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ELCPartially AllowedOriginating Summons dated 30th March 2017 (Embu)· [2018] KEELC 4385 (KLR)

Andrew Ngari Kaumbuthu v Moses Gachoka Njuguna [2018] KEELC 4385 (KLR)

Environment and Land Court
22 February 2018
YAY. M. Angima
1,113 words in judgment
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The bottom line

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An Embu court blocked any sale or transfer of disputed land until trial, holding that a person in possession has a strong enough case to protect.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Embu on a notice of motion dated 30th March 2017 filed alongside an originating summons brought under section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, in which the Applicant claimed to have acquired title to land reference No. Evurore/Nguthi/1112 by adverse possession since 1979. By the motion, he sought an injunction restraining the Respondent from alienating, selling, transferring, charging or otherwise interfering with the suit property pending determination of the suit. The Respondent opposed, contending he bought the property from the Applicant's father in 1984 with vacant possession, that the Applicant only erected illegal structures around 2015, and that he had already contracted to sell the property to ACK Emmanuel Cianthia Secondary School; he regarded the Applicant as a trespasser. The court applied the Giella v Cassman Brown principles. It found that although elements of adverse possession such as the period of possession were disputed, the fact of the Applicant's possession was not denied, establishing a prima facie case with probability of success. Relying on Jane Wanjira Muchira v Wilson Tumbo Thambo and Muiruri v Bank of Baroda, the court held that damages would not adequately compensate given the nature of land disputes and the Applicant's possession. The motion was allowed in terms of prayer 3, with costs in the cause. Ruling delivered at Embu on 22nd February 2018 by Y. M. Angima, J.

Key legal issues

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01

Whether an interlocutory injunction should issue to restrain dealings with land claimed by adverse possession

Holding

Yes - the Applicant demonstrated a prima facie case with probability of success and damages would be inadequate given his possession of the land

Reasoning

The court applied the Giella v Cassman Brown principles. The fact of the Applicant's possession was not denied by the Respondent, satisfying the prima facie case threshold; disputed elements of adverse possession (period of possession, dispossession) are evidentiary matters for trial. Given the nature of the subject matter and the Applicant's possession, damages would not suffice, adopting the Muiruri v Bank of Baroda reasoning. The injunction in prayer 3 was granted.

p. 2

Legal principles established

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  • Where a party is in possession of land, an award of damages will not ordinarily be an adequate remedy for purposes of granting an injunction
  • Possession of the suit property, if undisputed, satisfies the first Giella test of a prima facie case at the interlocutory stage; contested elements of adverse possession are matters for trial

Court orders

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  1. 1.The notice of motion dated 30th March 2017 is allowed in terms of prayer No. 3 thereof - an injunction restraining the Defendant from alienating, selling, taking possession of, leasing, transferring, charging or otherwise interfering with land reference No. Evurore/Nguthi/1112 pending the hearing and determination of the suit
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Civil Procedure Actsections 1A, 3A, 63(c)
  • Civil Procedure RulesOrder 37 Rule 7; Order 51 Rule 1
  • Environment & Land Act 2011section 13

Cases cited (3)

  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Jane Wanjira Muchira Vs Wilson Tumbo Thambo
    [2016] eKLR
  • Muiruri Vs Bank of Baroda (Kenya) Ltd
    2000 KLR 183
Jurisdiction invoked
section 38 of the Limitation of Actions Act; Order 37 Rule 7 of the Civil Procedure Rules; section 13 of the Environment & Land Act 2011; sections 1A, 3A and 63(c) of the Civil Procedure 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, "Andrew Ngari Kaumbuthu v Moses Gachoka Njuguna [2018] KEELC 4385 (KLR)", Case Analysis (2018). Originating Summons dated 30th March 2017 (Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4385/eng@2018-02-22

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