Wilson Kibuna Kungu v Hellen Wambui Chege & another [2021] KEELC 2014 (KLR)
The bottom line
#A Kenyan court refused to stop an adverse possession claimant from building on inherited land because the family waited too long to act.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Applicant, holder of a limited grant ad litem, has locus standi
The objection to locus failed; the limited grant ad litem conferred capacity on the 2nd Applicant to defend the suit and file the application, and the Respondent, who joined him to the suit, could not feign ignorance
The land is registered in the name of Chege Muguti, deceased, so the correct party is the personal representative. A limited grant ad litem attached to the Applicants' submissions appointed the 2nd Applicant as personal representative, giving him locus both to defend and to apply. The Respondent had himself joined the 2nd Applicant through the originating summons and could not at this stage deny his capacity. The objection was therefore misconceived.
Whether the 1st Applicant's alleged mental incapacity should be addressed
The Court declined to act on the unproven and unpleaded allegation that the 1st Defendant is mentally challenged
Although the Applicants submitted that the 1st Defendant is mentally unstable and cannot be sued, no evidence was provided to establish the averment and the point was not procedurally raised before the Court. The Court therefore declined to make any finding on it.
Whether the applicants met the Giella v Cassman Brown principles for a temporary injunction
The application failed on the irreparable harm limb: no imminent danger was shown and any loss could be quantified and compensated
Although the land appeared to have belonged to the Applicants' deceased father and a prima facie position could be argued, the Applicants led no evidence that the Respondent's construction would attract third parties; their apprehension rested on rising land prices alone. They failed to show they lived on the land or that they moved with speed when construction began, having been indolent and jolted into action only by the Respondent's suit. Loss, if any, was quantifiable in damages.
Legal principles established
#- A party holding a limited grant ad litem has locus standi to defend a suit concerning a deceased person's estate and to institute applications in that capacity
- An applicant for a temporary injunction must demonstrate a prima facie case, irreparable harm not compensable in damages, and balance of convenience
Court orders
#- 1.The notice of motion dated 30/6/2021 seeking an injunction is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Original civil jurisdiction over land matters; the application was brought under Order 40 Rule 1(a) and (b) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Kibuna Kungu v Hellen Wambui Chege & another [2021] KEELC 2014 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2014/eng@2021-09-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.