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ELCAllowedNot stated in the judgment as extracted· [2021] KEELC 938 (KLR)

Naomi Kathira Mungania v Scola Karuthu Muriira (Sued as an Administratrix of the Estate of the Late Lawrence Muriira M’thiruaine (Deceased) & another [2021] KEELC 938 (KLR)

Environment and Land Court
17 November 2021
1,064 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru blocked land transfers and dealings on a disputed Meru parcel, protecting a widow's adverse possession claim while the case is heard.

What this practically means

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Executive summary

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The plaintiff, by notice of motion dated 14.6.2021, sought a temporary injunction restraining the defendants from interfering with L.R. No. Ntima/Ntakira/2591 and orders of inhibition pending the hearing of her originating summons claiming adverse possession. She alleged the land was registered in the 2nd defendant's name on 14.7.2020 but previously belonged to her late husband's family, and that she had been in open and continuous adverse possession since 1992. The 1st defendant opposed, contending the plaintiff resides on a different parcel, that a Land District Tribunal award required her to relocate to Ruiri Rwarera, that she had breached prior injunctive orders granted on 19.8.2020 in Meru HCCC No. 100 of 2020, and that the suit was an abuse of process amounting to forum shopping after losses in a succession cause and a civil appeal. In reply, the plaintiff explained a frustrated land exchange agreement. Applying the Giella v Cassman Brown principles, the court found the plaintiff had established a prima facie case with a probability of success given her consistent account of how the defendants came to be registered; the balance of convenience favoured her given the existing 19.8.2020 injunctive order; and the transfer of the property to the 2nd defendant soon after confirmation of the grant appeared designed to defeat her rights, justifying preservation through inhibition under sections 68 and 69 of the Land Registration Act. The application was allowed in terms of prayers 2 and 4, the orders to subsist for one year, with Order 11 compliance and hearing within 120 days.

Key legal issues

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01

Whether a prima facie case was established

Holding

The plaintiff established a prima facie case with a probability of success given a consistent account of how the suit land was transferred

Reasoning

The court found from the pleadings and affidavits that there was a land exchange agreement between the parties' deceased husbands which was frustrated because the defendant's side had no land to exchange. The plaintiff gave a consistent trail of events explaining the registration of the 2nd defendant, which the court accepted as sufficient for a prima facie case.

p. 2
02

Irreparable loss and preservation of the property

Holding

Transfer of the property to the 2nd defendant soon after confirmation of the grant appeared designed to defeat the plaintiff's claimed rights, justifying inhibitory orders

Reasoning

The court noted the property changed hands soon after confirmation of the grant, ostensibly to defeat the plaintiff's rights, and held inhibition orders under sections 68 and 69 of the Land Registration Act appropriate to preserve the property until hearing.

p. 2
03

Balance of convenience

Holding

Balance of convenience favoured maintaining the injunction, particularly as an injunctive order of 19.8.2020 was already in existence

Reasoning

The court observed that an injunctive order issued on 19.8.2020 in related proceedings was undisputed and known to the defendants, and reasoned that granting similar orders in this suit maintained the status quo.

p. 2

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with probability of success, irreparable loss, and balance of convenience
  • Sections 68 and 69 of the Land Registration Act confer power on the court to issue orders of inhibition to preserve property

Court orders

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  1. 1.Temporary injunction restraining the defendants from interfering with L.R. No. Ntima/Ntakira/2591 in terms of prayer 2
  2. 2.Order of inhibition over the suit land in terms of prayer 4, to subsist for one year from the date of the order
  3. 3.Parties to comply with Order 11 and list the originating summons for hearing within 120 days

Authorities

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Legislation

  • Land Registration ActSections 68 and 69
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Giella –vs- Cassman Brown
Jurisdiction invoked
Sections 68 and 69 of the Land Registration Act (inhibitory orders); interlocutory jurisdiction under the Civil Procedure Rules

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, "Naomi Kathira Mungania v Scola Karuthu Muriira (Sued as an Administratrix of the Estate of the Late Lawrence Muriira M’thiruaine (Deceased) & another [2021] KEELC 938 (KLR)", Case Analysis (2021). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/938/eng@2021-11-17

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