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ELCAllowedNot stated in the extract (Originating Summons dated 22nd October, 2019)· [2021] KEELC 4382 (KLR)

Johnbosco kisome Mutisya & 8 others v Gabriel Mulemba [2021] KEELC 4382 (KLR)

Environment and Land Court
12 February 2021
4,438 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court froze all activity on disputed land, holding that you cannot claim ownership by long occupation while simultaneously alleging the owner's title was fraudulent.

What this practically means

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Executive summary

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The Defendant, registered proprietor of Matuu/Ikaatini/676 (21.38 Ha) through succession, moved the court by Notice of Motion dated 5th August, 2020 seeking a temporary injunction restraining the nine Plaintiffs from excavating, making bricks, constructing, cutting trees, sub-dividing or selling the suit property pending trial, with the OCS Ekalakala Police Station to enforce compliance. He deponed that the 3rd Plaintiff began making bricks on 4th August 2020, causing soil erosion and waste. The Plaintiffs opposed, asserting occupation since 1968 and alleging that the Defendant fraudulently acquired the land through succession; they had themselves filed an Originating Summons dated 22nd October 2019 claiming ownership by adverse possession under Sections 7 and 38 of the Limitation of Actions Act. Angote J framed a single issue: whether an injunction should issue. Applying Giella v Cassman Brown, and authorities on waste and preservation, the court held that the Plaintiffs' undenied intention to make bricks - which involves excavating soil and would render the land uneconomically unusable - placed the suit property in danger of waste under Order 40 Rule 1. The court further held that an adverse possession claimant cannot simultaneously plead fraud in the acquisition of the registered title. The court granted the temporary injunction restraining excavation, brick-making, construction, tree-cutting, sub-division and sale, directed the OCS Ekalakala Police Station to ensure compliance, and ordered each party to bear his own costs.

Key legal issues

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01

Whether the Defendant established a prima facie case and risk of waste justifying a temporary injunction

Holding

Yes. The Defendant is the registered proprietor and the Plaintiffs did not deny their intention to make bricks on the land, an activity that would waste it; an injunction preserving the suit property pending trial should issue.

Reasoning

The court applied the Giella v Cassman Brown principles, holding that the purpose of a temporary injunction is preservation of the suit property. Brick-making entails excavating soil, rendering the land of no economic use. Since the Plaintiffs admitted the intention to make bricks and their adverse possession claim was undetermined, an injunction restraining waste or sale was warranted.

p. 6
02

Whether the Plaintiffs could both claim adverse possession and allege fraudulent acquisition of the Defendant's title

Holding

No. The two positions are irreconcilable; an adverse possession claim presupposes a lawful registered title.

Reasoning

The court reasoned that a claimant seeking registration as proprietor by effluxion of time necessarily concedes the validity of the existing registration. The Plaintiffs' OS sought extinction of the Defendant's title by adverse possession under Sections 7 and 38 of the Limitation of Actions Act, yet in the application they alleged fraud in acquiring the title, which the court held to be contradictory.

p. 5

Legal principles established

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  • A party claiming to be registered as proprietor through adverse possession must concede that the property is lawfully registered in the name of the registered owner and cannot simultaneously plead that the title was fraudulently acquired.
  • Under Order 40 Rule 1(a) and (b) of the Civil Procedure Rules the court is obliged to grant an injunction where property in dispute is in danger of being wasted, damaged or alienated by a party to the suit.

Court orders

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  1. 1.Pending the hearing and determination of the suit, a temporary injunction issued restraining the Plaintiffs/Respondents, their servants and/or agents from excavating, digging, making bricks, constructing, cutting trees, sub-dividing, selling and/or in any other way interfering with the conditions and state of the suit property known as Matuu/Ikaatini/676
  2. 2.The OCS Ekalakala Police Station in Machakos to ensure compliance with the orders
  3. 3.Each party to bear his own costs

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Civil Procedure RulesOrder 40 Rules 1(a) and (b)
  • Limitation of Actions Act (Cap 22)Sections 7, 13, 17 and 38

Cases cited (15)

  • Mary Njeri Mbugua vs. Alice Muthoni
    [2018] eKLR
  • James Thendu Gitau & Another vs. John Ngina Magecha
    (2020) eKLR
  • Kanan Dairy Limited vs. Beatrice Nzakwa Makau & Another
    (2020) eKLR
  • Wilfred Ogero Mosigisi vs. Julius Ogero Mosigisi and Another
    (2016) eKLR
  • Giella vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Fellowes and Son v. Fisher
    [1976] 1 QB 122
  • Mrao vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Fessenden vs. Higgs and Hill Ltd
    [1935] ALL ER 435
  • Francome vs. Mirror Group Newspapers Ltd.
    [1984] 1 WLR 892
  • American Cynamid vs. Ethicon
    [1975] AC 396
  • NWL Limited v. Woods
    [1979] WLR 1294
  • Kimani Ruchine vs. Swift Rutherford & Co. Ltd
    [1980] KLR
  • Teresa Wachuka Gachira vs. Joseph Mwangi Gachira
    (2009) eKLR
  • Benjamin Kamau Murima & Others vs. Gladys Njeri
    Civil Appeal No. 213 of 1996
  • Karnataka Board of Wakf vs. Government of India & Others
    (2004) 10 SCC 779
Jurisdiction invoked
Order 40 Rules 1(a) and (b) of the Civil Procedure Rules (inherent jurisdiction to grant temporary injunctions in a pending suit)

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, "Johnbosco kisome Mutisya & 8 others v Gabriel Mulemba [2021] KEELC 4382 (KLR)", Case Analysis (2021). Not stated in the extract (Originating Summons dated 22nd October, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4382/eng@2021-02-12

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