Catherine Gatuti & Martha Nthama v Cyprian Kobia Mbeeria [2021] KEELC 1330 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicants established a prima facie case for injunction
No - their adverse possession claim had not been determined and their claim fell outside the Section 26 LRA exceptions to indefeasibility
The court held that the respondent's title is prima facie evidence of ownership under Section 26 of the Land Registration Act. The applicants' claim was based on adverse possession, not fraud, misrepresentation or illegality, and the court had not yet declared their adverse rights. Without an apparent infringement of an established right, the Giella/Mrao threshold was not met.
Irreparable harm and balance of convenience
Neither satisfied; damages would suffice and convenience favoured refusing the injunction
The court found the applicants did not demonstrate irreparable loss incapable of compensation by damages, particularly given the respondent's registered title and extensive developments including a petrol station and family residence on the land. The balance of convenience therefore tilted against granting the interlocutory restraint.
Legal principles established
#- A title deed under Section 26 of the Land Registration Act 2012 is prima facie evidence of ownership except on account of fraud, misrepresentation or illegality
- A prima facie case requires more than a genuine and arguable case; there must exist a right apparently infringed by the opposite party
- An adverse possession claimant whose rights have not yet been declared cannot obtain an interlocutory injunction against the registered proprietor
Court orders
#- 1.The notice of motion dated 16th July 2021 is dismissed with costs
- 2.Parties given the very last chance to comply with Order 11 within 45 days, failing which the originating summons shall stand dismissed for non-compliance
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (adverse possession claim under Order 37 Rule 7 of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Gatuti & Martha Nthama v Cyprian Kobia Mbeeria [2021] KEELC 1330 (KLR)", Case Analysis (2021). Not stated in extract (Originating Summons dated 26th November 2018; Notice of Motion dated 16th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1330/eng@2021-10-27
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