Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 28.08.2017 in the main suit over Land Parcel No. LOC.1/THUITA/160· [2018] KEELC 3589 (KLR)

Isaac Murigi Muiruri (Suing as the administrator of the estate of Muiruri Njiri (Deceased) v Francis Karume & 2 others [2018] KEELC 3589 (KLR)

Environment and Land Court
19 April 2018
JKJ.G. KEMEI
1,808 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court froze all dealings on disputed land, holding that long, unchallenged possession can protect a buyer even against a registered title.

What this practically means

#

Executive summary

#
The Plaintiff, suing as administrator of the estate of Muiruri Njiri (deceased), moved the Environment and Land Court at Murang'a by Notice of Motion dated 28.08.2017 seeking interlocutory injunctions restraining the Defendants from trespassing on, disposing of, wasting, transferring, alienating, charging or selling Land Parcel No. LOC.1/THUITA/160 pending the hearing of the application and the main suit, plus revocation of the grant in Thika Magistrates' Court Succession Cause No. 419 of 2014. The Plaintiff claimed the deceased had purchased the suit land from Wanganga Wangombe, the original registered owner, producing a sale agreement dated 24.07.1990 and photographs showing long occupation. The Defendants, administrators of Wanganga Wangombe's estate, denied the sale and relied on their indefeasible title after transferring the land to the 3rd Defendant pursuant to a confirmed grant of 07.12.2015. Applying the Giella v Cassman Brown conditions and the Mrao definition of a prima facie case, the court held that although the land was registered in the 3rd Defendant's name under section 25 of the Land Registration Act, section 28 preserves overriding interests, including possessory rights. The uncontroverted sale agreement and evidence of long occupation established a prima facie case with a probability of success, and damages would not adequately compensate in a land dispute. The court granted the injunction pending trial and ordered an inhibition against all dealings on the suit land, with each party bearing their own costs of the application. The prayer for revocation of the succession grant was not granted at the interlocutory stage.

Key legal issues

#
01

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

Holding

Yes. Although not registered as owner, the Applicant demonstrated rights accrued by long possession, supported by a sale agreement dated 24.7.1990 and photographs of long occupation, which were uncontroverted.

Reasoning

The court applied the Giella v Cassman Brown test and the Mrao definition of a prima facie case. Section 25 of the Land Registration Act vests rights in the registered owner, but section 28 preserves overriding interests, including possessory rights under section 28(h). The Applicant's sale agreement and evidence of occupation were not controverted; whether his claim ultimately succeeds is a matter for trial.

p. 2
02

Whether damages would be an adequate remedy

Holding

No. The court associated itself with Muiruri v Bank of Baroda (Kenya) Limited that land disputes evoke emotion and damages are rarely adequate.

Reasoning

Relying on the Court of Appeal in Muiruri v Bank of Baroda (Kenya) Limited, the court held that except in very clear cases, damages cannot adequately compensate for loss of land, satisfying the second Giella condition for an interlocutory injunction.

p. 3

Legal principles established

#
  • Registration under section 25 of the Land Registration Act confers absolute ownership but does not relieve the proprietor from overriding interests under section 28, including possessory rights.
  • A purchaser in possession of land who is not registered may still demonstrate a prima facie case based on rights accrued by possession.
  • In land disputes damages will rarely be an adequate remedy.

Court orders

#
  1. 1.An injunction prohibiting the Defendants from trespassing on, disposing of, wasting, transferring, alienating, charging and/or selling any portion or all of Land Reference No. LOC.1/THUITA/160 without involving the Plaintiff/Applicant pending the hearing and determination of the main suit
  2. 2.An inhibition to be registered on the suit land inhibiting registration of all dealings on the suit land until the determination of the suit and/or further orders of the Court
  3. 3.Each party to bear the costs of the application

Authorities

#

Legislation

  • Land Registration Actsection 25
  • Land Registration Actsection 28
  • Civil Procedure Actsection 63(e)
  • Civil Procedure RulesOrder 40 rule 1

Cases cited (4)

  • Giella vs Cassman Brown and Co. Ltd
    (1973) EA 358
  • Mrao vs First American Bank of Kenya Ltd & Two Others
    C.A. No. 39 OF 2002 (2003 EKLR)
  • Nguruman Limited Vs Jan Bonde Nielsen & 2 others
    EKLR
  • Muiruri Vs Bank of Baroda (Kenya) Limited
    1 KLR 183
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes, with interlocutory relief under section 63(e) of the Civil Procedure Act and Order 40 rule 1

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Isaac Murigi Muiruri (Suing as the administrator of the estate of Muiruri Njiri (Deceased) v Francis Karume & 2 others [2018] KEELC 3589 (KLR)", Case Analysis (2018). Notice of Motion dated 28.08.2017 in the main suit over Land Parcel No. LOC.1/THUITA/160. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3589/eng@2018-04-19

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