Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of Motion dated 8th July, 2021 (suit number not stated in judgment)· [2021] KEELC 49 (KLR)

Andrew Muchiri Muriuki & another v Nancy Waguama Kariithi [2021] KEELC 49 (KLR)

Environment and Land Court
3 December 2021
ECE.C. Cherono
2,694 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court stopped a landowner from evicting or selling disputed land while a long-term occupier's ownership-by-long-use claim is decided.

What this practically means

#

Executive summary

#
The Applicants, claiming to have occupied 4.0 acres of L.R Baragwe/Guama/296 since 1995 and to have acquired title by adverse possession, moved the court by Notice of Motion dated 8th July 2021 seeking a temporary injunction restraining the Respondent from evicting them or alienating the land, plus inhibition orders preserving the registration status pending hearing of the suit. They relied on their extensive development of the land - houses, tea bushes, coffee, grazing units and a family grave - and alleged the Respondent threatened sub-division and alienation. The Respondent, who inherited the property through succession from her son, countered that the Applicants are her nephews who were permitted onto the land by her late husband in about 2006 after eviction from their father's parcel Baragwe/Guama/309, that their tea nursery permit related to that other parcel, and that they concealed a brother also living on the land. Applying the Giella v Cassman Brown principles as defined in Mrao v First American Bank and Habib Bank AG Zurich v Yakub, the court found the Applicants were in occupation and had extensively developed the land, and that the disputes over when limitation time started, exclusivity and permission could only be resolved at full hearing. Finding a need to preserve the subject matter, the court allowed the application as prayed, granting the temporary injunction and inhibition orders, with costs in the cause. Judgment delivered at Kerugoya on 3rd December 2021.

Key legal issues

#
01

Prima facie case and preservation pending trial

Holding

The Applicants, in occupation and extensive development of 4.0 acres of the suit land claiming adverse possession, established a case warranting preservation

Reasoning

Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the Applicants were in occupation and had extensively developed the land. The Respondent's contest centred on when time ran, exclusivity and permissive entry - matters reserved for full trial. Preservation of the subject matter justified granting the injunction and inhibition orders sought.

p. 4
02

Whether the court should determine the merits of the adverse possession claim at interlocutory stage

Holding

No - contentions on commencement of time, exclusivity and permission must await full hearing

Reasoning

The court held that the dispute as to when limitation began, the exclusivity of occupation and whether entry was permissive are matters of fact that can only be ventilated at the full hearing; at interlocutory stage the court only gauges the strength of the plaintiff's case per Habib Bank AG Zurich v Yakub.

p. 4

Legal principles established

#
  • Prerequisites for temporary injunction are a prima facie case with probability of success, irreparable loss not compensable by damages, and, if in doubt, the balance of convenience
  • At the interlocutory stage the court gauges the strength of the plaintiff's case rather than adjudicating the main suit

Court orders

#
  1. 1.The Notice of Motion dated 8th July, 2021 is allowed as prayed
  2. 2.Temporary injunction restraining the Respondent, her servants, agents or anyone claiming under her from evicting, wasting, trespassing on, selling, charging, leasing, transferring, sub-dividing, blocking access to or interfering with the Applicants' possession of the 4.0 acres portion of L.R Baragwe/Guama/296 pending hearing and determination of the suit
  3. 3.Orders of inhibition or prohibition against disposal, charging, leasing, assigning or transferring of L.R Baragwe/Guama/296 pending hearing and determination of the suit
  4. 4.Costs shall be in the cause

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3

Cases cited (3)

  • Giella vs. Cassman Brown & Another
    (1973) E.A 358
  • MRAO VS FIRST AMERICAN BANK OF KENYA LTD & OTHERS
    2003 K.L.R 125
  • Habib Bank AG Zurich v. Eugene Marion Yakub
    (Nairobi Civil Application No. 43 of 1982) (UR)
Jurisdiction invoked
Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules (inherent interlocutory jurisdiction of the ELC over land)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Andrew Muchiri Muriuki & another v Nancy Waguama Kariithi [2021] KEELC 49 (KLR)", Case Analysis (2021). Notice of Motion dated 8th July, 2021 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/49/eng@2021-12-03

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