Phoebe A. Mugo v Atieno Amadi & aother [2020] KEELC 1130 (KLR)
The bottom line
#The court refused to stop the university from using land it had occupied since 2006, showing that a title certificate alone does not guarantee winning an injunction in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success
No. The certificate of title annexed showed her late mother as registered owner, and un-rebutted evidence showed the mother had in 2006 obtained land control consent, executed a transfer to TICH and handed over possession to the 2nd defendant
Although Section 26 of the Land Registration Act makes a Certificate of Title evidence of ownership, it is only prima facie evidence. The un-rebutted replying affidavit showed the deceased mother relinquished her interest in 2006 and possession passed to the 2nd defendant. The property was therefore improperly included in the succession estate. The plaintiff thus had no right threatened with violation. Also, the suit may be statute-barred since possession began in 2006 and the suit was filed in 2020.
Whether an injunction could issue where the alleged event has already occurred
No. The trespass and development complained of had already occurred, and courts do not grant injunctions overtaken by events
The plaintiff herself confirmed the 2nd defendant's structures on the land and its possession since 2006. Following ESSO Kenya Ltd v Mark Makwatta and Stephen Mbugua Mwagiru, an injunction cannot be granted where the event has been overtaken by events. Granting the orders would evict the party in possession and amount to a mandatory injunction at interlocutory stage, permissible only in rare compelling circumstances, which were absent here.
Legal principles established
#- A Certificate of Title under Section 26 of the Land Registration Act is only prima facie evidence of ownership which can be challenged
- The Giella test must be applied sequentially; if no prima facie case is established, irreparable injury and balance of convenience need no consideration
- An interlocutory injunction will not be granted where its effect would be to evict a party in possession, amounting to a final order before trial
- A mandatory injunction at interlocutory stage is granted only in rare cases with compelling circumstances
Court orders
#- 1.The plaintiff's Notice of Motion dated 30th June 2020 is dismissed
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and the inherent powers of the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phoebe A. Mugo v Atieno Amadi & aother [2020] KEELC 1130 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 30th June 2020 in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1130/eng@2020-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.