Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment (Originating Summons; application dated 6 May 2013)· [2013] KEELC 77 (KLR)

Tabitha Waitherero Kimani v Joshua Ng'ang'a [2013] KEELC 77 (KLR)

Environment and Land Court
25 September 2013
MSMunyao Sila
1,002 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

An Eldoret court stopped a landowner from evicting a woman who has occupied a plot since 1995, protecting her adverse possession claim until trial.

What this practically means

#

Executive summary

#
This was an interlocutory application by way of notice of motion dated 6 May 2013, brought under Order 40 of the Civil Procedure Rules, Sections 63(c) and (e) of the Civil Procedure Act and Section 13 of the Environment and Land Court Act, in which the plaintiff sought an injunction restraining the defendant from evicting her from a portion measuring 60 feet by 55 feet out of Eldoret Municipality Block 16/Kamukunji/190, pending the hearing and determination of an Originating Summons under Order 37(7) of the Civil Procedure Rules and the Limitation of Actions Act claiming title by adverse possession. The plaintiff deponed that she purchased the portion in 1994, moved in during 1995 and has been in continuous possession for about 18 years, exceeding the 12-year limitation period, and that the defendant had issued a quit notice. The defendant, acting in person, opposed the application, asserting registered ownership following purchase from Geoffrey Waweru Muchina and challenging the plaintiff to produce a sale agreement; he admitted issuing the notice to vacate. Applying the Giella v Cassman Brown principles, Munyao Sila J held that although the court would not at that stage determine whether the possession was quiet and uninterrupted, the plaintiff's undenied occupation ought not to be disturbed pending trial. The application was allowed: the defendant was restrained from evicting the plaintiff from the claimed portion until the suit was determined on merits, an order of inhibition was issued against registration of any dispositions on the suit land, and costs of the application were made costs in the cause.

Key legal issues

#
01

Whether the plaintiff was entitled to an interlocutory injunction restraining eviction from land claimed by adverse possession

Holding

Injunction granted; the plaintiff's occupation of the claimed portion ought not to be disturbed pending the hearing of the suit, and an inhibition was also issued on the title

Reasoning

The court applied the Giella v Cassman Brown principles. The plaintiff claimed to have been in possession since 1995, a period of about 18 years, exceeding the 12-year limitation period. The defendant did not deny the plaintiff's current occupation and admitted issuing a notice to vacate, evidencing an imminent threat of eviction. Although the court declined to make any final statement on whether possession was quiet and uninterrupted, it found that preservation of the position pending trial was appropriate and allowed the injunction.

p. 2

Legal principles established

#
  • An interlocutory injunction application is for preservation of the subject matter of litigation, not a final determination of the parties' rights
  • Interlocutory injunctions are granted on the Giella v Cassman Brown principles: prima facie case with probability of success, damages as inadequate remedy, balance of convenience

Court orders

#
  1. 1.Application for injunction allowed
  2. 2.Defendant ordered not to evict the plaintiff from the portion of 60 by 55 feet claimed by her until the suit is heard and determined on merits
  3. 3.Order of inhibition issued inhibiting registration of any dispositions on the suit land pending hearing and determination of the suit
  4. 4.Costs of the application to be costs in the cause

Authorities

#

Legislation

  • Civil Procedure ActSection 63(c) and (e)
  • Environment and Land Court ActSection 13
  • Limitation of Actions ActCAP 22
  • Civil Procedure RulesOrder 40
  • Civil Procedure RulesOrder 37(7)

Cases cited (1)

  • Giella v Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Section 13 of the Environment and Land Court Act; Sections 63(c) and (e) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tabitha Waitherero Kimani v Joshua Ng'ang'a [2013] KEELC 77 (KLR)", Case Analysis (2013). Not stated in judgment (Originating Summons; application dated 6 May 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/77/eng@2013-09-25

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