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ELCDismissedThika ELC Civil Case No 2 of 2021 (consolidated with Thika ELC Civil Case No 3 of 2021)· [2022] KEELC 3826 (KLR)

Karugu & another v Ngigi & 2 others (Environment & Land Case E002 & E003 of 2021 (Consolidated)) [2022] KEELC 3826 (KLR)

Environment and Land Court
15 July 2022
2,442 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Two related suits, Thika ELC Civil Case Nos 2 and 3 of 2021, arose from claims by Josephat Njuguna Karugu and Samuel Nyanjui Mbugua that they purchased portions of land parcel Ndeiya/Ndeiya/491, belonging to the estate of the late Felix Ngugi Karanja, and had acquired those portions by adverse possession. Their claims had previously been rejected in a succession cause in a judgment by Koome J dated February 15, 2008, which was upheld on appeal dismissed for want of prosecution, and eviction orders against them were granted by the High Court (Muchelule J) on June 21, 2021. The plaintiffs filed the present suits and applications dated January 15, 2021 seeking interlocutory injunctions restraining the estate from interfering with their occupation or implementing the succession cause orders. B M Eboso J applied the Giella v Cassman Brown criteria. He held that no prima facie case was established: the applications sought to stay the 2008 judgment and the eviction orders through parallel proceedings, amounting to an abuse of process, with the proper forum being the Succession Court or Court of Appeal. The plaintiffs had not shown when adverse possession commenced or crystallised, nor produced a formal sale contract and proof of full purchase price to support specific performance. Having themselves pleaded refund of purchase price and damages as alternatives, damages were not inadequate. The balance of convenience favoured orderly administration of justice. Both applications were dismissed with costs to the plaintiffs, and the two suits were consolidated with Thika ELC Civil Case No 2 of 2021 as the lead file.

Key legal issues

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01

Whether a prima facie case with a probability of success was demonstrated

Holding

No prima facie case was established; the suits sought to relitigate and stay matters decided in the succession cause

Reasoning

The plaintiffs' claims had already been litigated and rejected in the succession cause and on appeal. The court found the suits sought a stay of the High Court judgment of Koome J through parallel proceedings, which it held to be an abuse of process. The plaintiffs also failed to evidence the commencement and crystallisation of adverse possession or a formal sale contract with payment of full purchase price.

p. 5
02

Whether damages are an inadequate remedy

Holding

Damages and refund of purchase price, which the plaintiffs themselves pleaded as alternative reliefs, would suffice

Reasoning

Having themselves prayed for refund of purchase price and damages as alternative reliefs, the plaintiffs conceded that monetary remedies were available. The court saw no basis to find damages inadequate.

p. 5
03

Where the balance of convenience lies

Holding

The balance of convenience favours orderly administration of justice by not reviewing the High Court's eviction order through parallel injunctions

Reasoning

The court held that issuing parallel injunctive orders would amount to reviewing the eviction order of the High Court, contrary to orderly administration of justice.

p. 5

Legal principles established

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  • Where a party seeks to stay eviction orders issued by the High Court, the proper forum is the Succession Court or the Court of Appeal, not a parallel suit in the ELC
  • A purchaser claiming adverse possession must demonstrate when their occupancy as adverse possessor commenced and when their title crystallised

Court orders

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  1. 1.The two applications dated January 15, 2021 in Thika ELC Civil Case No 2 of 2021 and No 3 of 2021 are dismissed for lack of merit
  2. 2.The respective plaintiffs/applicants shall bear costs of the applications
  3. 3.The two suits are consolidated with Thika ELC Civil Case No 2 of 2021 as the lead file

Authorities

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Legislation

  • Civil Procedure ActNot specified

Cases cited (1)

  • Giella v Cassman Brown & Co Ltd
    EA 358
Jurisdiction invoked
Article 162(2)(b) of the Constitution / Environment and Land Court Act (original jurisdiction of the ELC over land disputes)

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, "Karugu & another v Ngigi & 2 others (Environment & Land Case E002 & E003 of 2021 (Consolidated)) [2022] KEELC 3826 (KLR)", Case Analysis (2022). Thika ELC Civil Case No 2 of 2021 (consolidated with Thika ELC Civil Case No 3 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3826/eng@2022-07-15

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