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ELCPartially AllowedNot stated in judgment (Meru ELC notice of motion dated 30/4/2020)· [2020] KEELC 1398 (KLR)

Wilfred Mutembei v Andrina Nkuene Njiru & 2 others [2020] KEELC 1398 (KLR)

Environment and Land Court
16 September 2020
LMLucy N. Mbugua
1,572 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court blocked the sale of land occupied for 12 years and added Co-operative Bank to the case, protecting a claimed adverse possession interest.

What this practically means

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Executive summary

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The plaintiff, Wilfred Mutembei, moved the Environment and Land Court at Meru by notice of motion dated 30 April 2020 under Order 40 Rules 1, 2 and 3 and Order 1 Rule 3 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act, seeking a temporary injunction restraining the respondents from selling, alienating or disposing of land parcel IGOJI/KIANJOGU/497, and seeking to enjoin the Co-operative Bank as a defendant. He claimed to have acquired the suit land by adverse possession after 12 years of occupation with his family, constructing permanent houses and planting tea. He learnt that auctioneers intended to sell the land on 5 May 2020 following the second respondent's default on a loan facility secured by the land, allegedly created secretly while the suit was pending. The bank opposed, contending the land was validly vested in Andrina Nkuene through a succession cause and transferred to Phineas Mugambi, that the applicant failed to protect his interest, and that no prima facie case, irreparable harm or balance of convenience favouring the applicant was demonstrated. The court framed two issues: whether injunctive orders were warranted and whether the bank should be enjoined. Applying the Giella v Cassman Brown criteria and the Mrao definition of a prima facie case, the court found the applicant's interest likely to be infringed, irreparable loss established and balance of convenience favouring the occupier. It also held joinder was merited because the bank's charge was created during the subsistence of the suit. The application was allowed, the bank was to file its defence within 14 days, and costs of the application were to abide the outcome of the suit.

Key legal issues

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01

Whether the applicant established a prima facie case and irreparable loss for temporary injunction

Holding

The applicant proved a prima facie case as his alleged adverse possession interest was likely to be infringed by the intended auction, and irreparable loss and balance of convenience favoured him.

Reasoning

Applying the Giella v Cassman Brown criteria, the court found the applicant's claimed 12-year occupation and adverse possession interest would be infringed if the charged land were sold. His family lived on the land and faced eviction, constituting irreparable harm, and the balance of convenience favoured the person in occupation and utilization of the land. The interlocutory court does not decide disputed issues with finality.

p. 2
02

Whether the bank should be joined as a defendant

Holding

Joinder of the bank as 3rd defendant was merited because it took the charge over the suit land during the subsistence of the suit.

Reasoning

Under Order 1 rule 3, all persons against whom any right to relief arises out of the same transaction may be joined where common questions of law or fact arise. The bank advanced the loan and took the suit land as security while this suit was pending, so the applicant could not have included it at filing; joinder was therefore proper.

p. 2

Legal principles established

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  • A party whose interest in suit land arose during the subsistence of a pending suit, and which could not have joined a subsequent chargee at the filing of the suit, may be joined as a defendant under Order 1 rule 3.
  • Balance of convenience tilts in favour of the party allegedly utilizing the land.

Court orders

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  1. 1.The application dated 30.4.2020 is allowed
  2. 2.Temporary injunction restraining the respondents from selling, alienating and/or disposing of land parcel NO. IGOJI/KIANJOGU/497
  3. 3.The Co-operative bank is enjoined as the 3rd defendant
  4. 4.The 3rd defendant (Co-operative bank) is to file and serve its defence within a period of 14 days
  5. 5.Costs of the application shall abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Civil Procedure RulesOrder 1 Rule 3
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSections 3, 3A
  • Land Registration ActSection 26(a)(b)

Cases cited (6)

  • Ibrahim Mungara Kamau v. Francis Ndegwa Mwangi
    (2014) eKLR
  • Lawrence P. Mukiri & Others v. AG & 4 Others
    (2017) eKLR
  • Giella v. Cassman Brown
    (1973) EA 358
  • Mrao Ltd v. First American Bank of Kenya
    (2003) KLR 125
  • Bii v. Kenya Commercial Bank Ltd.
    (2001) KLR 458
  • Jane Wambui Weru v. Overseas Private Inv. Corp & 3 Others
    (2012) eKLR
Jurisdiction invoked
Order 40 Rules 1, 2 and 3 and Order 1 Rule 3 of the Civil Procedure Rules; Sections 3 and 3A 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, "Wilfred Mutembei v Andrina Nkuene Njiru & 2 others [2020] KEELC 1398 (KLR)", Case Analysis (2020). Not stated in judgment (Meru ELC notice of motion dated 30/4/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1398/eng@2020-09-16

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