Peninah Moraa Mose v Priscila Muthuri Kaburo & another [2021] KEELC 1876 (KLR)
The bottom line
#A Kenyan land court preserved a disputed family property with an inhibition rather than an injunction, encouraging the relatives to settle out of court.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff demonstrated a prima facie case for a temporary injunction
A prima facie case could not be conclusively determined at the interlocutory stage; the ingredients of the plaintiff's adverse possession claim are matters for trial, and the 1st defendant acknowledges the plaintiff's possession
The court observed that the parties are sisters-in-law and the dispute is essentially a family dispute. The plaintiff claims entitlement by adverse possession and a family trust over the property. Whether the ingredients of adverse possession exist is a matter for evidence at trial; the 1st defendant's acknowledgment that the plaintiff has been in possession was noted but whether it meets the criteria for adverse possession must await trial.
The appropriate interlocutory preservation order
Rather than a wide-acting injunction, adequate preservation is achieved by an order of inhibition under Paragraph 32 of the ELC Practice Directions read with Section 68 of the Land Registration Act
Given the close family ties, the court declined the broad injunction sought. It held that preservation of the suit property pending trial or amicable settlement could be attained through an inhibition registered against the specific title, relying on the Practice Directions and Section 68 of the Land Registration Act, thus preserving the property without depriving the registered owner of full proprietary control.
The 1st defendant's preliminary objection on locus standi and party deficiency
No submissions were advanced on the objection; it was deemed incorporated into the 1st defendant's response to the application
Although the 1st defendant filed a preliminary objection alleging lack of locus standi, lack of proper parties and defectiveness of the application, no party addressed it in submissions. The court, as previously ordered on 12th May 2021, deemed the objection incorporated into the replying affidavit and did not pronounce itself separately on it.
Legal principles established
#- Interlocutory injunction applicants must establish a prima facie case with probability of success, that damages would not be an adequate remedy, and, if in doubt, the balance of convenience - applied sequentially
- If a prima facie case is not established, the other Giella limbs need not be considered
- In interlocutory applications in land matters, parties may be encouraged to agree to maintain status quo, failing which the judge may order status quo pending determination of the suit
Court orders
#- 1.Pending the hearing and determination of the suit, an inhibition be registered against the parcel of land known as Shawa Gicheha Block 4/113
- 2.Costs of the Notice of Motion dated 19th February 2021 shall be in the cause
- Jurisdiction invoked
- Environment and Land Court jurisdiction over use, occupation of and title to land (Section 68 of the Land Registration Act invoked for inhibition; Paragraph 32 of the ELC Practice Directions, Gazette Notice No. 5178 of 2014)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peninah Moraa Mose v Priscila Muthuri Kaburo & another [2021] KEELC 1876 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1876/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.