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ELCPartially AllowedELC No. 1253 of 2015 (OS)· [2016] KEELC 527 (KLR)

Stephen Njaci Mirara v Jacinta Wambui Waruimbo & another [2016] KEELC 527 (KLR)

Environment and Land Court
20 May 2016
2,161 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant filed an Originating Summons dated 8th December 2015 claiming ownership of a 0.022 ha. portion of LR No. Ruiru/Ruiru East Block 2/998 by adverse possession and sought registration as proprietor. Together with the summons he moved the court by Notice of Motion of even date for an injunction restraining the Respondents from transferring, alienating or interfering with his possession. He asserted he bought the portion from the 2nd Respondent in 2001, was given vacant possession, built a family home and occupied openly for over 12 years. The 1st Respondent, registered owner since June 1992, said she was working in England and found the Applicant a trespasser; the 2nd Respondent admitted the mistaken sale and offered an alternative plot. Applying Giella v Cassman Brown and Wambugu v Njuguna, the court found the Applicant had established a prima facie case of adverse possession, having occupied without permission openly and continuously for over 13 years in acts inconsistent with the registered owner's rights, and would suffer irreparable harm since his family home was on the land. The objection that the Originating Summons offended Order 37 Rule 7(2) for want of a certified extract of title was rejected: the annexed copy of the title deed sufficed, and any deficiency would have been overruled as a procedural technicality under Article 159(2)(d). The application was allowed in terms of prayer 3, limited to the 0.022 ha. occupied portion, with costs in the cause.

Key legal issues

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01

Prima facie case of adverse possession for purposes of interlocutory injunction

Holding

The Applicant established on a prima facie basis that he had acquired the 0.022 ha. portion by adverse possession, having occupied it openly, continuously and without permission for over 13 years in acts inconsistent with the registered owner's rights

Reasoning

The court found the property registered in the 1st Respondent's name since 1992, that the Applicant entered in 2002 without permission through the 2nd Respondent's mistaken allocation, and occupied openly and continuously for over 13 years, building a permanent home. Acts of occupation inconsistent with the owner's rights amounted to dispossession. The court was careful to note this was a prima facie view without deciding the matter with finality at the interlocutory stage.

p. 3
02

Irreparable harm

Holding

The Applicant would suffer irreparable harm not compensable in damages since his family home is on the land and eviction would follow if the injunction were refused

Reasoning

The court reasoned that the Applicant had built a permanent residential house occupied with his family; if the injunction was not granted he would be evicted, and the 1st Respondent had already served a notice to vacate. Eviction from one's only home could not adequately be compensated in damages, satisfying the second Giella condition.

p. 3
03

Competency of the Originating Summons under Order 37 Rule 7(2)

Holding

The objection failed: the Applicant had annexed a copy of the title deed showing registration in the 1st Respondent's name, which complied with the rule; in any event non-compliance would have been a mere procedural technicality

Reasoning

The Respondents argued the OS was defective for want of a certified extract of title. The court found the annexed copy of the title deed (annexture SN3) sufficient compliance. It further held that even if there had been non-compliance, since ownership by the 1st Respondent was undisputed, the objection would be overruled as a procedural technicality under Article 159(2)(d) in favour of substantive justice.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with a probability of success and irreparable injury not compensable in damages; failing which the balance of convenience applies
  • To acquire title by adverse possession, the registered owner must have been dispossessed or must have discontinued possession; dispossession consists of acts inconsistent with the owner's enjoyment of the soil
  • Non-compliance with Order 37 rule 7(2) on annexing a certified extract of title is a procedural technicality that may be overlooked under Article 159(2)(d) where substantive justice is served

Court orders

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  1. 1.The Notice of Motion dated 8th December 2015 is allowed in terms of prayer 3 thereof (injunction restraining the Respondents from transferring, disposing of, alienating, dealing with, evicting the Applicant from or interfering with his quiet possession of the suit property)
  2. 2.The order is limited only to the portion of the suit property measuring 0.022 ha. occupied by the Applicant
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7(2)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (2)

  • Giella vs. Cassman Brown Co. Limited
    (1993) EA 358
  • Wambugu vs. Njuguna
    (1983) KLR 173
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land, including claims for adverse possession; Article 159(2)(d) of the Constitution invoked on substantive justice

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, "Stephen Njaci Mirara v Jacinta Wambui Waruimbo & another [2016] KEELC 527 (KLR)", Case Analysis (2016). ELC No. 1253 of 2015 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/527/eng@2016-05-20

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