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ELCPartially AllowedNot stated in judgment (originating summons seeking adverse possession)· [2018] KEELC 436 (KLR)

Margaret Rwamba Njagi v Joseph Mugo Ngai & 2 others [2018] KEELC 436 (KLR)

High Court of Kenya
20 December 2018
1,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed landowners can get injunctions against adverse possession claimants even without filing a counterclaim.

What this practically means

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Executive summary

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This is a ruling of the High Court at Embu (Angima J) dated 20th December 2018 on a notice of motion dated 24th September 2018 by the 2nd Defendant, brought under section 63(e) of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, seeking to restrain the Plaintiff from entering, erecting new structures on, or interfering with the 2nd Defendant's use of Title No. Gaturi/Weru/10399 pending the hearing and determination of a suit in which the Plaintiff claims adverse possession by originating summons. The Plaintiff opposed the application, relying on a consent order of 1st February 2016 under which she and her family were to continue occupying the disputed parcels and the Defendants were restrained from interfering with her occupation. She argued that the 2nd Defendant, having filed no counterclaim, had no basis for seeking an injunction, and that she was merely constructing a pit latrine. The court found from photographic evidence that the plaintiff was in fact erecting new structures, partly in violation of interim orders issued on 24th September 2018, and noted she had previously been convicted of contempt and fined Kshs 30,000. The court held that a defendant who has entered appearance and filed a defence claiming an interest in disputed property may obtain an interlocutory injunction even without a counterclaim, applying Njoroge Kironyo v Koronyo Njoroge. The motion was allowed in terms of orders 3 and 4, with costs in the cause.

Key legal issues

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01

Whether a defendant without a counterclaim may obtain an interlocutory injunction against a plaintiff

Holding

Yes; the court's inherent jurisdiction under section 3A of the Civil Procedure Act, as informed by the Judicature Act, permits an interlocutory injunction at the instance of a defendant who has filed a defence claiming an interest in the disputed property.

Reasoning

Relying on Harris J's decision in Njoroge Kironyo v Koronyo Njoroge, the court reasoned that the omission of an express provision in Order XXXIX for injunctions in favour of defendants does not withhold the power by implication, since section 3(1) of the Judicature Act confers the jurisdiction of the English High Court, and section 3A preserves inherent power. As a matter of principle, a defendant who has entered appearance unconditionally and claimed an interest in the property deserves the same interim protection as a plaintiff.

p. 2
02

Whether the suit property should be preserved pending determination of the adverse possession claim

Holding

Yes; the property should be preserved in its current state to prevent the plaintiff from erecting additional structures to bolster a yet-to-be-determined adverse possession claim.

Reasoning

The court found from the photographs and record that the plaintiff had commenced new construction on the suit property, partly in violation of interim orders issued on 24th September 2018, and had previously been convicted of contempt and fined. Her claim that she was only building a pit latrine was a mislead. Preservation was necessary to prevent her from 'stealing a match' on the 2nd Defendant.

p. 2

Legal principles established

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  • A defendant who has submitted to the jurisdiction and filed a defence claiming an interest in disputed property is entitled, in a proper case, to interim injunctive protection even without a counterclaim.

Court orders

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  1. 1.The 2nd Defendant's notice of motion dated 24th September 2018 allowed in terms of order Nos. 3 and 4 thereof
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)section 63(e)
  • Civil Procedure Act (Cap 21)section 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Civil Procedure RulesOrder XXXIX
  • Judicature Actsection 3(1)

Cases cited (2)

  • Njoroge Kironyo & Others Vs Koronyo Njoroge
    [1976 – 80] 1 KLR 132
  • Sargant Vs Read
    (1876) 1 Ch D 600
Jurisdiction invoked
Section 63(e) of the Civil Procedure Act (Cap 21) and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules; inherent jurisdiction under section 3A of the Civil Procedure Act via the Judicature Act

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, "Margaret Rwamba Njagi v Joseph Mugo Ngai & 2 others [2018] KEELC 436 (KLR)", Case Analysis (2018). Not stated in judgment (originating summons seeking adverse possession). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/436/eng@2018-12-20

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