the court concludes there exists a right apparently infringed by the opposite party calling for an explanation or rebuttal.
  • The burden is on the applicant to demonstrate irreparable injury that cannot be adequately remedied by damages; speculative injury will not suffice.

Court orders

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  1. 1.Temporary injunction restraining the 1st Defendant/Respondent, its servants, employees and agents from trespassing, demolishing, selling, alienating or in any other way disposing of or dealing with parcel No. LR 209/7994/1 Dar Salaam pending the hearing and determination of the suit
  2. 2.The OCS Central Police Station to ensure compliance of the court orders
  3. 3.Costs of the application be in the cause
  4. 4.Parties to go for PTC before the DR on 24/07/2024

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 rule 1
  • Civil Procedure Rules, 2010Order 40 rule 2
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 1A
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 1B
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 3A
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Rules, 2010Order 1 rule 3
  • Civil Procedure Rules, 2010Order 1 rule 9

Cases cited (3)

  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Nguruman Limited Vs Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Order 40 rules 1 and 2 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21)

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, "Kamkis Trading Company Ltd v Nairobi City County & another (Environment & Land Case E188 of 2024) [2024] KEELC 5226 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5226/eng@2024-07-08

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