Stephen Njaci Mirara v Jacinta Wambui Waruimbo & another [2016] KEELC 527 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Prima facie case of adverse possession for purposes of interlocutory injunction
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
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.
Irreparable harm
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
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.
Competency of the Originating Summons under Order 37 Rule 7(2)
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
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.
Legal principles established
#- 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
#- 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.The order is limited only to the portion of the suit property measuring 0.022 ha. occupied by the Applicant
- 3.Costs of the application shall be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.