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ELCOtherNot stated in the judgment text provided (Notice of Motion dated 6th July 2020 in an Originating Summons)· [2021] KEELC 4345 (KLR)

Charles Njagi Miriti v Leonard Mutembei Girishon & 3 others [2021] KEELC 4345 (KLR)

Environment and Land Court
17 February 2021
PNP. M. Njoroge
3,873 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court kept the current situation on disputed family land frozen until full trial, refusing to decide the adverse possession claim early.

What this practically means

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Executive summary

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The applicant, Charles Njagi Miriti, moved the Environment and Land Court at Chuka by Notice of Motion dated 6th July 2020, brought under sections 1A, 1B, 3 and 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking temporary injunctions restraining the respondents from trespassing on, evicting him from, or interfering with his occupation of land parcels Muthambi/Gatua/2294, 2295 and 2296 (originally Muthambi/Gatua/429), plus inhibition orders against all dealings in those parcels. He asserted he had occupied the land since August 1991, having been gifted it by his grandfather M'Rucha M'bwiria, and claimed title by adverse possession after the respondents registered the subdivided parcels following a succession cause. The application was canvassed by written submissions. The applicant relied on the Giella v Cassman Brown tests and authorities on prima facie cases and irreparable harm; the respondents contended the adverse possession claim was premature (possession ran 1991 to 2002 when they were registered, roughly eleven years), that the applicant had not dispossessed the title holder, and that a prior suit (Meru Civil Case No. 40 of 2003) had been dismissed for want of prosecution. The court found the disputed issues belonged to the trial of the main Originating Summons. Noting that Lady Justice Lucy Mbugua had on 9th July 2020 issued status quo and inhibition orders in terms of prayer 4, and that a judge of concurrent jurisdiction cannot overrule a fellow judge's decision, the court maintained the status quo, confirmed prayer 4, directed Order 11 compliance within 14 days, ordered costs in the cause, and set directions for 16th March 2021.

Key legal issues

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Whether the applicant established a prima facie case and entitlement to interlocutory injunction based on adverse possession

Holding

The court deferred the substantive adverse possession and injunction questions to the trial of the main suit, preserving the status quo instead

Reasoning

The parties' submissions on adverse possession and the Giella v Cassman Brown injunction tests were diametrically opposed. The court held these are trial issues, noting that a prior interlocutory status quo and inhibition order had been issued by Lady Justice Lucy Mbugua on 9 July 2020, which a judge of concurrent jurisdiction could not overrule. It therefore confirmed prayer 4 and directed compliance with Order 11.

p. 6

Legal principles established

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  • A judge of concurrent jurisdiction cannot overrule a decision made by another judge

Court orders

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  1. 1.An order of status quo as issued by Lady Justice Lucy Mbugua on 9th July, 2020
  2. 2.Prayer 4 as granted by Lady Justice Lucy Mbugua is hereby confirmed
  3. 3.The plaintiff should fully comply with order 11, CPR, within 14 days of today and the defendants should do so within 14 days after receipt of the plaintiff's compliance documents
  4. 4.Costs regarding this application shall be in the cause
  5. 5.The parties to come for directions on 16th March, 2021

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3 and 63(e)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 11

Cases cited (9)

  • Giella v. Cassman Brown
    [1973] E.A. 358
  • Airland Tours & Travel Limited vs. National Industrial Credit Bank
    Nairobi (Milimani) HCCC NO. 1234 of 2002
  • Michael Gitere & another vs Kenya Commercial Bank Limited
    [2018] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Paul Gitonga Wanjau vs. Gathuthi Tea Factory Company Ltd & 2 others
    [2016] eKLR
  • Hutchings Biemer Ltd v Barclays Bank of Kenya Ltd & 2 others
    [2006] eKLR
  • Kimani Ruchine & Anor Vs Swift Rutherford & Co. Ltd and Another
    (1980) KLR 10
  • Wambugu –v- Njuguna
    (1983) KLR 173
  • Mbira –v- Gachuhi
    (2002) IEALR 137
Jurisdiction invoked
Sections 1A, 1B, 3 and 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Charles Njagi Miriti v Leonard Mutembei Girishon & 3 others [2021] KEELC 4345 (KLR)", Case Analysis (2021). Not stated in the judgment text provided (Notice of Motion dated 6th July 2020 in an Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4345/eng@2021-02-17

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