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ELCDismissedEmbu ELC Originating Summons (with Notice of Motion dated 6th September 2017)· [2018] KEELC 3110 (KLR)

Ibara Ngari & another Ibara v Lucas Mwaniki Mari [2018] KEELC 3110 (KLR)

Environment and Land Court
24 May 2018
1,754 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The 1st and 2nd Plaintiffs filed an originating summons under Order 37 of the Civil Procedure Rules, sections 37 and 38 of the Limitation of Actions Act and section 28(h) of the Land Registration Act 2012 seeking to be registered as absolute proprietors of Embu/Gangara/3299 by adverse possession and a declaration that the Defendant's title stood extinguished. Simultaneously they sought interim relief: an injunction restraining the Defendant from evicting them and an inhibition against dealings with the parcel. The Defendant, who bought the land in 2015 from the vendor of the parent parcel Embu/Gangara/1878, countered that the Plaintiffs owned the neighbouring parcel 3301, shared a common boundary, and had encroached on the northern part of parcel 3299. The vendor's supporting affidavit confirmed the separate sales in 2014 and 2015 and exhibited mutation forms. Angima J applied the Giella v Cassman Brown principles and held that the Plaintiffs had not demonstrated a prima facie case: the 1995 sale agreement was vague as to acreage and parcel, possession on full payment was contemplated, there was no proof of possession or development of parcel 3299, and the claim of 22 years' occupation with the Defendant's knowledge was improbable since the Defendant bought the land only in 2015. The court further found the Plaintiffs guilty of material non-disclosure at the ex-parte stage, citing Owners of Motor Vessel 'Lillian S' v Caltex Oil, and held this disentitled them to equitable relief regardless of merits. The notice of motion dated 6th September 2017 was dismissed with costs and the interim orders discharged on 24th May 2018.

Key legal issues

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01

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

Holding

They did not; the claimed 1995 purchase agreement was vague and the claim of 22 years' possession was improbable given the Defendant bought the land in 2015

Reasoning

The sale agreement did not specify the acreage or particular parcel, did not provide for possession pending completion, and there was no evidence the purchase price was paid in full. The claim of 22 years' occupation with the Defendant's full knowledge was untenable because the Defendant only purchased the suit property in 2015. No photographs or expert reports supported the alleged possession and development, and the vendor denied the Plaintiffs' claims.

p. 2
02

Whether the Plaintiffs' non-disclosure at the ex-parte stage disentitled them to equitable relief

Holding

Yes; they did not make full and faithful disclosure of material facts, creating a false impression of the Defendant as an absentee owner

Reasoning

The Plaintiffs obtained ex-parte interim orders without disclosing that both parties had bought separate parcels from the same vendor and shared a common boundary, creating a false impression that the Defendant was an absentee landowner suddenly threatening eviction. Relying on Owners of Motor Vessel 'Lillian S' v Caltex Oil, the court held that material non-disclosure disentitles a party to an equitable remedy regardless of the merits.

p. 2

Legal principles established

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  • The principles for the grant of an interlocutory injunction in Kenya are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable damage not compensable by damages, and balance of convenience if in doubt
  • A party seeking an equitable remedy, especially ex-parte, must make full and faithful disclosure of all material facts; material non-disclosure disentitles the party regardless of merits

Court orders

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  1. 1.The Plaintiffs' notice of motion dated 6th September 2017 is dismissed with costs
  2. 2.The interim orders in place are discharged
  3. 3.The prayer for an order of inhibition is declined

Authorities

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Legislation

  • Civil Procedure RulesOrder 37
  • Limitation of Actions Act (Cap 22)sections 37 and 38
  • Land Registration Act 2012section 28(h)
  • Land Registration Act, 2012section 28(1)
  • Civil Procedure RulesOrder 51 Rule 10
  • Civil Procedure Act (Cap 21)section 3A

Cases cited (3)

  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Owners of Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Reg Vs Kesington Income Tax Commissioners ex-parte Princess Edmund de Polgnac
    (1917 1 KB 486)
Jurisdiction invoked
Order 37 of the Civil Procedure Rules, sections 37 and 38 of the Limitation of Actions Act (Cap 22) and section 28(h) of the Land Registration Act 2012; interim relief under section 28(1) of the Land Registration Act, 2012, Order 51 Rule 10 Civil Procedure Rules and section 3A of the Civil Procedure Act (Cap 21)

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, "Ibara Ngari & another Ibara v Lucas Mwaniki Mari [2018] KEELC 3110 (KLR)", Case Analysis (2018). Embu ELC Originating Summons (with Notice of Motion dated 6th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3110/eng@2018-05-24

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