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ELCDismissedNotice of Motion dated 27th March 2017 arising from a Plaint dated 27th March 2017· [2018] KEELC 2852 (KLR)

Kagai Waruingi v Alice Muthoni Waruingi & another [2018] KEELC 2852 (KLR)

Environment and Land Court (delivered at Thika)
22 June 2018
LGL. Gacheru
2,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A title deed alone did not win an injunction: Kenyan courts will preserve the status quo where family land is held under a disputed customary trust.

What this practically means

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Executive summary

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Kagai Waruingi, registered proprietor of LR Kiambaa/Thimbigua/1776, sued his blood sisters for permanent injunction and eviction, alleging trespass and illegal structures erected from September 2016. Simultaneously he sought a temporary injunction. The Respondents, in a Replying Affidavit dated 12th July 2017, averred that the parcel was allocated to their mother, Margaret Wambui Waruingi - one of four wives of Paul Waruingi Kagai - and that the Applicant was registered as trustee for that house; they had lived on the land all their lives. The Applicant denied any trust, asserting the land was transferred to him by his father in 1983. Applying the Giella v Cassman Brown principles, the Court (L. Gacheru, J) found no prima facie case: the allegation of customary trust, an overriding interest under section 30(g) of the repealed Registered Land Act, was a disputed factual matter reserved for trial. Irreparable loss was not shown since the Respondents had always occupied the land and damages would suffice; the balance of convenience favoured maintaining the status quo of the Respondents' occupation. The application was dismissed entirely with costs in the cause, parties directed to comply with Order 11 within 45 days, and the matter ordered transferred to the Kiambu Chief Magistrate's Court for hearing and determination.

Key legal issues

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01

Prima facie case with probability of success

Holding

Not established - the registered title is countered by an unresolved allegation of customary trust

Reasoning

Although the Applicant holds a title deed issued in 1983, the Respondents allege the registration was in trust for the house of Margaret Wambui Waruingi. The existence of trust is a disputed factual issue requiring viva voce evidence and cross-examination at trial, and cannot be resolved on affidavit evidence at the interlocutory stage. The Respondents' long undisputed occupation further undermines the claim of trespass.

p. 3
02

Irreparable loss

Holding

Not established - damages would be an adequate remedy

Reasoning

The Applicant did not dispute that the Respondents have lived on the land all their lives, so their continued stay pending trial causes no loss. If at trial the Respondents are found not justified in remaining, the Applicant can be adequately compensated by an award of damages, per Wairimu Mureithi v City Council of Nairobi.

p. 3
03

Balance of convenience

Holding

Tilts in favour of the Respondents; status quo of occupation to be maintained

Reasoning

The Court found it was not in doubt, but if it were, convenience favours the Respondents who have always used the land. The appropriate order is maintenance of status quo - the Respondents remaining in occupation of their respective portions - pending determination of the trust issue at trial. If the Applicant succeeds, eviction can then issue.

p. 3

Legal principles established

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  • The Giella v Cassman Brown principles govern interim injunctions: prima facie case, irreparable harm, balance of convenience
  • Customary trust is an overriding interest defeating an otherwise absolute title under the repealed Registered Land Act
  • Where there are serious conflicts of facts, the court should maintain the status quo until trial

Court orders

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  1. 1.The Notice of Motion dated 27th March 2017 is dismissed entirely with costs being in the cause
  2. 2.Parties to prepare the suit for hearing by complying with Order 11 within 45 days from the date of the ruling
  3. 3.The matter to be transferred to Kiambu Chief Magistrate Court forthwith for hearing and determination

Authorities

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Legislation

  • Land Registration Act2012
  • Registered Land Act (repealed)Section 30(g)
  • Civil Procedure RulesOrder 11

Cases cited (6)

  • Agip (K) Ltd vs Maheshchandra Himatlal Vora & 2 Others
    Civil Appeal No.213 of 1999
  • Edwin Kamau Muniu vs Barclays Bank of Kenya Ltd
    Nairobi HCCC No. 1118 of 2002
  • Giella vs Cassman Brown & Co. Ltd
    1973, EA 358
  • Mrao vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Wairimu Mureithi vs City Council of Nairobi
    Civil Appeal No.5 of 1979 (1981) KLR 322
  • Virginia Edith Wambui vs Joash Ochieng Ougo
    Civil Appeal No.3 of 1987 (1987) eKLR
Jurisdiction invoked
Original civil jurisdiction over a land claim and interlocutory application (Plaint and Notice of Motion under the Land Registration Act 2012; Land Registration Act and repealed Registered Land Act cited)

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, "Kagai Waruingi v Alice Muthoni Waruingi & another [2018] KEELC 2852 (KLR)", Case Analysis (2018). Notice of Motion dated 27th March 2017 arising from a Plaint dated 27th March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2852/eng@2018-06-22

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