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ELCDismissedNot stated in the judgment (plaint dated October 7, 2020)· [2021] KEELC 4742 (KLR)

Kamunge & 2 others v Waweru & another (Environment & Land Case E001 of 2020) [2021] KEELC 4742 (KLR)

Environment and Land Court
4 March 2021
YAY.M. Angima
1,670 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Nyahururu refused to protect long-term land occupants from eviction because their claim was too vague to show it would likely succeed.

What this practically means

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Executive summary

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By a plaint dated October 7, 2020, the plaintiffs claimed that between 1987 and 1992 they entered and occupied various portions of Title No. Nyandarua/Karati/1834, registered in the name of the late Mary Wanja Waweru, whose estate the defendants were administering. They sought declarations that the defendants' interest in the suit property was extinguished under sections 7 and 17 of the Limitation of Actions Act and that they were entitled to be registered as proprietors of the portions they occupied, though they denied the claim was one for adverse possession. Simultaneously, they moved the court under Order 40 of the Civil Procedure Rules for a temporary injunction restraining the defendants from disposing of or interfering with their occupation, apprehending that pending succession proceedings (Naivasha HC Succession Cause No. 155 of 2015) might culminate in sale of the land. The defendants opposed, contending the deceased was registered in 2004 and sued for eviction in 2008 (Nakuru CMCC No. 853 of 2008), interrupting any adverse possession until the suit abated in 2014, and that the plaintiffs were using the backdoor to injunct succession proceedings. The court framed two issues: whether the requirements for an injunction were satisfied and costs. Applying Giella v Cassman Brown and Mrao v First American Bank, the court held the plaintiffs had failed to plead their case with reasonable precision, had not identified any infringed right, and had not demonstrated a prima facie case with a probability of success; it therefore declined to consider the remaining Giella principles and dismissed the application with costs to the defendants, borne by the plaintiffs jointly and severally.

Key legal issues

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01

Whether the plaintiffs established a prima facie case with a probability of success

Holding

They did not; the claim was imprecise and defensively pleaded, and despite denial the claim was in substance one for adverse possession

Reasoning

The court observed that although the plaintiffs framed their claim under sections 7 and 17 of the Limitation of Actions Act, the declarations sought (registration as proprietors of the portions occupied) are remedies under section 38 of the LAA, i.e. adverse possession. The court held the plaintiffs failed to identify with reasonable precision which legal rights had been infringed, so no prima facie case was made out against defendants who had not themselves sued for recovery.

02

Who bears costs of the application

Holding

The defendants, as successful parties, were awarded costs to be borne by the plaintiffs jointly and severally

Reasoning

Costs are discretionary but follow the event under the proviso to section 27 of the Civil Procedure Act. Citing Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, the court found no good reason to depart from the general rule that a successful party should ordinarily be awarded costs.

p. 4

Legal principles established

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  • Costs follow the event unless the court, for good reason, directs otherwise
  • An applicant must satisfy the first Giella principle (prima facie case) before the court need consider the other principles

Court orders

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  1. 1.The plaintiffs' notice of motion dated October 7, 2020 is dismissed
  2. 2.Costs of the application awarded to the defendants, to be borne by the plaintiffs jointly and severally

Authorities

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Legislation

  • Limitation of Actions Act (cap 22)sections 7, 17, 38
  • Civil Procedure Act (cap 21)sections 1A, 1B, 3A, 27
  • Civil Procedure Rules, 2010Order 40

Cases cited (5)

  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao v First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • Nguruman Ltd v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
  • Mary Wanja Waweru v Jacob Ndegwa Kimani & 3 others
    Nakuru CMCC No. 853 of 2008
Jurisdiction invoked
Order 40 of the Civil Procedure Rules, 2010 and sections 1A, 1B and 3A of the Civil Procedure Act (cap 21)

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, "Kamunge & 2 others v Waweru & another (Environment & Land Case E001 of 2020) [2021] KEELC 4742 (KLR)", Case Analysis (2021). Not stated in the judgment (plaint dated October 7, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4742/eng@2021-03-04

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