Mburu v Gacheru & 4 others
The bottom line
#A Kenyan landowner who bought land through succession cannot evict people who have occupied it since the 1990s using an interim injunction.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case with probability of success
Plaintiff failed to establish a prima facie case; the alleged sale and the adverse possession counterclaim are triable issues.
Both parties agreed the Defendants took possession in the 1990s during the lifetime of the late Mburu, who never sought eviction. The alleged sale agreements and forgery claim, and the adverse possession counterclaim under the Limitation of Actions Act, are matters for trial. The Plaintiff's registration through a succession cause in which the Defendants did not participate did not establish a prima facie case.
Irreparable loss
Plaintiff adduced no evidence of irreparable injury incapable of monetary quantification.
Apart from a bare assertion that she would suffer irreparable loss, the Plaintiff tendered no evidence of the nature and extent of the alleged loss, nor that it was incapable of monetary quantification, as required by the Nguruman threshold.
Injunction against persons already in occupation
A restraining injunction cannot issue against parties already in occupation, as it would amount to eviction at the interlocutory stage.
The Defendants had been in occupation since the 1990s, a fact conceded by both sides. An injunction restraining them from accessing, entering or remaining on the suit property would effectively evict them, a remedy available only after a full hearing. A restraining injunction is forward looking and cannot undo existing occupation.
Balance of convenience
Not necessary to decide, but Defendants would suffer greater hardship given long occupation and development.
Having failed the first two Giella principles, the third need not be considered. Even if considered, the Defendants' long occupation, construction of houses and development of the land meant they stood to suffer greater hardship from the injunction than the Plaintiff from its denial.
Legal principles established
#- A restraining injunction is forward looking and cannot stop or prevent what has already taken place.
- Costs follow the event; on an injunction application, costs in the cause where allowed and costs against the applicant where dismissed.
Court orders
#- 1.The Plaintiff's notice of motion dated June 27, 2022 is hereby dismissed with costs to the Defendants.
- 2.The suit is hereby fixed for pre-trial directions on May 31, 2023.
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act); interlocutory application under Order 40 rule 1 and Order 50 rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B & 3A of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mburu v Gacheru & 4 others", Case Analysis (2023). Environment & Land Case E017 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16968/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.