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ELCPartially AllowedELC Kakamega, Notice of Motion dated 24th November 2023 in the plaint dated 24th November 2023 (suit transferred 18th December 2023)· [2024] KEELC 6563 (KLR)

Rai v Principal Secretary, Ministry of Interior and Co-ordination of National Government & 5 others (Land Case 1 of 2024) [2024] KEELC 6563 (KLR)

Environment and Land Court
8 October 2024
SOS. Okong'o
2,533 words in judgment
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The bottom line

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The Environment and Land Court stopped government officials from interfering with a Kakamega landowner's plots after they demolished his buildings, because they proved nothing showing the land was public.

What this practically means

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Executive summary

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The Plaintiff, registered owner of Kakamega/Municipality Block III/213, 214 and 219, sued after government officials placed a notice declaring the properties government land, demolished his buildings under police protection on 24th November 2023, and the 5th Defendant disconnected electricity. He sought declarations, permanent and temporary injunctions, mandatory reconnection of power, general damages and costs. By Notice of Motion dated 24th November 2023 he sought temporary and mandatory injunctions pending trial. The application was withdrawn against the 5th Defendant and opposed by the remaining Defendants, who swore through Samson Macharia that the suit properties were government land reserved for housing, illegally excised from Kakamega Municipality/Block III/282, and that Article 40 does not protect illegally acquired public land. The Defendants filed no submissions. Applying Giella v Cassman Brown and Nguruman v Jan Bonde Nielsen, the court found the Plaintiff had established a prima facie case as registered proprietor in occupation, while the Defendants produced no evidence of their allegations of illegal excision. The court also found irreparable harm not compensable in damages, since after the demolition the Defendants' next move was uncertain and the land could be put beyond the Plaintiff's reach. Allowing the application in terms of prayers 4 and 6, the court granted a temporary injunction restraining the 1st, 2nd, 3rd, 4th and 6th Defendants from trespassing on or interfering with the suit properties pending determination of the suit, with costs to the Defendants. The substantive suit remains pending.

Key legal issues

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01

Prima facie case

Holding

The Plaintiff established a prima facie case as registered proprietor in occupation; the Defendants placed no evidence of their claim that the land was government land

Reasoning

The Plaintiff produced title documents showing registration and occupation of the suit properties. The Defendants alleged the properties were illegally excised from Kakamega Municipality/Block III/282 but filed no evidence in proof. On the face of the record the Plaintiff's case was more likely than not to succeed.

p. 5
02

Irreparable harm

Holding

The Plaintiff stood to suffer irreparable harm not compensable in damages since the properties could be put beyond his reach after the demolition

Reasoning

The buildings were already demolished while the application was pending, but the Plaintiff remained owner of the undeveloped land with a right to possession. The Defendants' next move was uncertain and the risk of the land being put beyond the Plaintiff's reach meant damages would be inadequate.

Legal principles established

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  • An applicant for a temporary injunction must show a prima facie case with probability of success, irreparable injury not compensable by damages, and failing which the balance of convenience applies
  • The burden of proving a prima facie case requires a clear and unmistakable right directly threatened, on a balance of probabilities

Court orders

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  1. 1.Temporary injunction granted in terms of prayer 4 of the Notice of Motion dated 24th November 2023 against the 1st, 2nd, 3rd, 4th and 6th Defendants only
  2. 2.Costs of the application to be borne by the Defendants (prayer 6 granted)

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land ActSection 2
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure Rules 2010Order 40 Rule 1; Order 51 Rule 1

Cases cited (3)

  • Giella v. Cassman Brown & Co. Ltd.
    [1973] E.A 358
  • Nguruman Limited v. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Limited v. First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; Civil Procedure Act (Sections 1A, 1B, 3, 3A) and Civil Procedure Rules 2010 (Order 40 Rule 1, Order 51 Rule 1)

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, "Rai v Principal Secretary, Ministry of Interior and Co-ordination of National Government & 5 others (Land Case 1 of 2024) [2024] KEELC 6563 (KLR)", Case Analysis (2024). ELC Kakamega, Notice of Motion dated 24th November 2023 in the plaint dated 24th November 2023 (suit transferred 18th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6563/eng@2024-10-08

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