Agnes Wambui Karungu v Joreth Limited & another [2011] KECA 272 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a land buyer to freeze sale and construction on disputed property while her adverse possession appeal is heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the appeal would be rendered nugatory if the order of injunction sought is not granted
Key legal issues
#Whether prescriptive rights under adverse possession run with the land irrespective of change of proprietorship
The Court found the proposed grounds of appeal arguable - namely that prescriptive rights are overriding interests running with the land despite subsequent registration of new proprietors - but it expressed no final view, as this was an interlocutory application.
The applicant complained that the learned Judge erred in holding that adverse possession could not run against respondents registered as owners only in 1999 and 2009. Counsel for the 2nd Respondent conceded the grounds were arguable. The Court was only required to decide arguability and nugatory-impact, not to determine the merits of the adverse possession claim, which remain for the full appeal.
Whether the balance of convenience/nugatory-impact test was satisfied
The Court granted a limited injunction restraining the 2nd Respondent from disposing of or further developing the land, so as to maintain the status quo pending the appeal.
The Applicant's structures had been demolished and she was no longer in possession; counsel narrowed the relief sought to preventing disposal and further development that would change the land's status. The 2nd Respondent indicated she uses the land as her matrimonial home and does not intend to sell. An injunction preserving the status quo was therefore appropriate.
Legal principles established
#- An arguable appeal for purposes of Rule 5(2)(b) need not be one that must or will succeed; it suffices that the grounds are arguable.
Court orders
#- 1.An order of injunction restraining the 2nd Respondent from disposing of the land
- 2.An order of injunction restraining the 2nd Respondent from carrying out any further development of the land, maintaining the status quo until the hearing and determination of the appeal
- 3.Costs of the motion to be in the proposed appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- E.L.C. No. 671 of 2009 (O.S)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction pending intended appeal)
Relief refused
#Injunction restraining the respondents from evicting the Applicant and interfering with her possession (broader prayers 2 and 3 as framed)
The court noted the Applicant's structures had been demolished and she was no longer in physical possession, so it granted only a narrowed injunction preserving the status quo against disposal and further development by the 2nd Respondent.
Costs
The costs of the motion shall be in the proposed appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We are satisfied the Applicant’s intended appeal is an arguable one; it must be remembered that an arguable appeal does not connote one that must or will succeed.
In effect the injunction we grant shall maintain the status quo as at the date of this order until the hearing and determination of the appeal. The costs of the motion shall be in the proposed appeal. We so order.
We think these grounds of appeal are arguable; Mr. Mungai, learned counsel for the 2nd Respondent, admitted as much before us.
Issues in the judgment
#The applicant's name appears as 'KARUNGU' in the cause heading but 'KURUNGU' in the body of the ruling.
The memorandum of appeal refers to the 2nd Defendant where the 2nd Respondent is meant, marked '(sic)' in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes Wambui Karungu v Joreth Limited & another [2011] KECA 272 (KLR)", Case Analysis (2011). Civil Application No. Nai. 122 of 2010 (UR. 90/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/272/eng@2011-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.