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ELCAllowedNot stated in the judgment· [2016] KEELC 16 (KLR)

Arthur Wamit Njoroge v Bernard Megosi Kerongo & 4 others [2016] KEELC 16 (KLR)

Environment and Land Court
16 December 2016
LGL. GACHERU
1,947 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that a registered landowner with a valid certificate can get a court order blocking trespassers and forcing police to enforce it.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court by L. Gacheru J, dated 16th December 2016, determines a Notice of Motion dated 27th January 2016 by the Plaintiff, Arthur Wamiti Njoroge, seeking a permanent injunction restraining the Defendants from claiming ownership of or interfering with the suit property L.R No. 12715/258 in Syokimau, Machakos County. The Plaintiff, who purchased the property from Trust Agencies (Kenya) Limited in 1998 and was registered as proprietor in November 1998, alleged that unidentified trespassers invaded the land from April 2014, assaulted his security guards, and began erecting a perimeter wall in December 2015 while the police declined to act, advising him instead to seek an eviction order from court. The Defendants neither entered appearance nor filed a response. Applying Order 40 Rule 1 of the Civil Procedure Rules and the Giella v Cassman Brown principles, the court found the Plaintiff's registration, payment of land rent and confirmation of ownership by the National Land Commission established a prima facie case, with the trespass allegations uncontroverted. Relying on Sections 24(a) and 25(1) of the Land Registration Act, the court held that the Plaintiff's rights as registered proprietor were infringed. The application was allowed entirely in terms of prayer No. 3, with the OCS Mlolongo directed to enforce the order and costs in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case as registered proprietor

Holding

The Plaintiff, as registered proprietor with evidence of purchase, payment of land rent and confirmation by the National Land Commission, is the rightful owner and has established a prima facie case

Reasoning

The court noted annextures showing registration on 12th November 1998 after purchase from Trust Agencies (Kenya) Limited, proof of payment of land rent to the Ministry of Lands, and a letter from the National Land Commission confirming registration in the Plaintiff's name. With no response filed by the Defendants and no contrary evidence, the Plaintiff's Certificate of Lease stood unimpaired, satisfying the first Giella principle.

p. 4
02

Whether the uncontroverted allegations of trespass justified injunctive relief

Holding

The Defendants' trespass, alleged and uncontroverted, infringed the Plaintiff's proprietary rights protected under Sections 24(a) and 25(1) of the Land Registration Act, justifying an injunction under Order 40 Rule 1

Reasoning

The court relied on photographic evidence showing activities on the suit property, including an advert selling the plot, which the Defendants did not rebut having failed to enter appearance. It held that the Plaintiff's rights under Sections 24(a) and 25(1) of the Land Registration Act were infringed, and that an uncancelled Certificate of Lease entitled the Plaintiff to court protection.

p. 4

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership, and those rights cannot be defeated except as provided in the Land Registration Act
  • Equity will not assist law breakers; those who flout the law by infringing the rightful title of others ought to be restrained by injunction

Court orders

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  1. 1.Permanent injunction restraining the Defendants jointly and severally, by themselves, their agents, servants and/or employees, from claiming ownership of or in any manner interfering with the suit property known as L.R No. 12715/258 pending the hearing and determination of the suit
  2. 2.The Officer Commanding Mlolongo Police Station (OCS) to enforce the order
  3. 3.Costs shall be in the cause
Jurisdiction invoked
Order 40 Rules 1, 2, 10 & 11 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 24 of the Land Registration Act

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, "Arthur Wamit Njoroge v Bernard Megosi Kerongo & 4 others [2016] KEELC 16 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/16/eng@2016-12-16

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