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ELCDismissedEnvironment & Land Case E002 of 2022· [2023] KEELC 19210 (KLR)

Warui v Wanjohi & another

Environment and Land Court
28 July 2023
JOJ. O. Olola
1,625 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who never completed the transfer lost his bid to block the registered owners from dealing with the property.

What this practically means

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Executive summary

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By Notice of Motion dated November 25, 2022, Christopher Muchomba Warui sought a temporary injunction restraining Jennifer Njeri Wanjohi and Francis Wachira Maina from occupying, selling, charging or otherwise interfering with 1.5 acres comprised in LR No Konyu/Baricho/2388. The Applicant claimed he had occupied and developed the portion since purchasing it from Abraham Mbuthia Muriithi in November 1995, and that the 2nd Respondent's registration as proprietor in 2022 was fraudulent and intended to deprive him of his entitlements, his rights having crystallised by open and exclusive possession. Both Respondents opposed. The 1st Respondent denied the Applicant's occupation, asserted proprietorship since 1995 and a subsequent transfer to the 2nd Respondent. The 2nd Respondent, a purchaser for value, relied on due diligence, a clean title issued on September 2, 2022, and his fencing and building on the land, noting the Applicant owns adjoining parcels. Applying Giella v Cassman Brown and Mrao Limited, J. O. Olola, J found the Applicant's own material fatal: the 1995 sale never culminated in transfer, the vendor's registration was itself tainted by a fraud conviction for intermeddling with his deceased father's estate, and the Applicant's main suit is premised on adverse possession against both Respondents, presupposing the 1st Respondent's prior proprietorship. The court was not persuaded a prima facie case with probability of success existed and dismissed the application with costs to the respondents on July 28, 2023.

Key legal issues

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01

Whether the Applicant established a prima facie case for a temporary injunction

Holding

No prima facie case was made out; the Applicant's own material showed his vendor never transferred the 1.5 acres, the vendor's registration was itself suspect, and the Applicant knew the 1st Respondent had been proprietor, his claim being one of adverse possession

Reasoning

The Applicant's sale agreement of 1995 with Abraham Mbuthia Muriithi never resulted in transfer of the 1.5 acres. The vendor was convicted of fraud relating to intermeddling with his deceased father's estate. The Applicant's main suit is premised on adverse possession against both Respondents, which presupposes the 1st Respondent was at one time proprietor. On that material the court found no apparent infringement of a right calling for rebuttal.

p. 4

Legal principles established

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  • The Giella v Cassman Brown conditions govern the grant of interlocutory injunctions: prima facie case, irreparable injury, and balance of convenience
  • A prima facie case in a civil application is a genuine and arguable case showing a right apparently infringed so as to call for an explanation or rebuttal

Court orders

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  1. 1.The Notice of Motion dated November 25, 2022 seeking a temporary injunction is dismissed
  2. 2.Costs of the application awarded to the respondents
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a pending suit)

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, "Warui v Wanjohi & another", Case Analysis (2023). Environment & Land Case E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19210/eng@2023-07-28

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