[2005] KEHC 508 (KLR)
The court found that the plaintiff, as the registered proprietor of the suit land, had established a prima facie case with a probability of success. The defendant's occupation, based solely on a letter of reservation from the Commissioner of Lands, did not amount to a registrable interest in the property. The...
Source-derived case information.
- Citation
- [2005] KEHC 508 (KLR)
- Parties
- Plaintiff: Shiva Mombasa Limited; Defendant: Kenya Revenue Authority
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 171 of 2004
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction and Mandatory Order
- Outcome
- Interlocutory injunction and limited mandatory injunction granted in favour of the plaintiff.
- Legal Topics
- Injunctive Relief, Mandatory Injunction, Land Title Disputes, Possession and Access, Registration of Land, Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shiva Mombasa Limited
Plaintiff
Kenya Revenue Authority
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction and Mandatory Order
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from interfering with access to the suit premises.
- 2 Whether a mandatory injunction should issue compelling the defendant to demolish the wall enclosing the plaintiff's land.
- 3 Whether the defendant's occupation and letter of reservation confer any registrable interest in the suit land.
Ratio Decidendi
The court found that the plaintiff, as the registered proprietor of the suit land, had established a prima facie case with a probability of success. The defendant's occupation, based solely on a letter of reservation from the Commissioner of Lands, did not amount to a registrable interest in the property. The plaintiff's inability to access and develop the land due to the defendant's wall constituted a special circumstance justifying both a temporary and a limited mandatory injunction. The court held that meaningful access could only be achieved by ordering the defendant to demolish the portion of the wall directly enclosing the plaintiff's land. The orders were to remain in force pending...
Court Disposition
Interlocutory injunction and limited mandatory injunction granted in favour of the plaintiff.
Orders
- The defendant is restrained from interfering with the plaintiff's access to land No. 9594.
- The defendant must demolish the part of its wall directly enclosing the plaintiff's land within 30 days.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Case 171 of 2004
SHIVA MOMBASA LIMITED ................................................................ PLAINTIFF
- Versus -
KENYA REVENUE AUTHORITY ...................................................... DEFENDANT
Coram: Before Hon. Justice Mwera
Kassim S. for plaintiff/applicant
Mutuku for defendant
Mrs. Umara for 3rd party
Court clerk – Kazungu
R U L I N G
The plaintiff company’s prayers sought under Order 39 rules 1, 2, Civil Procedure Rules and section 3A Civil Procedure Act are that the defendant authority be restrained from interfering with the plaintiff’s access to the suit premises known as L.R. No. MN/1/9594 at Mombasa. And that a mandatory order be directed to the defendant to demolish its wall round the subject plot which, in essence excludes the plaintiff from entering it, with a view to build a business depot thereon. That is what Mr. Shah told the court.
Mr. Shah went over the history of how his client acquired the land by way of purchase from one Francis Wanjohi who initially got a 99 years lease from the Government of Kenya on 1/7/1995. The land was then sold to Sheikh Ali Taib who in turn sold it to the plaintiff on 5/9/2003. The plaintiff charged the land to Akiba Bank Limited and procured a loan which, Mr. Shah said, the plaintiff was servicing at a very high interest rate yet it cannot develop the subject land and use it to generate funds to repay the loan.
Mr. Matuku on his part told the court that since the days of the East African Community which ceased in 1977, the land in question was occupied by the present authority’s predecessor, the East African Customs and Excise Department. It had a training facility there and had fenced the whole plot. When the present authority succeeded the East African Customs & Excise Department, it inherited the facility and continued to use the place. The defendant had no title to the land except a letter of reservation dated 23/7/1979 from the Commissioner of Lands. That the portion in question is actually not built up, but it is intended for future expansion of the defendant’s training facility. That the defendant has since paid due fees and it awaits processing the transaction so that in the end it gets a title. That the plaintiff should or ought to know that all the time the defendant was in occupation of the plot having fenced it off.
Having heard both sides this court is satisfied that the plaintiff has made out a prima facie case with probabilities of success. It is the 3rd owner of the subject land which was first given to Francis Wanjohi by the Commissioner of Lands who is represented by the Hon. The Attorney General here (2nd defendant, in subsequent pleadings and proceedings). The plaintiff bought the land in 2003. It has a title which has been charged.
The (1st defendant) Kenya Revenue Authority only holds a letter of reservation/allotment from the very Commissioner of Lands (strange!) but as we all know, such letters do not signify having a registrative interest in land. It is no matter that the defendant has been in occupation for a long time by utilising a section of the fenced larger property. The plaintiff’s portion though enclosed in that wall is not built up.
In sum the plaintiff company has made out a case to warrant not only a temporary injunction but in the circumstances of the case, also a limited mandatory injunction. It is no good just to restrain the defendant from preventing the plaintiff from accessing its land. The defendant having built a wall around that land can, only give meaningful access by demolishing that part of the wall directly barring the plaintiff from its land. This appears a special circumstance requiring the mandatory order.
Accordingly the defendant should not interfere with the plaintiff’s access to its land No. 9594 and it must demolish that part of its wall directly enclosing the said land. The rest of the wall may await the out come of the suit. In case the defendant does not demolish the said part of the wall in the next 30 days, the plaintiff may itself do so for there is no reason why the defendant authority should exclude it from its property.
Orders to hold until this suit is finally determined or further orders.
Costs to the plaintiff.
Delivered on 30/11/2005.
J.W. MWERA
JUDGE