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ELCPartially AllowedNotice of motion dated 16th February 2021 (Chuka ELC)· [2021] KEELC 3298 (KLR)

Geoffrey Kiania Kamwara v Mwikamba Kagembe [2021] KEELC 3298 (KLR)

Environment and Land Court
18 May 2021
PNP. M. Njoroge
3,853 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan landbuyer-squatter facing eviction won temporary protection: no eviction or demolition, and the land is frozen, but the owner keeps access.

What this practically means

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Executive summary

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The applicant, Geoffrey Kiania Kamwara, moved the Environment and Land Court at Chuka by notice of motion dated 16th February 2021 under Section 68(1) of the Land Registration Act and Sections 1A, 1B and 3A of the Civil Procedure Act. He sought urgent ex-parte treatment, an order of inhibition over Land Parcel THARAKA/CHIAKARIGA 'A'/1485, and temporary injunctions restraining the respondent from evicting him, demolishing his houses, or dealing with the land pending hearing of the application and suit. He claimed occupation since 1992, developments on the land, and a beneficial interest under the doctrine of adverse possession, alleging the land was fraudulently registered in the respondent's name and that he had been served with a notice to vacate by 28th February 2021. The respondent opposed, asserting absolute registered ownership, that the parties were neighbours locked in boundary disputes, that occupation was subject to an agreement and therefore not 'nec vi, nec clam, nec precario', and that the applicant owned and had transferred his own parcel, THARAKA/CHIAKARIGA/1529, shortly before filing, soiling his hands in equity. The court, P. M. Njoroge J, observed that occupation by the applicant and the respondent's registration were undisputed. It declined to grant a full injunction that would bar the registered owner's access, but restrained eviction and demolition, granted inhibition pending determination of the suit, and ordered costs in the cause.

Key legal issues

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01

Entitlement to interlocutory relief in a pending adverse possession claim

Holding

The applicant obtained limited protection: restraint from eviction and demolition plus an inhibition against dealings, but not a full injunction barring the registered owner's access

Reasoning

The court noted both parties agreed the applicant occupied part of the land and that the respondent was the registered owner. Because the main suit is a claim for ownership by adverse possession, preservation of the land was necessary. However, a full injunction would deny the registered owner all access, so the court tailored relief, leaving most contested issues for the trial.

p. 6
02

Effect of an inhibition order

Holding

Inhibition is merited because it preserves the current ownership of the suit land pending determination of the suit

Reasoning

The applicant sought inhibition under Section 68 of the Land Registration Act to prevent alienation or transfer of the land before trial. The court found that preserving present ownership served the purpose of keeping the suit from being rendered nugatory and granted prayer (b) pending hearing and determination of the suit.

p. 6

Legal principles established

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  • An inhibition order under Section 68 of the Land Registration Act preserves the present ownership of suit land pending trial
  • Where a suit claims ownership under the doctrine of adverse possession, the suit land should be preserved pending hearing

Court orders

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  1. 1.The respondent or any other person acting at his behest is restrained from evicting the applicant from the suit land or demolishing his houses pending hearing and determination of this suit
  2. 2.Prayer b, for inhibition, is granted pending hearing and determination of this suit
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Land Registration Act No. 3 of 2012Section 68(1)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 rule 1; Orders 40 and 51

Cases cited (2)

  • Giella v Cassman Brown & Co. Ltd
  • Panari Enterprises Limited v Lijoodi & 2 others
    [2014] eKLR
Jurisdiction invoked
Section 68(1) Land Registration Act No. 3 of 2012; Sections 1A, 1B and 3A Civil Procedure Act

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, "Geoffrey Kiania Kamwara v Mwikamba Kagembe [2021] KEELC 3298 (KLR)", Case Analysis (2021). Notice of motion dated 16th February 2021 (Chuka ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3298/eng@2021-05-18

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