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ELCAllowedNot stated in the judgment as provided· [2018] KEELC 2920 (KLR)

Jacinta Wambui Waititu v Ruth Wachuka Irungu [2018] KEELC 2920 (KLR)

Environment and Land Court
19 June 2018
MOM. C. Oundo
1,122 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 confirmed that a registered landowner can stop trespassers through an injunction, even when the other side never shows up to defend.

What this practically means

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Executive summary

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This was an ex parte application for an interlocutory injunction brought by the Plaintiff, Jacinta Wambui Waititu, by Notice of Motion dated 12th May 2017 under Section 3A of the Civil Procedure Act and Order 40 Rules 1, 2, 4 and 51 of the Civil Procedure Rules. She sought to restrain the Defendant from entering upon, trespassing on, cultivating or in any manner interfering with her possession of the suit property, Marmanet North Rumuruti Block 2/4517 (Ndururumo). The Plaintiff claimed to be the registered proprietor holding an indefeasible title, the land having been purchased in 1996, registered in her late husband's name by consent in accordance with Kikuyu custom, and reissued to her after his death in 2009. The Defendant was served with summons and pleadings but neither entered appearance nor filed any response, and the application was heard ex parte after the court was satisfied that service had been effected. Despite the application being undefended, the court held that the burden remained on the Plaintiff to satisfy the Giella v Cassman Brown conditions. Applying sections 24(a), 25(1) and 26(1) of the Land Registration Act and the Court of Appeal decision in Abel Salim v Okongo, the court found that the Plaintiff had established a prima facie case with a probability of success and that the balance of convenience favoured her. The application was allowed with costs; the court also directed compliance with Order 11 within 21 days and transferred the case to the Chief Magistrate's court for hearing and determination.

Key legal issues

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01

Whether an interlocutory injunction should issue to protect a registered proprietor's possession of land against alleged trespass

Holding

Yes - the Plaintiff, as registered proprietor, established a prima facie case with probability of success and the balance of convenience favoured the injunction

Reasoning

The Plaintiff held an indefeasible title to the suit property, first registered in her husband's name in 1996 and reissued to her in 2012 after his demise. Sections 24(a), 25(1) and 26(1) of the Land Registration Act protect the rights of a registered proprietor. The Defendant was served but did not enter appearance or respond. Applying the Giella v Cassman Brown conditions and Abel Salim v Okongo, the court found a prima facie case and the balance of convenience tilted in the Plaintiff's favour.

p. 2
02

Burden of proof on an undefended application

Holding

The burden remains on the applicant to prove the case even where the application is undefended

Reasoning

Although the Defendant failed to enter appearance or file a response despite proper service, the court did not grant the injunction merely by default. It expressly noted that the Plaintiff still had to satisfy the Giella conditions and proceeded to evaluate the evidence, including the title deeds and supporting documents, before allowing the application.

p. 1

Legal principles established

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  • The conditions for the grant of an interlocutory injunction are those set out in Giella v Cassman Brown & Co. Ltd
  • Even in an undefended application, the applicant retains the burden of establishing the Giella conditions
  • Rights of a registered proprietor of land are protected under the Land Registration Act

Court orders

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  1. 1.Injunction restraining the Defendant, her servants, agents, assignees or persons claiming through her from entering upon, trespassing on, cultivating, deriving benefits from, using, developing, constructing on or in any manner interfering with the Plaintiff's possession of Marmanet North Rumuruti Block 2/4517 (Ndururumo) pending the hearing and determination of the suit
  2. 2.Application dated 12th May 2017 allowed with costs
  3. 3.Parties directed to comply with the provisions of Order 11 Civil Procedure Rules within 21 days upon delivery of the ruling
  4. 4.Case transferred to the Chief Magistrate's court for hearing and determination

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2, 4 and 51
  • Civil Procedure RulesOrder 11
  • Land Registration Act No. 3 of 2012Section 24(a)
  • Land Registration Act No. 3 of 2012Section 25(1)
  • Land Registration Act No. 3 of 2012Section 26(1)

Cases cited (2)

  • Giella vs Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Abel Salim & Others -v- Okongo & Others
    [1976] KLR 42
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Section 3A of the Civil Procedure Act and Order 40 Rules 1, 2, 4 and 51 of the Civil Procedure Rules

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, "Jacinta Wambui Waititu v Ruth Wachuka Irungu [2018] KEELC 2920 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2920/eng@2018-06-19

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