Catherine Muthoni Gathee v Fridah Karimi [2017] KEELC 923 (KLR)
The bottom line
#A Kenyan landowner with a valid title still lost her injunction bid because the squatter was already living on the land and eviction, not an injunction, was the right remedy.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case with probability of success
The Plaintiff, as current registered owner of the suit property, established a prima facie case with a probability of success
The court found the Plaintiff is the current registered owner of Mbeti/Kiamuringa/3899 and, as registered proprietor, is entitled to enjoy all the legal rights of a proprietor. On the title documents annexed to her supporting affidavit, the first Giella principle was satisfied. The court noted both parties bought from the same vendor, but the Plaintiff moved expeditiously and obtained her title in 2015 while the Defendant obtained none.
Adequacy of damages / irreparable harm
The Plaintiff failed to demonstrate irreparable harm that could not be adequately compensated by damages
Neither party addressed the court on the second Giella principle. The court held that although the subject matter is land, that alone does not establish irreparable harm. There was no evidence on record showing the Plaintiff would suffer harm incapable of monetary compensation if the injunction were refused.
Futility of injunction where the Defendant is already in possession
Injunctive relief should not issue where the person to be restrained is already in possession; eviction, not a prohibitory injunction, is the proper remedy
The Plaintiff conceded the Defendant was already in occupation, which was precisely why the Plaintiff could not occupy, cultivate or utilize the land. Issuing an order restraining the Defendant from entering or interfering with the property would be futile. The court exercised its discretion to refuse the injunction on this balance-of-convenience basis.
Legal principles established
#- The mere fact that the subject matter of a suit is land does not in itself establish irreparable harm or damage
- A prohibitory injunction is futile against a party already in possession; the appropriate remedy in such circumstances is an eviction order
- A registered proprietor is entitled to enjoy all the legal rights of a proprietor and, on the evidence of registration, establishes a prima facie case
Court orders
#- 1.The Plaintiff's notice of motion dated 20th July 2017 is dismissed with costs in the cause
- Jurisdiction invoked
- Original civil jurisdiction over land disputes (Environment and Land Court); suit commenced by plaint dated 20th July 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Muthoni Gathee v Fridah Karimi [2017] KEELC 923 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/923/eng@2017-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.