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ELCPartially AllowedELC Case (Kajiado) — Notice of Motion dated 27th June 2017· [2018] KEELC 4229 (KLR)

Grace Wairimu Githinji & 3 others v Karau Ole Shonge & another [2018] KEELC 4229 (KLR)

Environment and Land Court
13 February 2018
2,007 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Environment and Land Court protected long-time occupants of disputed land with a status quo and inhibition order, but delayed a final decision until full trial.

What this practically means

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Executive summary

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This was a Notice of Motion dated 27 June 2017 by Grace Wairimu Githinji and Njenga Githinji, brought under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 40 Rules 1 and 2 of the Civil Procedure Rules and section 68(1) of the Land Registration Act, seeking injunctive relief restraining the Respondents from evicting them from, subdividing, selling or transferring land parcels ENKARIAK/RONGENA/667 and 668, on which they claimed to have resided for over twelve years and to be entitled to ownership by adverse possession. They relied on a 1978 Decree (Nairobi HCCC No. 1991 of 1978) in favour of their late father, Githinji Karanja, never executed, plus graves, permanent structures and cultivation on the land. The 2nd Respondent, Grace Lucy Wanjiru, registered proprietor of parcel 668 since a 1978 purchase, opposed the application, contending it was defective, that the Applicants never occupied her land until 2011, that the land was charged to the Ol Kejuado Trade Development Joint Loan Board from 1981 to 2016, and that a 2016 local administration process had secured the Applicants' agreement to vacate. Applying the Giella v Cassman Brown principles, Christine Ochieng J found the Applicants had established a prima facie case with probability of success, would suffer irreparable harm not compensable in damages, and that the balance of convenience favoured them; but because the adverse possession claim was contested, she declined the injunction as sought and instead ordered maintenance of status quo and registration of an inhibition against both parcels pending trial, with costs in the cause.

Key legal issues

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01

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

Holding

Yes — they showed long occupation, burial of parents on the land, and a 1978 Decree in favour of their late father over the suit lands

Reasoning

The court noted the Applicants' averments of over 12 years' occupation, cultivation, permanent structures and graves on the land, supported by a Decree from Nairobi HCCC No. 1991 of 1978 in favour of their late father which was neither appealed nor reviewed. The 2nd Respondent's denials were disputed factual matters for trial.

p. 3
02

Whether the Applicants would suffer irreparable harm not compensable by damages

Holding

Yes — the suit lands are their residence and source of livelihood through farming

Reasoning

The court found the Applicants have been residing on and farming the suit lands, which is their source of livelihood, and eviction would cause harm not adequately compensable by damages pending determination of the suit.

p. 4
03

Where the balance of convenience lies

Holding

In favour of the Applicants, who are currently residing on the suit land

Reasoning

The court found that since the Applicants currently reside on the suit land, maintaining the position pending trial favours them.

p. 4
04

Whether a final declaration of adverse possession could be made at the interlocutory stage

Holding

No — disputed issues of occupation and possession must go to full trial; only preservation orders were granted

Reasoning

Because the Applicants claim adverse possession while the 2nd Respondent insists they do not reside on the land, the court held these contested questions require a full trial and accordingly declined the injunction as framed, substituting status quo and inhibition orders.

p. 4

Legal principles established

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  • The classic test for granting a temporary injunction is a prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • Adverse possession requires possession inconsistent with the owner's title, involving denial of the owner's title in one form or another

Court orders

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  1. 1.Status quo be maintained pending the hearing and determination of this suit
  2. 2.An inhibition order be registered by the Land Registrar Kajiado against land parcels ENKARIAK/RONGENA/667 and ENKARIAK/RONGENA/668, of any dealings, lease or charge pending the hearing and determination of the suit
  3. 3.Costs in the cause
  4. 4.Parties urged to comply with Order 11 and set the suit down for hearing as soon as possible

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Land Registration ActSection 68(1)
  • Limitation of Actions ActSection 38

Cases cited (5)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Symon Gatutu Kimamo & 587 others V. East Africa Portland Cement Co. Ltd
    (2011) eKLR
  • James Maina Gatundu Vs Francis Mwangi Waititu
    (2017) eKLR
  • Ravindranath Dahybhai Bhagat Vs Hamisi Harod & 5 others
    (2014) eKLR
  • Mutiso v Mutiso
    [1998] LLR 3268 (CAK)
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 40 Rules 1 and 2 of the Civil Procedure Rules; Section 68(1) of the Land Registration 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, "Grace Wairimu Githinji & 3 others v Karau Ole Shonge & another [2018] KEELC 4229 (KLR)", Case Analysis (2018). ELC Case (Kajiado) — Notice of Motion dated 27th June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4229/eng@2018-02-13

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