Francis Kuria Kariuki & 3 others v David Nganga Kariuki & another [2017] KEELC 2727 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that registered land owners can block relatives who take over property without evidence supporting their ownership claims.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
The Plaintiffs, as registered owners of the suit property following the confirmed Grant, established a prima facie case with a probability of success against the Defendants.
The Plaintiffs were registered proprietors pursuant to the Certificate of Confirmation of Grant dated 3rd July 2012 and were entitled to immediate possession. The Defendants' claim that the transfer was fraudulent and made without beneficiaries' consent was unsupported by any evidence and had already been considered and rejected by Muchelule J in the Succession Cause on 29th January 2016.
Irreparable injury
The Plaintiffs would suffer irreparable injury not compensable in damages if the injunction was withheld, as they would continue to be denied access to and possession of the property.
The Defendants had invaded the property, evicted the Plaintiffs' tenants, rented out housing units to their own tenants and taken over management of the building. Continued exclusion would cause unquantifiable loss for denial of access to their property.
Trespass
The Defendants were trespassers since they were not owners and their entry was not authorised by the Plaintiffs.
The Defendants did not deny the allegations in the Plaintiffs' affidavit in support, including forceful eviction of tenants and taking over management. Their claim of entitlement, including occupation of rooms during the deceased's lifetime, could not outweigh the Plaintiffs' registered title.
Legal principles established
#- Allegations of fraud must be proved by evidence; bare allegations placed before the court without proof fail.
- A registered proprietor of land is entitled to immediate possession and protection of proprietary rights against unauthorised entrants who are trespassers.
Court orders
#- 1.The Notice of Motion dated 28th September 2016 was allowed in terms of prayer 3 thereof (temporary injunction restraining the Defendants from renting out, collecting rent, managing, damaging, wasting and/or interfering with the suit property and the buildings thereon pending the hearing and determination of the suit)
- 2.The Plaintiffs shall have the costs of the application
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property, L.R No. Ongata Rongai Township/59
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Kuria Kariuki & 3 others v David Nganga Kariuki & another [2017] KEELC 2727 (KLR)", Case Analysis (2017). Notice of Motion dated 28th September 2016 in the Plaintiffs' suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2727/eng@2017-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.