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ELCDismissedNotice of Motion dated 13th February 2017· [2017] KEELC 2599 (KLR)

Zakaria Njogu Kariuki & another v Moses Kuria Thairu & another [2017] KEELC 2599 (KLR)

High Court of Kenya (Environment and Land Division)
28 June 2017
LGL. Gacheru
1,555 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to protect land buyers because the property they purchased was already subject to a pending ownership dispute.

What this practically means

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Executive summary

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The plaintiffs, Zacharia Njogu Kariuki and Samuel Keru Waweru, applied by Notice of Motion dated 13th February 2017 under Section 3A of the Civil Procedure Act for injunctive orders restraining the defendants from selling, entering, trespassing on or otherwise dealing with parcels LR No. Kiganjo/Kiamworia/T.118 and Kiganjo/Gachika/766, an order allowing them to continue occupying the suit premises enforceable by the OCPD Gatundu, and (as canvassed in submissions) withdrawal of a restriction lodged by the 2nd Defendant and alignment of boundaries. They claimed to be registered owners of Kiganjo/Gachika/766 and alleged trespass and an unlawful restriction entered without a hearing. The 1st Respondent, Moses Kuria Thairu, countered that he had lodged the restriction on the footing of ELC No. 890 of 2012 (Milimani), a pending adverse-possession suit against the vendors, that he had been in continuous peaceful occupation of the parcel for over 12 years, and that the applicants purchased with notice of that suit. Guided by the Giella principles as restated in the cited authorities, the court found the applicants had not established a prima facie case with probability of success: they bought from administrators whose title was already under challenge in a pending suit, and whether they acquired good title was a matter for trial. The remaining injunction conditions, being sequential, did not fall for consideration, and the prayers on the restriction and boundary alignment required evidence tested in cross-examination. The application was dismissed entirely with costs in the cause.

Key legal issues

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01

Whether the applicants established a prima facie case with probability of success

Holding

They did not; they bought the suit land from vendors whose title was already under challenge in a pending adverse-possession suit (ELC No. 890 of 2012), so whether they acquired good title is a matter for trial

Reasoning

The applicants produced a certificate of official search showing registration in their names in September 2016. However, at the time of purchase, the respondent had already filed ELC No. 890 of 2012 claiming prescriptive rights by adverse possession over the same parcel. The vendors sold knowing their ownership was challenged. Whether purchasers under such circumstances acquired good title is a question requiring evidence at trial, not determinable on affidavits.

p. 3
02

Whether the remaining Giella principles fall for consideration

Holding

No; the principles are sequential and failure on the first disposes of the application

Reasoning

Relying on Kenya Commercial Bank Ltd v Afraha Education Development Co. Ltd, the court held that the conditions for an interlocutory injunction must be addressed sequentially. Having failed at the first threshold - prima facie case with probability of success - the applicants' application could not proceed to irreparable injury or balance of convenience.

p. 3

Legal principles established

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  • An interim injunction is an exercise of judicial discretion and will not be interfered with unless shown not to have been exercised judicially
  • The conditions for granting an interlocutory injunction must be addressed sequentially, beginning with a prima facie case with probability of success
  • At the interlocutory stage the court should not make definite findings of fact or law on contradicting affidavits

Court orders

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  1. 1.The Plaintiffs/Applicants' Notice of Motion dated 13th February 2017 is dismissed entirely
  2. 2.Costs to be in the cause
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power of the court)

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, "Zakaria Njogu Kariuki & another v Moses Kuria Thairu & another [2017] KEELC 2599 (KLR)", Case Analysis (2017). Notice of Motion dated 13th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2599/eng@2017-06-28

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