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ELCDismissedELC E017 OF 2022 (OS)· [2023] KEELC 53 (KLR)

Gituma & another v Manene & another (Being Sued as the Legal Representatives and Administrators of the Estate of Manene Tumanga) (Environment & Land Case E017 of 2022) [2023] KEELC 53 (KLR)

Environment and Land Court
18 January 2023
CNC.K. Nzili
1,110 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 refused to block transactions over disputed family land because the adverse possession claimants produced no strong evidence of winning at trial.

What this practically means

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Executive summary

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The plaintiffs/applicants moved the court by notice of motion dated October 31, 2022 seeking prohibitory orders against any transactions by the defendants or the Deputy Registrar over LR No Abothuguchi/Mariene/597, pending hearing of their originating summons claiming the suit property by adverse possession. The applicants asserted they had lived on the land since the 1950s and feared being rendered homeless if it was transferred or distributed through a succession cause. The defendants, through a replying affidavit of Ibrahim Mutea Manene, opposed the application, asserting their late father was registered as proprietor in 1965, that the applicants' occupation had been resisted throughout, and that the issues had been litigated in the land disputes tribunal, a succession protest dismissed in Githongo Court Succession Cause No 58 of 2018, and Githongo ELC proceedings. The applicants relied on authorities including Mrao Ltd and Nguruman Ltd to argue a prima facie case, irreparable injury and balance of convenience; the defendants relied on Giella v Cassman Brown and alleged unclean hands. A further affidavit filed without leave was excluded. Framing the question as whether to grant prohibitory orders at the interlocutory stage, the court applied the Mrao definition of a prima facie case and the Nguruman sequential thresholds, found no prima facie case, no evidence of loss not compensable in damages, and held the balance of convenience favoured refusal given prior litigation. The application was dismissed with costs and parties directed to comply with Order 11 and list the suit for hearing.

Key legal issues

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01

Whether the applicants established a prima facie case for a prohibitory order over the suit property

Holding

No prima facie case was made; the applicants produced no evidence of developments or loss likely to be suffered that could not be compensated by damages

Reasoning

The court applied the Mrao definition of a prima facie case and the Nguruman requirements. The applicants' claim of adverse possession since the 1950s was contested, the defendants showed the land had been litigated previously and the protest in succession dismissed, and the applicants demonstrated only speculative injury. The balance of convenience also favoured refusal given the prior litigation.

p. 3
02

Whether the balance of convenience favoured granting the prohibitory orders

Holding

It did not; the existence of previous litigation tilted the balance towards refusing the orders

Reasoning

Given the prior determinations in the land disputes tribunal, the succession protest and Githongo ELC proceedings, the court found the balance of convenience lay in not issuing the prohibitory orders at the interlocutory stage.

p. 3

Legal principles established

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  • A party seeking a prohibitory order must establish a prima facie case with a probability of success at the hearing
  • Prohibitory reliefs require more than speculative injury, unfounded fear or apprehension
  • At interlocutory stage, the three Giella pillars must be applied separately, distinctly and sequentially

Court orders

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  1. 1.The notice of motion dated October 31, 2022 is dismissed with costs
  2. 2.Parties to comply with Order 11 of the Civil Procedure Rules and list the suit for hearing

Authorities

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Legislation

  • Civil Procedure RulesOrder 11

Cases cited (8)

  • Samuel Njeru Daniel vs James Njeru Thiga & others
    (2017) eKLR
  • Mrao Ltd vs First American Bank Ltd & 2 others
    (2003) eKLR
  • Robert Ochanda Abuya vs KPLC Ltd
    (2021) eKLR
  • Nguruman Ltd vs Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    (2018) eKLR
  • SKEK Cosmetics Ltd vs Family Bank Ltd & another
    (2020) eKLR
  • JM vs SMK & 4 others
    (2022) eKLR
  • Giella vs Cassman Brown Co Ltd
    (1933) 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under an originating summons for adverse possession; interlocutory application under 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, "Gituma & another v Manene & another (Being Sued as the Legal Representatives and Administrators of the Estate of Manene Tumanga) (Environment & Land Case E017 of 2022) [2023] KEELC 53 (KLR)", Case Analysis (2023). ELC E017 OF 2022 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/53/eng@2023-01-18

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