Shinini & another v Gachanja & another
The bottom line
#A Kenyan court stopped land buyers from fencing or developing disputed land until trial, because the registered owners' title gave them the stronger interim position.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants established a prima facie case
Yes - as registered owners of the suit land, with the plaintiffs' claim being adverse possession which must be proven at trial, the defendants have a prima facie case
The court noted it was not disputed that the defendants are registered owners evidenced by a copy of the title deed. The plaintiffs claim ownership by adverse possession, which requires proof at trial. The plaintiffs' assertions of occupation since 2006 and extensive development were unsupported by evidence; the photographs showed bare land with no constructions.
Whether the plaintiffs' fencing and development should be restrained
Yes - the erection of the perimeter fence has the potential effect of altering the status of the suit land, so plaintiffs are restrained from fencing and developing pending trial
Although damages adequacy was uncertain, the court was persuaded that the fence could alter the status of the land. Balancing the existing orders restraining eviction of the plaintiffs, the court held the plaintiffs have no colour of right to further develop the land in a manner that alters its status.
Evidentiary value of photographs without a certificate under the Evidence Act
The objection was effectively overtaken by the plaintiffs' own admission in submissions that they erected the perimeter fence
The plaintiffs argued the photographs were inadmissible for lack of a certificate under sections 65(8), 106 and 106B of the Evidence Act. However, the plaintiffs admitted in their written submissions to erecting the perimeter fence, so the defendants' claim of new developments stood admitted regardless of the photographs' admissibility.
Legal principles established
#- The requirements for an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
- A registered proprietor facing an adverse possession claim has a prima facie case at interlocutory stage since adverse possession must be proven at trial
Court orders
#- 1.Pending the hearing and determination of the suit, the plaintiffs/respondents are restrained either by themselves, their agents, servants and/or employees from fencing and developing land parcel known as Narok/Sakutiek/365
- 2.The OCPD Narok is directed to ensure compliance of the orders
- 3.Costs to be in the cause
- Jurisdiction invoked
- Articles 23(1), (3), 40 and 159 of the Constitution; section 1A and 3A of the Civil Procedure Act; Order 40 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shinini & another v Gachanja & another", Case Analysis (2023). Environment & Land Case E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20123/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.