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ELCAllowedNot stated in the judgment· [2020] KEELC 624 (KLR)

George Mbugua Njuguna & 3 others v Joseph Gachuhi Muthanji & another [2020] KEELC 624 (KLR)

Environment and Land Court
12 November 2020
2,334 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kiambu family occupying land since 1951 won a court order freezing all dealings with the property while their adverse possession claim is heard.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (L. Gacheru J) on a Notice of Motion dated 4th June 2019 by the Plaintiffs/Applicants, who are family members (cousins) occupying portions of LR No. Kabete/Kibichiku/208 in Kiambu County. They sought a temporary injunction restraining the Defendants/Respondents - administrators of the Estate of George Muthanji Wangige - from dealing with, subdividing, transferring or alienating the suit property, and an order directing the Land Registrar to register an inhibition over the title pending the hearing and determination of the suit. The Applicants averred that their families had occupied the land since 1951, that their grandfather's suit against the deceased over customary trusts had abated, that the deceased procured a sole title despite an agreed registration in the names of the three brothers, and that they now claim adverse possession and face threatened eviction and boundary interference. The application was unopposed, but the Court held the Applicants still bore the burden of proof. Applying the Giella v Cassman Brown criteria and the Mrao Ltd definition of a prima facie case, the Court found the Applicants had established a prima facie case with a probability of success, that they would suffer irreparable loss not compensable by damages, and that the balance of convenience favoured maintaining the status quo. The application was allowed entirely, with costs to the Plaintiffs/Applicants. The ruling was delivered virtually pursuant to COVID-19 directions, with the parties waiving compliance with Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Whether the Applicants established a prima facie case for a temporary injunction

Holding

Yes. The Applicants claimed adverse possession, occupation since 1951, and uncontroverted threats of eviction; their rights over the suit property may be infringed, calling for rebuttal by the Defendants.

Reasoning

Applying the Mrao Ltd definition, the Court found that on the material presented the Applicants had shown an apparent right - occupation of the suit property since birth and over 12 years, uncontroverted allegations of threatened eviction and boundary interference - which called for an explanation or rebuttal from the Defendants, who did not respond to the application.

p. 3
02

Whether the Applicants will suffer irreparable harm not compensable by damages

Holding

Yes. Eviction from the only home the Applicants have ever known, if they are ultimately found entitled to adverse possession, would be harm that damages cannot compensate.

Reasoning

Relying on Niaz Mohammed Janmohammed and Olympic Sports House, the Court held that no amount of money can compensate infringement of the Applicants' occupation rights; the Applicants had lived on the land since 1951, built structures, and the Defendants had already started interfering with established boundaries.

p. 3
03

Balance of convenience and entitlement to an inhibition

Holding

The balance of convenience favours maintaining the status quo, with the Applicants remaining on the suit property until the suit is determined; the Applicants are also entitled to the inhibition orders sought.

Reasoning

Though the Court was not in doubt on the threshold, it observed that the balance of convenience would tilt in favour of maintaining the status quo. Having met the threshold for injunctive relief, which is equitable in nature, the Applicants were also found entitled to the inhibition to be registered by the Land Registrar.

p. 4

Legal principles established

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  • Where an applicant lays a claim of adverse possession and alleges threatened eviction which is not controverted, their rights over the suit property may be infringed and a prima facie case is established.
  • In an interlocutory application, the Court is not required to determine the very issues which will be canvassed at trial with finality.

Court orders

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  1. 1.Temporary injunction restraining the Defendants/Respondents, their agents, servants, employees, assigns or any persons claiming under them from initiating developments, subdividing, transferring, disposing of, erecting developments, offering for sale by private treaty, auction or advertisement, alienating, charging, mortgaging or in any way dealing with LR No. Kabete/Kibichiku/208 pending the hearing and determination of the suit
  2. 2.The Land Registrar directed to register an inhibition in respect of the title for LR No. Kabete/Kibichiku/208 barring any disposition, alienation, subdivision or intended dealings during the pendency of the suit or pending further orders of the Court
  3. 3.Costs of the application to the Plaintiffs/Applicants

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (7)

  • Giella Vs Cassman Brown & Co. Ltd
    1973 EA 358
  • E.A Industries Vs Trufoods
    (1972) EA 420
  • Edwin Kamau Muriu Vs Barclays Bank of Kenya Ltd
    Nairobi HCCC No. 1118 of 2002
  • Mrao Ltd Vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Paul Gitonga Wanjau Vs Gathuthi Tea Factory Co. Ltd & 2 Others
    Nyeri HCC No. 28 of 2015
  • Niaz Mohammed Janmohammed Vs Commissioner for Lands & 4 Others
    (1996) eKLR
  • Olympic Sports House Ltd Vs School Equipment Centre Ltd
    (2012) eKLR
Jurisdiction invoked
Original civil jurisdiction over land matters; inherent and statutory power to grant temporary injunctions and inhibitions under the Civil Procedure Act/Order 40 and the Limitation of Actions Act (Section 38 invoked on adverse possession)

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, "George Mbugua Njuguna & 3 others v Joseph Gachuhi Muthanji & another [2020] KEELC 624 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/624/eng@2020-11-12

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