Grace Wairimu Githinji & 3 others v Karau Ole Shonge & another [2018] KEELC 4229 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case with probability of success
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
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.
Whether the Applicants would suffer irreparable harm not compensable by damages
Yes — the suit lands are their residence and source of livelihood through farming
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.
Where the balance of convenience lies
In favour of the Applicants, who are currently residing on the suit land
The court found that since the Applicants currently reside on the suit land, maintaining the position pending trial favours them.
Whether a final declaration of adverse possession could be made at the interlocutory stage
No — disputed issues of occupation and possession must go to full trial; only preservation orders were granted
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.
Legal principles established
#- 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
#- 1.Status quo be maintained pending the hearing and determination of this suit
- 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.Costs in the cause
- 4.Parties urged to comply with Order 11 and set the suit down for hearing as soon as possible
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.