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ELCPartially AllowedEnvironment & Land Case E004 of 2023· [2023] KEELC 17505 (KLR)

Kubai v Kubai (Sued as the Legal Representative of the Estate of Kubai Baimpwi - Deceased)

Environment and Land Court
24 May 2023
1,381 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 protected a 39-year occupier from eviction, but only for six months and only if she paid a Kshs.250,000 damages undertaking.

What this practically means

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Executive summary

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This is an interlocutory ruling by C.K. Nzili, J of the Environment and Land Court at Meru in an environment and land case between Samuel Kubai (plaintiff) and Miriam Kabiria Kubai, sued as legal representative of the estate of Kubai Baimpwi (deceased). The applicant sought a temporary injunction and an inhibition order restraining the respondent from interfering with her possession, occupation and utilization of L.R No. Kiegoi/Kinyanka/1348, plus an order for a scene visit by the executive officer and Igembe South Sub-County Surveyor. She deponed that she entered the land in 1983-1984 under sale agreements with the deceased, built a permanent homestead, occupied it for 39 years, and faced threatened forced eviction on February 28, 2023 after succession proceedings omitted her interest and the probate court declined jurisdiction over land disputes. Applying the Giella v Cassman Brown test as elaborated in Mrao, Hosea Kiplagat and Nguruman, the court found a prima facie case established: entry appeared permissive, occupation was long-standing, and a caution and probate objection demonstrated a consistent claim of right. The threat of eviction without any court order made the apprehension of interference real, imminent and demonstrated, and the balance of convenience favoured preservation pending the originating summons. The court granted the temporary injunction and inhibition for six months only, conditioned on the applicant filing an undertaking as to damages of Kshs.250,000/= within 14 days, failing which the orders lapse. The prayer for a locus in quo visit was refused, the applicant being directed to invoke the land registrar's or surveyor's powers over the boundary dispute. No costs order was made.

Key legal issues

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01

Whether a prima facie case was established for temporary injunction and inhibition

Holding

Yes - permissive entry, long occupation, a caution filed in 2009 and a probate objection demonstrated a right or interest in the land warranting rebuttal

Reasoning

The court applied the Giella test and Mrao definition of a prima facie case. The applicant's entry appeared permissive and consented to by the respondent; occupation since 1983, a caution lodged on April 8, 2009 and an objection in the succession proceedings showed a consistent claim of right. Following Hosea Kiplagat, the court made no definitive findings of fact at the interlocutory stage.

p. 3
02

Irreparable harm and balance of convenience

Holding

The apprehension of eviction was real, imminent and demonstrated; damages would not suffice and the balance of convenience favoured preservation of the property

Reasoning

The respondent had no eviction order and had threatened forced eviction on February 28, 2023. The applicant, in occupation with a homestead and a family, faced danger of interference with her rights. The court held the loss likely to be suffered was not adequately compensable and preservation pending the originating summons tilted the balance of convenience in the applicant's favour.

p. 3
03

Whether the court should order a locus in quo visit by the executive officer and surveyor

Holding

Refused - boundary disputes fall within the statutory mandate of the land registrar or surveyor, not the court

Reasoning

The applicant sought a scene visit to capture acreage, occupants, fencing and boundaries. The court held that a boundary dispute is not a dispute for the court and directed the applicant to invoke the powers of the land registrar or surveyor instead, declining to exercise its discretion for the scene visit.

p. 3

Legal principles established

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  • An inhibition order under the Land Registration Act is in the nature of a prohibitory injunction and is granted to preserve property in dispute.
  • At the interlocutory stage an applicant need not establish title so long as there is a fair and bona fide question to be tried on the rights over the land.

Court orders

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  1. 1.Temporary order of injunction restraining the defendant, her family members, agents, assignees and servants from dealing with or interfering with the applicant's quiet possession, occupation and utilization of L.R No. Kiegoi/Kinyanka/1348
  2. 2.Inhibition order over the suit land, both to last for a period of six months only
  3. 3.Applicant to file an undertaking as to damages for Kshs.250,000/= within 14 days, failing which the orders shall lapse
  4. 4.Request for a scene visit to the locus in quo declined; applicant at liberty to invoke the powers of a land registrar or surveyor regarding the boundary dispute

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
  • Land Registration Actsections 68-71

Cases cited (4)

  • Giella vs Cassman Brown
    (1973) E.A 358

    Three ingredients for temporary injunction: prima facie case, irreparable loss, balance of convenience

  • Mrao Ltd v First American Bank of Kenya
    (2003) eKLR

    Definition of a prima facie case

  • Hosea Kiplagat & 6 others v NEMA & others
    (2015) eKLR

    Court makes no definitive findings of fact or law at interlocutory stage

  • Nguruman Ltd v Jan Bonde Nielsen & others
    (2014) eKLR

    Balance of convenience and adequacy of damages in interlocutory injunctions

Jurisdiction invoked
Order 40 of the Civil Procedure Rules and sections 68-71 of the Land Registration Act (interlocutory jurisdiction of the ELC over land)

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, "Kubai v Kubai (Sued as the Legal Representative of the Estate of Kubai Baimpwi - Deceased)", Case Analysis (2023). Environment & Land Case E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17505/eng@2023-05-24

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