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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 4092 (KLR)

Njagi Kanampiu v Kellen Nchunguni Riungu & 3 others [2019] KEELC 4092 (KLR)

Environment and Land Court
25 March 2019
PNP. M. Njoroge
1,031 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Once a Kenyan land suit is dismissed and decreed, the losing plaintiff cannot keep using the land, and police can be ordered to enforce title holders' rights.

What this practically means

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Executive summary

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By a Notice of Motion dated 21 February 2019, the 1st and 2nd defendants, Kellen Nchunguni and Francis Kinegeni, sought urgent interlocutory and permanent injunctive relief against the plaintiff, restraining him and his agents, in particular one Gitari Kanampiu, from entering into, cultivating upon or otherwise interfering with LP Nos. MWIMBI/KIRARO/1713 and MWIMBI/KIRARO/1714, registered in the names of the 1st and 2nd applicants respectively. The application was supported by the affidavit of Francis Kinegeni Chabari, sworn with the authority of the 3rd and 4th defendants. He deponed that he purchased parcel 1714 from the 3rd defendant on 16 September 2010, whereupon the plaintiff trespassed and sued him seeking cancellation of his title. That suit went to full hearing and was dismissed with costs on 11 December 2018, with a decree issued and served. Despite this, the plaintiff allegedly continued to cultivate the land, fell indigenous trees and employ poor farming methods causing soil erosion, to the applicants' irreparable damage. The applicants, described as bona fide purchasers for value, complained of trespass and wanton waste during the planting season. Service was effected but the respondent did not appear. The court, per P. M. Njoroge J, held that as there was already a judgment of the court dismissing the plaintiff's claim, and no evidence of an appeal, the plaintiff and his brother had no legal basis for interfering with the suit property. The court allowed prayer 3 (permanent injunction), directed the OCS Chogoria Police Station to implement it, and awarded costs of the application to the applicants, payable by the plaintiff. Judgment delivered at Chuka on 25 March 2019.

Key legal issues

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Whether a plaintiff whose suit for cancellation of title has been dismissed can continue to occupy and cultivate the suit land

Holding

The court held that once the plaintiff's suit was dismissed and a decree issued in favour of the registered proprietors, the plaintiff and his brother had no legal basis to remain on or interfere with the land, justifying a permanent injunction.

Reasoning

The court reasoned that the suit land is registered in the names of the 1st and 2nd applicants, who purchased it from the 3rd and 4th defendants. The plaintiff's claim seeking cancellation of the applicants' titles was heard and dismissed on 11 December 2018 with costs, and a decree was issued and served. There being no evidence of an appeal against that judgment, the plaintiff's continued cultivation and interference with the land was unlawful trespass warranting injunctive protection.

p. 2

Legal principles established

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  • Where a plaintiff's suit seeking cancellation of registered proprietors' titles has been dismissed and no appeal is evident, the plaintiff has no legal basis for continuing in occupation of or interfering with the suit land.

Court orders

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  1. 1.Prayer 3 in the application is allowed
  2. 2.The OCS, Chogoria Police Station is directed to implement order (1) above
  3. 3.Costs of the application to be paid by the plaintiff and awarded to the applicants
Jurisdiction invoked
Inherent powers of the court to grant injunctive relief in a pending suit (no specific constitutional or statutory provision invoked in the judgment)

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, "Njagi Kanampiu v Kellen Nchunguni Riungu & 3 others [2019] KEELC 4092 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4092/eng@2019-03-25

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