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ELCPartially AllowedNot stated in the judgment (interim application in a suit over land parcel No. KIINE/RUIRU/29; Notice of Motion dated 21st July 2020)· [2020] KEELC 66 (KLR)

James Maina Macharia v Irene Njeri Maina & 4 others [2020] KEELC 66 (KLR)

Environment and Land Court
23 October 2020
ECE.C. Cherono
1,587 words in judgment
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The bottom line

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A Kenyan court protected a family's land occupation by confirming an injunction after the other side fenced the disputed land while the case was ongoing.

What this practically means

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Executive summary

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The plaintiff, suing as a family member claiming a trust over land parcel No. KIINE/RUIRU/29 measuring about 3.4 acres, brought a Notice of Motion dated 21st July 2020 under Section 3A of the Civil Procedure Act and Order 40 Rules 1 & 2 of the Civil Procedure Rules seeking temporary injunctions restraining the defendant, the registered legal representative of the estate through which the land was transmitted, from interfering with his occupation, plus an order for removal of a barbed wire fence erected round his compound. The plaintiff averred that his late brother was registered as owner of the land in trust for the two sons during consolidation and adjudication, that both families have lived on the land since, and that after the brother's death the defendant was registered as owner through a succession cause, subject to overriding interests under Section 28 of the Land Registration Act. He contended that a trust claim cannot be determined in a succession matter. The respondent opposed, maintaining that the status quo was that her family exclusively utilized the land except a small portion occupied by the plaintiff, and that it was the plaintiff disturbing the status quo; she admitted fencing the land after consulting Nyumba kumi elders. Applying the Giella v Cassman Brown principles and the prima facie case definition in Mrao Ltd, the court found the defendant's admitted fencing during the pendency of the suit raised questions about her conduct and established a prima facie case. The court confirmed the temporary injunction issued on 28th July 2020 pending the hearing and determination of the suit, with costs in the cause. The ruling was read and delivered at Kerugoya on 23rd October 2020 by E.C. Cherono, ELC Judge.

Key legal issues

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01

Whether the applicant established a prima facie case for a temporary injunction over land parcel No. KIINE/RUIRU/29

Holding

Yes - the applicant, who seeks a determination of trust and is in occupation, established a prima facie case; the defendant's admitted fencing of the suit land during the pendency of the suit raised questions about her conduct

Reasoning

The court applied the Giella v Cassman Brown principles and the prima facie case definition in Mrao Ltd v First American Bank. The plaintiff claims a trust entitling him to half of the suit land and has been in occupation. The defendant admitted fencing part of the land during the pendency of the suit after consulting Nyumba kumi elders, which raised questions about her conduct and demonstrated an apparent interference with the plaintiff's rights pending trial.

p. 3
02

Whether the interim temporary injunction issued on 28th July 2020 should be confirmed

Holding

Confirmed pending the hearing and determination of the suit

Reasoning

Having found a prima facie case on the Giella test, the court held the application merited. The injunction first issued on 28th July 2020 was confirmed to preserve the status quo pending hearing and determination of the suit. The court reasoned that the applicant need not demonstrate certain success, only an apparently infringed right, and that the fencing during the pendency of the suit justified preservation of the status quo.

p. 3

Legal principles established

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  • A prima facie case in a civil application is a genuine and arguable case showing an apparently infringed right calling for explanation or rebuttal
  • Success at trial is immaterial to an interlocutory injunction provided an apparently infringed right is shown on the material presented

Court orders

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  1. 1.The temporary injunction orders issued in the first instance on 28th July 2020 are confirmed pending the hearing and determination of the suit
  2. 2.The defendant, her servants, agents, relatives and anybody claiming through her are restrained from interfering with the plaintiff's occupation of land parcel No. KIINE/RUIRU/29 pending hearing and determination of the suit
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 Rules 1 & 2
  • Land Registration ActSection 28

Cases cited (6)

  • Giella Vs Cassman Brown Company Ltd
    (1973) E.A.358
  • Cyanamid Co. Vs Ethicom Limited
    (1975) A.A.E.R 504
  • Paul Gitonga Wanjau Vs Gathuthi Tea Factory Company Ltd & 2 others
    (2016) eKLR
  • R.J.R. Macdonald Vs Canada (Attorney General)
  • Mrao Ltd Vs First American Bank of Kenya & 2 others
    (2003) K.L.R 125
  • Civil Appeal Case No. 70/2015 (Kisumu)
    delivered on 21/05/2019
Jurisdiction invoked
Inherent jurisdiction under Section 3A of the Civil Procedure Act and Order 40 Rules 1 & 2 of the Civil Procedure Rules (temporary injunction)

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, "James Maina Macharia v Irene Njeri Maina & 4 others [2020] KEELC 66 (KLR)", Case Analysis (2020). Not stated in the judgment (interim application in a suit over land parcel No. KIINE/RUIRU/29; Notice of Motion dated 21st July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/66/eng@2020-10-23

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