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ELCPartially AllowedNot stated in the extract (notice of motion dated 11/01/2021 within a pending suit)· [2021] KEELC 3661 (KLR)

Josephine Kagiri M’turuchiu v M’Mwirichia M’Iguatu &Cecerina; Karoki M’Iguatu (Sued as the legal representatives of the estate of M’Iguatu M’Itania) [2021] KEELC 3661 (KLR)

Environment and Land Court
21 April 2021
1,410 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A buyer who occupied and developed land she purchased won court protection blocking any sale or transfer of the disputed Meru plot, but only for one year.

What this practically means

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Executive summary

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This was a notice of motion dated 11/01/2021 in a pending suit before the Environment and Land Court at Meru, brought under the Civil Procedure Act, Order 40 of the Civil Procedure Rules, Section 68 of the Land Registration Act and Section 13 of the Environment and Land Court Act. The plaintiff sought an inhibition over land parcel KIIRUA/NAARI-MAITEI/505 and an injunction restraining the defendants from dealings with the land pending hearing of the suit. She claimed she had bought 0.5 acres from the late M'Guatu M'Itania under a 1988 agreement for Kshs. 7,000, had taken possession and developed the land, and asserted rights by adverse possession; an earlier suit (CMCC No. 49 of 1989) had been dismissed for want of prosecution. The 2nd defendant, Cecerina Karoki M'guatu, widow of the deceased registered owner, opposed the application, asserting no intention to dispose of the land and that an inhibition would impede development, while acknowledging that a succession court had on 14.12.2020 ordered half an acre set aside pending determination of the ownership dispute. Applying the Giella v Cassman Brown conditions and the Mrao definition of a prima facie case, and guided by the lower-risk-of-injustice principle, the court found the applicant had established a prima facie case with probability of success and that no prejudice would be caused to the defendants. The application was allowed, with the injunctive orders limited to one year, and costs of the application were ordered to abide the outcome of the suit.

Key legal issues

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01

Whether the applicant established a prima facie case warranting an interlocutory injunction

Holding

Yes - the applicant produced a sale agreement, has been in possession and developed the land, and the 2nd defendant's affidavit admits her occupation; pertinent issues arise for trial.

Reasoning

Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found the applicant's sale agreement, long possession and development of the land, coupled with the 2nd defendant's admission of occupation, raised a genuine and arguable case. The injunction was needed to maintain the status quo pending determination of the suit.

p. 2
02

Whether an order of inhibition should issue over the suit land

Holding

Yes - the lower risk of injustice favours the plaintiff, who is in occupation, and no prejudice would be caused to the defendant.

Reasoning

Relying on Section 68(1) of the Land Registration Act and Dorcas Muthoni v Michael Ireri Ngari, the court held that inhibition, like an interlocutory injunction, preserves disputed property pending trial. Since the plaintiff occupies part of the land, the course carrying the lower risk of injustice favoured granting the inhibition.

p. 2

Legal principles established

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  • The purpose of a temporary injunction is to conserve the suit property pending determination of the dispute.
  • An order of inhibition, like an interlocutory injunction, preserves disputed property pending trial and requires good grounds.
  • The court should take the course that carries the lower risk of injustice.

Court orders

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  1. 1.Application dated 11/01/2021 allowed, with the injunctive orders to remain in force for a period of one year only
  2. 2.Inhibition order in respect of land parcel KIIRUA/NAARI-MAITEI/505
  3. 3.Injunction restraining the defendants, their servants or agents from any dealings appertaining to the suit land until the suit is heard and determined (limited to one year)
  4. 4.Costs of the application to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 63(c) and (e)
  • Civil Procedure Rules 2010Order 40 rules 1, 2, 3 and 4 (Order 40(1)(a) and (b))
  • Land Registration Act 2012Section 68(1)
  • Environment and Land Court ActSection 13(1) and (7)

Cases cited (6)

  • James Maina Kinya v Gerald Kwendaka
    [2018] eKLR
  • Peter Mbiri Michuki v Samuel Mugo Michuki
    [2014] eKLR
  • Hannah Wangui Mathenge & 2 Others v Rose Muthoni Mathenge
    (2017) eKLR
  • Giella vs Cassman Brown & Company Limited
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Dorcas Muthoni & 2 others v Michael Ireri Ngari
    [206] eKLR (as printed)
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act (Cap 21); Order 40 rules 1, 2, 3 and 4 of the Civil Procedure Rules; Section 68 of the Land Registration Act 2012; Section 13(1) and (7) of the Environment and Land Court 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, "Josephine Kagiri M’turuchiu v M’Mwirichia M’Iguatu &Cecerina; Karoki M’Iguatu (Sued as the legal representatives of the estate of M’Iguatu M’Itania) [2021] KEELC 3661 (KLR)", Case Analysis (2021). Not stated in the extract (notice of motion dated 11/01/2021 within a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3661/eng@2021-04-21

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