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ELCPartially AllowedNotice of motion dated 9th June 2016 in suit concerning land parcel Nthawa/Gitiburi/1533 (Embu ELC)· [2017] KEELC 1069 (KLR)

Lucy Wairimu Njau v Nicholas Nguthi Kivinda & 2 others [2017] KEELC 1069 (KLR)

Environment and Land Court
19 October 2017
YAY.M. Angima
1,197 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Embu court protected a woman living on disputed land until trial, ruling that a title restriction does not pause the 12-year clock for claiming land by adverse possession.

What this practically means

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Executive summary

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By a plaint filed on 9th June 2016, the Plaintiff claimed title to land parcel Nthawa/Gitiburi/1533 (3.6 ha) by adverse possession, asserting occupation since 1975, and sought a declaration that she be registered as absolute proprietor and that the Defendants' title stands extinguished. Together with the plaint she filed a notice of motion seeking a temporary injunction against eviction and an order of inhibition over the suit property, alleging recent eviction threats and attempts to dispose of the land. The Defendants opposed, citing a longstanding clan dispute between the Nditi and Mbuya clans resolved in their favour by the Minister in Civil Appeal No. 1022 of 1985, denying occupation since 1975 or that the occupation was adverse, contending the Plaintiff's husband had been permitted onto the land. They also argued that a restriction registered on the title from 1996 to 4th January 2016 meant time for adverse possession only began running in 2016, and raised a preliminary objection that the suit should have been begun by originating summons. Applying the Giella v Cassman Brown principles, Angima J found a prima facie case with probability of success, held that a registered restriction does not stop time running for adverse possession, found irreparable harm not compensable in damages since the Plaintiff resides on the land, and found the balance of convenience favoured her. The preliminary objection was left undetermined as it was not argued. The motion was allowed in terms of prayers 4 and 5, granting a temporary injunction against eviction and an order of inhibition, with costs in the cause.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

Plaintiff established a prima facie case with a probability of success on her adverse possession claim

Reasoning

It was common ground the Plaintiff was in occupation of the suit property; what was disputed was the acreage, the length of occupation and whether occupation was adverse. Even reckoning time from 1996, she would have at least 12 years' possession. The disputed factual issues could only be conclusively determined at trial, but the material sufficed to show a prima facie case.

p. 3
02

Irreparable harm and balance of convenience

Holding

Eviction before trial would cause irreparable harm not compensable in damages, and the balance of convenience favours the Plaintiff in occupation

Reasoning

The Plaintiff resides on the land, so eviction before conclusion of the suit may cause her serious damage that monetary damages cannot remedy. In any event, being in occupation, refusal of the injunction would cause her greater hardship than a denial would cause the Defendants, satisfying the third Giella principle.

p. 3
03

Effect of a registered restriction on the running of time for adverse possession

Holding

A restriction on the title does not suspend the running of time for adverse possession

Reasoning

The Defendants argued that a restriction placed on the suit property upon their 1996 registration until 4th January 2016 meant time should run from the latter date. The court rejected this, noting no authority was cited for the proposition, so time ran from 1996 and the Plaintiff could establish over 12 years' possession.

p. 2

Legal principles established

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  • Time for adverse possession does not stop running merely because a restriction or prohibitory order is registered against the suit property
  • The court has a duty to preserve property in dispute pending determination of the suit

Court orders

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  1. 1.Temporary injunction restraining the Defendants, their agents and/or servants from forcefully evicting the Plaintiff and her family members from land parcel No. Nthawa/Gitiburi/1533 pending the hearing and determination of the main suit
  2. 2.Order of inhibition issued against land parcel No. Nthawa/Gitiburi/1533 pending the hearing and determination of the main suit
  3. 3.Costs of the application to be in the cause

Authorities

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Cases cited (2)

  • Giella V. Cassman Brown & Co Ltd
    [1973] EA 358
  • Shivabhai Patel V. Manibhai Patel
    [1959] EA 907
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land (not expressly cited in the ruling)

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, "Lucy Wairimu Njau v Nicholas Nguthi Kivinda & 2 others [2017] KEELC 1069 (KLR)", Case Analysis (2017). Notice of motion dated 9th June 2016 in suit concerning land parcel Nthawa/Gitiburi/1533 (Embu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1069/eng@2017-10-19

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