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ELCAllowed· [2024] KEELC 5367 (KLR)

Registered Trustees of Catholic Diocese of Nyahururu v County Government of Nyandarua & another (Environment and Land Case E003 of 2023) [2024] KEELC 5367 (KLR)

Environment and Land Court
18 July 2024
2,132 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff filed a plaint dated 12.10.2023 seeking declarations that the parcel formerly known as Ex Debruins Farm House – Passenga Township, now Nyairoko Township/394, belongs to it; cancellation of the 1st Defendant's registration; a permanent injunction; and costs. It pleaded allocation by the Director of Settlement in August 1982, payment of allotment fees and decades of open, exclusive possession including operation of a dispensary. Simultaneously it moved for a temporary injunction and an order of inhibition, alleging that on 09.10.2023 the 1st Defendant's agents invaded the property threatening demolition. The 1st Defendant countered that the land was reserved in the 1964 development plan for a police station and in 2020 for a village polytechnic, denied fraud, and argued the Giella principles were unmet. The 2nd Defendant filed nothing. Framing three issues, the court applied Giella v Cassman Brown and found a prima facie case: evidence of the 1982 allotment, acknowledged payment, long possession without objection, and a 2005 Ministry of Lands letter confirming allocation. The services rendered were held incapable of monetary compensation, and in any event the balance of convenience favoured the long-time possessor. Citing Shivabhai Patel v Manibhai Patel on preservation of disputed property, the court also granted an inhibition. On costs, invoking Section 27 of the Civil Procedure Act and Hussein Janmohamed, it ordered costs in the cause. The court granted both interim orders pending trial and fixed mention for pre-trial directions on 14.10.2024.

Key legal issues

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01

Whether a prima facie case with a probability of success was established

Holding

The Plaintiff established a prima facie case: evidence of 1982 allotment, payment of allotment fees and long possession without objection.

Reasoning

The court found prima facie evidence that the Director of Settlement allocated the suit property to the Plaintiff in 1982 and acknowledged payment of allotment fees. There was sufficient evidence of possession, including operation of a dispensary, and no objection by the 1st Defendant or its predecessor. A letter dated 24.02.2005 from the Ministry of Lands and Housing confirmed the allocation due to permanent improvements, satisfying the first Giella principle.

p. 4
02

Whether irreparable harm and the balance of convenience favoured interim relief

Holding

The services rendered on the property are not capable of monetary compensation; in any event the balance of convenience favours the Plaintiff as long-time possessor.

Reasoning

The court held that the nature of services rendered by the Plaintiff (a dispensary) could not be adequately compensated in damages. Even if in doubt on irreparable harm, the balance of convenience favoured the Plaintiff, who had been in possession for a long time and would suffer greater hardship without the injunction than the 1st Defendant would with it.

p. 4
03

Whether an order of inhibition should issue

Holding

An order of inhibition was granted to preserve the disputed property pending full trial.

Reasoning

Ownership of the suit property is disputed and can only be resolved at a full hearing. Having found a prima facie case with probability of success, and applying Shivabhai Patel v Manibhai Patel on the court's duty to preserve disputed property, the court found an inhibition appropriate to prevent dealings with the land pending trial.

p. 4

Legal principles established

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  • Costs follow the event and a successful party should ordinarily be awarded costs unless the court, for good reason, directs otherwise.
  • It is the duty of the court to preserve disputed property pending resolution of the dispute.

Court orders

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  1. 1.Temporary injunction restraining the 1st Defendant from entering, trespassing, or in any way interfering with the Plaintiff's possession of the suit property formerly known as Ex-Debruins Farm House – Passenga Township and now registered as Nyairoko Township/394 pending the hearing and determination of the suit.
  2. 2.Order of inhibition preventing any dealings with the parcel of land known as Nyairoko Township/394 pending the hearing and determination of the suit.
  3. 3.Costs of the application shall be in the cause.
  4. 4.Mention on 14.10.2024 for pre-trial directions.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 rules 1, 2, 4 & 8
  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure ActSection 27 (proviso)

Cases cited (3)

  • Giella - v- Cassman Brown & Co. Ltd
    [1973] EA 358
  • Shivabhai Patel v Manibhai Patel
    [1959] EA 907
  • Hussein Janmohamed & Sons – v- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original jurisdiction over land disputes; interlocutory application under Order 40 rules 1, 2, 4 & 8 of the Civil Procedure Rules, 2010 and Sections 1A, 1B & 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, "Registered Trustees of Catholic Diocese of Nyahururu v County Government of Nyandarua & another (Environment and Land Case E003 of 2023) [2024] KEELC 5367 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5367/eng@2024-07-18

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