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ELCDismissedNotice of Motion dated 10th June, 2021 (arising out of Originating Summons dated May 19, 2021)· [2022] KEELC 155 (KLR)

Muturi & another v Kariuki (Environment & Land Case E003 of 2021) [2022] KEELC 155 (KLR)

Environment and Land Court
16 June 2022
JOJ. O. OLOLA
1,315 words in judgment
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The bottom line

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The Nyeri Environment and Land Court refused to stop a long-term occupier from using land, because the registered owners had never actually occupied or controlled it.

What this practically means

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Executive summary

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By a Notice of Motion dated 10th June, 2021, Bernard Mwangi Muturi and Wachira Muturi, the registered proprietors of parcel Aguthi/Gathaithi/166, sought a temporary injunction restraining Wilson Wambugu Kariuki from interfering with the land pending the hearing of an Originating Summons in which Wambugu claims ownership by adverse possession since 1967. The Applicants alleged that the Respondent was clearing the land to plant coffee bushes, had no interest in the property, and had wasted it by cutting down mature trees, having been no more than a caretaker appointed by their late father. The Respondent opposed the application, asserting open, peaceful and uninterrupted possession since 1967, while the Applicants never utilized the land despite registration in 1981. Applying Order 40 Rule 1 of the Civil Procedure Rules and the Giella v Cassman Brown conditions as informed by the Mrao Limited definition of a prima facie case, the court found that the Applicants had never occupied or controlled the suit property; their own affidavits confirmed the Respondent leased portions of it, including to one Francis Ngunjiri Thuo since 1990, evidencing exercise of control. The court held the intended planting of coffee did not place the property in danger of waste or alienation, and that the Respondent, in long possession, would be the party prejudiced by an injunction. The court found no merit in the motion, dismissed it and awarded costs to the Respondent.

Key legal issues

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01

Whether the Applicants established a prima facie case warranting a temporary injunction

Holding

No prima facie case was established; the Applicants' own pleadings showed they had never occupied or controlled the suit property, which was in the Respondent's use and control

Reasoning

The Applicants asserted ownership by transmission from their late father but their own affidavit admitted they had never occupied the land and that the Respondent leased portions of it to third parties. The court reasoned that the Respondent's ability to lease portions demonstrated exercise of control, and the Applicants failed to show any right apparently infringed so as to call for an explanation or rebuttal from the Respondent.

p. 3
02

Whether the suit property was in danger of being wasted, damaged or alienated under Order 40 Rule 1

Holding

The mere intention to plant coffee bushes on land already under the Respondent's use and control did not amount to a danger of waste or alienation

Reasoning

The court found that the Applicants had not shown they ever used or were in occupation or control of the suit property throughout. Given the Respondent's long possession and leasing of the land, the threatened planting of coffee could not constitute waste or alienation; rather the Respondent would suffer prejudice if injuncted pending the adverse possession trial.

p. 3

Legal principles established

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  • The conditions for the grant of a temporary injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not adequately compensable in damages, and balance of convenience where the court is in doubt
  • A prima facie case is a genuine and arguable case showing an apparent infringement of a right and a probability of success at trial, higher than an arguable case

Court orders

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  1. 1.The Notice of Motion dated 10th June, 2021 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (2)

  • Giella v Cassman Brown & Company Limited
    [1973] EA 358
  • Mrao Limited v First American Bank of Kenya Limited & 2 others
    [2003] eKLR
Jurisdiction invoked
Order 40 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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Cite this brief

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Cite this brief

Caselaw, "Muturi & another v Kariuki (Environment & Land Case E003 of 2021) [2022] KEELC 155 (KLR)", Case Analysis (2022). Notice of Motion dated 10th June, 2021 (arising out of Originating Summons dated May 19, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/155/eng@2022-06-16

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