Robert Ng’ang’a Marubu & another v Julius Mboya Munyora alias Wamunyora & 3 others [2015] KEELC 650 (KLR)
The bottom line
#A Kenyan court refused to evict long-term occupants before trial, confirming that a registered land title does not automatically defeat adverse possession claims.
What this practically means
#Executive summary
#Key legal issues
#Distinction between prohibitory and mandatory injunctions at the interlocutory stage
Giella principles apply but differently: mandatory injunctions, unlike prohibitory ones that preserve the status quo, are intended to completely undo situations, so different considerations apply
The court held that Giella dealt with prohibitory injunctions preserving the status quo, whereas a mandatory injunction grants the applicant the substantive relief before trial. Because an order requiring positive steps carries a greater risk of injustice, the court must feel a higher degree of assurance that the claimant will establish the right at trial, or that the injustice of refusal outweighs that of granting.
Whether the Plaintiffs' title was strong enough to justify immediate possession
Doubts on the title (deed plans dated 2011 annexed to a lease registered in 2008; 2009 Gazette Notice showing subsisting legal charges) shook the root of the title and defeated the special case required
If the lease was truly registered in 2008, the deed plans dated 2011 could not have existed, requiring explanation and potentially impeaching the title for substantive irregularity. Further, a transfer could not plausibly have been registered while legal charges remained un-discharged, yet the Plaintiffs did not address the Gazette Notice evidence.
Effect of the Defendants' adverse possession claim and counterclaim
The adverse possession claim, raised in the defence and counterclaim, could not be summarily dealt with and a mandatory injunction not vindicated at trial would cause more injustice
Relying on Githu v Ndeete, the court noted that even a title acquired in 2008 is subject to accrued adverse possession claims. Since the Defendants claim 30 years' continuous possession and assert a right to be registered proprietors, that triable issue meant immediate eviction would risk real injustice if the Plaintiffs ultimately failed at trial.
Legal principles established
#- The overriding consideration on an interlocutory injunction is which course carries the least risk of injustice if it turns out to be wrong
- Mandatory injunctions at the interlocutory stage require a higher degree of assurance than prohibitory injunctions; a special case must be established
- A registered title acquired in 2008 remains subject to prior accrued claims of adverse possession
Court orders
#- 1.The application dated 18th July, 2013 is dismissed
- 2.Costs of the application awarded to the Defendants
- Jurisdiction invoked
- Original civil jurisdiction of the High Court (interlocutory application in a land suit); no specific provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Ng’ang’a Marubu & another v Julius Mboya Munyora alias Wamunyora & 3 others [2015] KEELC 650 (KLR)", Case Analysis (2015). not stated in judgment (application dated 18th July, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/650/eng@2015-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.