[2020] KEELC 843 (KLR)
The court found that the plaintiff, having produced a certificate of title, established a prima facie case of ownership over the disputed land. Although the defendants claimed the land was a public road, this issue could only be conclusively determined at trial. The court held that the developments proposed by the...
Source-derived case information.
- Citation
- [2020] KEELC 843 (KLR)
- Parties
- Plaintiff: Technology Investments Ltd; Defendant: Asu Khanji Patel; Defendant: Registrar of Lands, Mombasa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 55 of 2020
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory_injunction_granted
- Legal Topics
- Injunctive Relief, Ownership Dispute, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Technology Investments Ltd
Plaintiff
Asu Khanji Patel
Defendant
Registrar of Lands, Mombasa
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction.
- 2 Whether the balance of convenience and risk of irreparable harm justify preserving the suit property pending trial.
- 3 Whether the plaintiff's title to the land is sufficient to warrant interim protection despite the defendants' claim that the land is a public road.
Ratio Decidendi
The court found that the plaintiff, having produced a certificate of title, established a prima facie case of ownership over the disputed land. Although the defendants claimed the land was a public road, this issue could only be conclusively determined at trial. The court held that the developments proposed by the 1st defendant would fundamentally and irreversibly alter the character of the land, potentially causing the plaintiff irreparable harm. The balance of convenience therefore favored preserving the status quo by restraining both parties from undertaking any further developments on the land until the case is heard and determined. The court thus granted the interlocutory injunction...
Court Disposition
interlocutory_injunction_granted
Orders
- The defendants are restrained from entering, developing, or interfering with the suit land until the case is heard and determined.
- The plaintiff is ordered not to undertake any developments on the suit land and to maintain it in its current state until the case is concluded.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT OF KENYA
AT MOMBASA
ELC NO. 55 OF 2020
TECHNOLOGY INVESTMENTS LTD...................................PLAINTIFF
VERSUS
ASU KHANJI PATEL....................................................1ST DEFENDANT
REGISTRAR OF LANDS, MOMBASA..................... 2ND DEFENDANT
RULING
(Application for injunction; plaintiff claiming interference from 1st defendant; defendants asserting that what the plaintiff claims to be her land is actually a road; plaintiff having title; nature of developments proposed by 1st defendant will massively alter the character of the land; important to preserve the subject matter of the case as it is pending conclusion of the dispute; injunction issued)
1. Through a plaint filed on 21 May 2020, the plaintiff averred that she is the registered proprietor of the land parcel MN/I/9596 located at Nyali in Mombasa. She pleaded that she purchased this property in the year 2017 for the sum of KShs. 100,000,000/= and took up possession. She complained that the 1st defendant had invaded the property, and in this suit, the plaintiff wishes inter alia to have the 1st defendant permanently restrained from the suit land and a declaration of ownership of the land.
2. Together with the plaint, the plaintiff filed an application seeking orders of injunction to restrain the 1st defendant from the suit land until the case is heard and determined. It is that application which is the subject matter of this ruling. To the supporting affidavit, the plaintiff has inter alia annexed a copy of the sale agreement, the transfer instrument, and the certificate of title.
3. The position of the respondents is that where the plaintiff’s alleged plot is located is actually a road and the 1st defendant needs it in order to undertake some developments.
4. I did visit the disputed land on 2 October 2020 so as to familiarise myself with the same before making any ruling on the application. This visit to the site has assisted greatly in making me determine whether or not an injunction should issue and my delivery will therefore be pretty brief.
5. The plaintiff has displayed a certificate of title and prima facie she is the owner of the suit land. I am aware that the defendants claim that the plot in issue is a road, but the conclusion of whether or not it is actually a road or a good plot, can only be made after hearing the parties. For now, given that the plaintiff has title, however contested, it is important that an order of injunction do issue so as to preserve the suit property. The nature of developments that the 1st defendant proposes to undertake are massive, and if undertaken, will certainly and completely alter the character of the suit land which may cause the plaintiff irreparable loss. The balance of convenience thus tilts towards maintaining the land as it is until the case is heard and determined.
6. I will therefore issue an order restraining the defendants from entering, developing, or in any other way interfering with the suit land, until this case is heard and determined. I noted during the site visit that the 1st defendant’s developments include making of gates that would access the suit land. Let these walls remain in the state that they currently are and no additional developments, including the placing of gates, should be done.
7. I think it is also important for the plaintiff not to undertake any developments in the suit land and I also order the plaintiff to maintain the suit land in the state that it currently is until the case is concluded.
8. The costs of this application will be costs in the cause.
9l It is so ordered.
DATED AND DELIVERED AT MOMBASA THIS 8TH DAY OF OCTOBER 2020
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA
IN THE PRESENCE OF:
Mr. Angwara for the plaintiff/applicant
Ms Onyiego holding brief for Mr Onyony for the 1st defendant/respondent
Mr Nguyo for the 2nd defendant/respondent
Court Assistant; Wilson Rabongo