Danson Wanjohi Mithamo v Peter Kamau Kimani [2020] KEELC 1952 (KLR)
The bottom line
#A Kenyan court protected a man who occupied land for over 12 years, showing long, uncontested possession can win injunctions even against a registered owner.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case for a temporary injunction based on a claim of adverse possession
Yes - the sworn, uncontroverted averments of over twelve years' open, exclusive and uninterrupted possession and substantial developments established a prima facie case under Section 38 of the Limitation of Actions Act
The applicant deponed on oath that he had lived on the suit land with his family for over twelve years openly, without the owner's consent, with substantial investments in crops and structures. These averments were not controverted by the respondent. Given the claim for registration as proprietor by operation of law under Section 38 of the Limitation of Actions Act, the court found the first Giella principle satisfied.
Whether the applicant demonstrated irreparable loss not compensable by damages
Yes - the buildings, crops including avocado trees and investments on the land would suffer irreparable loss if the orders were not granted
The applicant had lived on the land over twelve years, constructed buildings and cultivated crops including avocado trees. The court was satisfied that should the orders not issue, the loss flowing from interference with these developments could not adequately be compensated by an award of damages, satisfying the second Giella principle.
Where the balance of convenience lies
The balance of convenience tilts in favour of the plaintiff/applicant
Even if the court were in doubt on the first two principles, it was persuaded that the balance of convenience favoured the applicant, who had been in long occupation with substantial developments on the land, and whose possession would be disrupted were the injunction withheld pending trial.
Legal principles established
#- A prima facie case in a civil application includes but is not limited to a genuine and arguable case - a right apparently infringed calling for explanation or rebuttal from the opposite party
- The three Giella principles govern the grant of a temporary injunction: prima facie case, irreparable injury, and balance of convenience
Court orders
#- 1.Temporary injunction restraining the defendant, his agents and/or servants from entering, encroaching, trespassing, evicting, sub-dividing and/or interfering with the plaintiff's rights on title number MUTIRA/KIRIMUNGE/1981 until the hearing and determination of the main suit
- 2.The plaintiff/applicant to fast track the hearing of the suit within 12 months failing which the injunction orders shall be vacated
- 3.Costs of the application to be costs in the cause
- Jurisdiction invoked
- Order 40 Rules 1 and 2, Order 51 Rule 1 CPR, Sections 1, 1A, 1B and 3A CPA and all enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Danson Wanjohi Mithamo v Peter Kamau Kimani [2020] KEELC 1952 (KLR)", Case Analysis (2020). Notice of Motion dated 24th October 2019 (ruling; suit relating to title No. MUTIRA/KIRIMUNGE/1981). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1952/eng@2020-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.