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ELCDismissedEnvironment & Land Case E017 of 2022· [2023] KEELC 16968 (KLR)

Mburu v Gacheru & 4 others

Environment and Land Court
27 April 2023
2,773 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff, registered proprietor of Nyandarua/Turasha/444 through a succession cause in the Naivasha High Court, sued the Defendants seeking declarations of entitlement to possession, that the Defendants are trespassers, a permanent injunction, eviction and general damages for trespass. She simultaneously moved for a temporary injunction restraining the Defendants from accessing, entering, remaining on or interfering with the suit property. The Defendants opposed, asserting that the Plaintiff's late husband sold the property to the 1st Defendant's late husband between 1989 and 1998, that they took possession in 1990, and that they had acquired title by adverse possession, filing a counterclaim seeking cancellation of the Plaintiff's title and transfer of the land. Justice Y. M. Angima framed two issues: whether the Plaintiff satisfied the requirements for a temporary injunction, and costs. Applying Giella v Cassman Brown and Nguruman, the court held the Plaintiff failed to demonstrate a prima facie case with probability of success, since the alleged sale and the adverse possession counterclaim were triable issues, and both sides agreed the Defendants had occupied the land since the 1990s during the original owner's lifetime. The Plaintiff also adduced no evidence of irreparable loss incapable of monetary quantification. Further, an injunction restraining parties already in occupation would amount to eviction at the interlocutory stage, since a restraining injunction is forward looking. The motion was dismissed with costs to the Defendants, and the suit fixed for pre-trial directions on May 31, 2023.

Key legal issues

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01

Prima facie case with probability of success

Holding

Plaintiff failed to establish a prima facie case; the alleged sale and the adverse possession counterclaim are triable issues.

Reasoning

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.

02

Irreparable loss

Holding

Plaintiff adduced no evidence of irreparable injury incapable of monetary quantification.

Reasoning

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.

p. 5
03

Injunction against persons already in occupation

Holding

A restraining injunction cannot issue against parties already in occupation, as it would amount to eviction at the interlocutory stage.

Reasoning

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.

p. 6
04

Balance of convenience

Holding

Not necessary to decide, but Defendants would suffer greater hardship given long occupation and development.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Plaintiff's notice of motion dated June 27, 2022 is hereby dismissed with costs to the Defendants.
  2. 2.The suit is hereby fixed for pre-trial directions on May 31, 2023.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 rule 1; Order 50 rule 1
  • Civil Procedure ActSections 1A, 1B, 3A, 27
  • Limitation of Actions ActCap 22

Cases cited (5)

  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358

    Principles for grant of temporary injunction and costs on injunction applications

  • Mrao Limited v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125

    Definition of prima facie case with probability of success

  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [-2014] eKLR

    Sequencing of injunction principles and meaning of irreparable injury

  • Stanley Kirui v Westlands Pride Limited
    [2013] eKLR

    A restraining injunction is forward looking and cannot prevent what has already taken place

  • Joseph Musyoki Mwania v Musyoki Nzivu
    [2021] eKLR

    A restraining injunction is forward looking and cannot prevent what has already taken place

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

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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, "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.