Claire Njeri Githunguri v Edwin Mwenda Githunguri & 3 others [2017] KEELC 522 (KLR)
The bottom line
#A Kenyan land court protected a family in occupation of disputed land, but refused to punish the alleged trespassers because the evidence wasn't sworn or strong enough.
What this practically means
#Executive summary
#Key legal issues
#Whether the Preliminary Objection was proper and whether the plaintiff had locus standi
Only the locus standi issue qualified as a proper Preliminary Objection; it failed because the plaintiff held a limited grant ad litem clothing her with capacity to file the suit. The objection was dismissed.
Applying the Mukisa Biscuit test, the court found the issues of the suit land's availability for distribution and alleged contravention of the Civil Procedure Rules were not points of law suitable for a preliminary objection; the distribution question required evidence. The plaintiff's grant ad litem issued on 13th April 2017 in Nairobi High Court Succession Cause No. 387 of 2017 conferred the requisite capacity to sue on behalf of the deceased's estate.
Whether an interlocutory injunction should issue restraining the 2nd defendant from dealing with the suit property
The injunction was granted on the balance of convenience, the court finding that the plaintiff had been in possession through her caretaker and that proved damage to the property and desecration of graves warranted preservation orders pending trial.
Following the Giella principles and Nguruman Ltd, the court held that whether the trust claim or fraud would succeed were matters for trial. There was conflicting evidence on occupation, but the order of Angima J on 28th June 2017 that the caretaker continue in occupation showed the plaintiff was in possession. Given the proved damage to buildings, trees and graves, orders to forestall further damage were in the interest of justice.
Whether the 2nd defendant and her advocate were in contempt of the orders of 28th June 2017
Although the orders were disobeyed and the 2nd defendant and her advocate had knowledge of them through their advocate's presence in court, the plaintiff failed to prove that they personally participated in the acts of contempt to the requisite standard; the contempt prayer was rejected.
The court found the orders were clear and were flagrantly disobeyed on 10th-12th July 2017, and that knowledge was established through the advocate's presence in court (Shimmers Plaza). However, the plaintiff bore the onus of establishing that the two respondents were part of the gang, and the caretaker's and Aunt's evidence was unsworn hearsay; the photographed vehicle registration alone did not prove presence given the size of the gang.
Legal principles established
#- Knowledge of a court order by the advocate of an alleged contemnor suffices for contempt proceedings where the advocate was present in court when the order was made
- The standard of proof in contempt proceedings is higher than proof on a balance of probabilities though almost, but not exactly, beyond reasonable doubt
- An order that a party in occupation continues in occupation is clear and unambiguous; acts inconsistent with the occupier's interests amount to contempt even if not spelt out in the order
- Mere registration of land in the name of a party does not relieve him of his obligation as a trustee (Section 25(2), Land Registration Act)
- A party in occupation of property in dispute is entitled to an injunction where there is a threat of eviction by the other side before the case is heard and determined
Court orders
#- 1.Pending the hearing and determination of the suit, the 2nd defendant by herself, her agents and/or employees are restrained from entering upon or in any manner dealing with the properties comprised in L.R No. MWERUA/BARICHO/700 (and any resultant sub-divisions thereof), 720, 721, 722, 723 and 724 or interfering in any manner whatsoever with the plaintiff's quiet possession thereof
- 2.The suit to be heard and determined within the next twelve (12) months
- 3.The Notice of Motion dated 12th July 2017 (contempt application) is dismissed
- 4.Costs shall be in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land and environment disputes), as transferred to the ELC at Kerugoya by Angima J
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Claire Njeri Githunguri v Edwin Mwenda Githunguri & 3 others [2017] KEELC 522 (KLR)", Case Analysis (2017). ELC Case at Kerugoya (formerly filed at Nyeri; transferred by Angima J on 28th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/522/eng@2017-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.