Munyi Alfred Kamuri v Munyi Alfred Kamuri & 4 others; Iruma Clan (Interested Party) eKLR [2021] KEELC 777 (KLR)
The bottom line
#An Embu court refused to freeze disputed land parcels because the applicant proved only a possibility of harm, not a probability, but allowed new parties to be added.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with a probability of success
He did not; the pendency of multiple suits over the parcels and existing orders against some would-be adverse possessors made it impossible to confidently find a prima facie case
The record showed several suits over the same parcels running in various courts over two decades, making it difficult to tell whether time for adverse possession had been running. Some of the persons claiming adverse possession had orders in force against them, including orders in ELC No. 247 of 2013 at Kerugoya. Against this background the court could not confidently hold that the applicant had demonstrated a prima facie case with a probability of success at the interlocutory stage.
Whether the applicant showed irreparable harm not compensable in damages
He did not address the issue at all, so the second Giella limb failed
Citing Nguruman Limited v Jan Bonde Nielsen, the court held that the applicant bears the burden of demonstrating the nature and extent of the injury, and that speculative injury or mere apprehension will not suffice. The applicant's application and submissions never addressed irreparability of harm or the inadequacy of damages, which is not enough; the actual harm and insufficiency of damages as compensation must be shown.
Whether restraining orders should issue over parcels not shown to be under threat of transfer
No; the alleged risk to the other parcels was a mere possibility, not a probability
The applicant feared the other parcels might be transferred but produced no information or evidence to that effect. The court drew a doctrinal distinction between possibility and probability: injunctions are granted where there is reasonable certainty that the act sought to be restrained may take place, supported by reasonable and credible information. The applicant failed to raise the need for restraint over the other parcels from a mere possibility to a probability.
Whether amendment and joinder should be allowed
Yes; the need arose from the 4th respondent's transfer of parcel No. 4971 during the pendency of the suit, and refusing joinder would frustrate the applicant's claim
Joinder under Order 1 of the Civil Procedure Rules enables the court to effectually and completely adjudicate all questions in the suit. The transfer occurred while the suit was pending, and the respondents themselves occasioned the need for joinder and amendment. The amendment does not change the character of the suit, is sought in good faith, and is necessary for effectual adjudication.
Legal principles established
#- Injunctive orders are granted on the basis of probability, not possibility; the applicant must show reasonable and credible information that what is sought to be restrained is likely to happen
- An applicant for a temporary injunction must demonstrate actual, substantial and demonstrable irreparable injury not adequately compensable in damages; speculative injury will not do
- An undertaking to pay damages is a criterion for granting an injunction; without it no injunction can issue
- Amendment or joinder will be allowed where necessary for effectual adjudication and where it does not change the character of the suit
Court orders
#- 1.Prayer 3 for a temporary restraining order dismissed
- 2.Prayer 4 allowed: the amended originating summons dated 21/3/2019 may be further amended to enjoin the Honourable Attorney General, with joinder of the party to whom parcel No. 4971 was transferred, and the further Amended Originating Summons deemed duly filed and served
- 3.Each side to bear its own costs of the application
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Orders 8 rule 3, 40 rule 1 and 50 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyi Alfred Kamuri v Munyi Alfred Kamuri & 4 others; Iruma Clan (Interested Party) eKLR [2021] KEELC 777 (KLR)", Case Analysis (2021). Not stated in the judgment (Embu ELC suit, amended originating summons dated 21/3/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/777/eng@2021-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.