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Court of AppealPartially AllowedCivil Application No. Nai. 122 of 2010 (UR. 90/2010)

Agnes Wambui Karungu v Joreth Limited & another [2011] KECA 272 (KLR)

Court of Appeal of Kenya
13 April 2011
1,039 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Omolo, Tunoi and Bosire, JJ.A) on a notice of motion brought under Rule 5(2)(b) of the Court of Appeal Rules seeking injunctions pending an intended appeal against a ruling of Muchelule, J. of 6th May 2010 in E.L.C. No. 671 of 2009 (O.S). The applicant claimed she bought the suit land (L.R. No. 13330/48, also Plot No. 296, Thome Farmers No. 5) in 1986 and had occupied it for 23 years, entitling her to registration by adverse possession. The High Court rejected the claim, holding that the 12-year prescriptive period had not run against the respondents, who became registered owners only in 1999 and 2009. On appeal to this Court, the applicant argued that prescriptive rights are overriding interests that run with the land irrespective of changes of proprietorship. The Court found those grounds arguable - a concession by the 2nd Respondent's counsel reinforced this - while stressing that an arguable appeal need not succeed. On nugatory impact, the Court noted the applicant's structures had been demolished and she was no longer in possession. Counsel for the applicant narrowed the relief to restraining disposal and further development by the 2nd Respondent, who stated she uses the land as her matrimonial home. The Court granted a limited injunction restraining the 2nd Respondent from disposing of or further developing the land, maintaining the status quo until the appeal is heard and determined, with costs of the motion in the proposed appeal. The application is therefore partially allowed; the High Court's ruling itself was not disturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the appeal would be rendered nugatory if the order of injunction sought is not granted

Key legal issues

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01

Whether prescriptive rights under adverse possession run with the land irrespective of change of proprietorship

Holding

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.

Reasoning

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.

p. 2
02

Whether the balance of convenience/nugatory-impact test was satisfied

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.An order of injunction restraining the 2nd Respondent from disposing of the land
  2. 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. 3.Costs of the motion to be in the proposed appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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.

p. 2

Costs

The costs of the motion shall be in the proposed appeal.

Quotable passages

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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.
p. 2Test for arguability under Rule 5(2)(b)
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.
p. 2Final orders - status quo injunction and costs
We think these grounds of appeal are arguable; Mr. Mungai, learned counsel for the 2nd Respondent, admitted as much before us.
p. 2Arguability concession

Issues in the judgment

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minor

The applicant's name appears as 'KARUNGU' in the cause heading but 'KURUNGU' in the body of the ruling.

minor

The memorandum of appeal refers to the 2nd Defendant where the 2nd Respondent is meant, marked '(sic)' in the judgment.

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, "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.