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ELCPartially AllowedEnvironment & Land Case E022 of 2022· [2023] KEELC 16570 (KLR)

Mwangi v Kinuthia & another

Environment and Land Court
28 March 2023
YAY. M. Angima
1,510 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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The Applicant, Daniel Kamau Mwangi, filed an originating summons under Section 7 of the Limitation of Actions Act and Order 37 rule 7 of the Civil Procedure Rules claiming adverse possession of eight parcels, Nyandarua/Mkungi/2853–2860, subdivisions of Nyandarua/Mkungi/6, asserting over 40 years of open, continuous occupation, development, and family burials on the land. Simultaneously he moved by notice of motion for a conservation order preserving the suit parcels and the rest of the original Parcel 6 from waste or disposal, and for the OCS Ndunyu Njeru Police Station to ensure compliance. The Respondents, said to be administrators of the registered owner, filed no response. YM Angima J framed three issues: entitlement to a conservation/preservation order, the enforcement mechanism, and costs. The court found the application 'strange' - no injunction against eviction was sought, no intended alienation was alleged, yet preservation of the wider Parcel 6 was sought. Although the factual foundation was uncontroverted, the applicant still had to demonstrate entitlement. Relying on Shivabhai Patel v Manibhai Patel, the court granted a preservation order in the nature of an inhibition under Section 68 of the Land Registration Act over the eight parcels only, expressly excluding the larger Parcel 6. The OCS prayer was refused; compliance was directed to the Land Registrar – Nyandarua County. Costs were made costs in the cause, and the suit was set down for pre-trial directions on June 5, 2023.

Key legal issues

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01

Whether a conservation/preservation order should issue pending the adverse possession suit

Holding

A preservation order in the nature of an inhibition under Section 68 of the Land Registration Act was granted over the 8 suit parcels only, not the larger Parcel 6.

Reasoning

The court found the application strange in three respects: no injunction against eviction was sought, no allegation of intended alienation was made, yet preservation of the wider Parcel 6 was sought. Uncontroverted facts did not relieve the applicant of demonstrating entitlement. The substratum of the suit - the 8 parcels claimed by adverse possession - warranted preservation by inhibition.

p. 3
02

Whether the OCS should enforce the order

Holding

Refused; compliance orders under Section 68 should be directed to the Land Registrar – Nyandarua County.

Reasoning

The court held that an OCS of a police station is not a competent person to ensure compliance with a preservation order made under Section 68 of the Land Registration Act, 2012. Such an order should be directed to the Land Registrar for registration and compliance.

p. 3
03

Costs of the application

Holding

Costs in the cause, given the application was unopposed and the main suit is pending.

Reasoning

Applying the general rule that costs follow the event under the proviso to Section 27 of the Civil Procedure Act, the court nonetheless noted the application was unopposed and the main suit pending hearing, and therefore directed that costs of the application be costs in the cause.

p. 3

Legal principles established

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  • The court is empowered to preserve property in dispute which may be in danger of being wasted, damaged or alienated during the pendency of a suit, and may do so by an order of inhibition under Section 68 of the Land Registration Act.
  • Even where an application is uncontroverted, the applicant must still demonstrate entitlement to the orders sought.
  • Costs follow the event unless the court, for good reason, directs otherwise.

Court orders

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  1. 1.An order of inhibition granted to prevent any dealings with parcel Nos Nyandarua/Mkungi/2853 – 2860 pending the hearing and determination of the suit or until further orders of the court.
  2. 2.The Land Registrar – Nyandarua County to ensure compliance with the said order until conclusion of the suit or further orders of the court.
  3. 3.Costs of the application to be in the cause.
  4. 4.Suit to be mentioned on June 5, 2023 for pre-trial directions.

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Civil Procedure Rules, 2010Order 37 rule 7; Order 40 rules 1, 2, 3, 4 & 5; Order 51 rule 1
  • Civil Procedure ActSections 1A, 1B, 3A and 27 (proviso)
  • Land Registration Act, 2012Section 68

Cases cited (2)

  • Shivabhai Patel v Manibhai Patel
    [1957] EA 907

    The court has a duty to preserve property which may be in issue pending resolution of the dispute.

  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd
    [1967] EA 287

    A successful party should ordinarily be awarded costs unless the court directs otherwise.

Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act (Cap 21); Order 40 and Order 51 of the Civil Procedure Rules, 2010; Section 68 of the Land Registration Act, 2012

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, "Mwangi v Kinuthia & another", Case Analysis (2023). Environment & Land Case E022 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16570/eng@2023-03-28

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