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ELCDismissedNot stated in the judgment (notice of motion dated 14th December, 2023 in a pending suit)· [2024] KEELC 1741 (KLR)

Rithara v Rithara (Enviromental and Land Originating Summons E015 of 2023) [2024] KEELC 1741 (KLR)

Environment and Land Court
11 April 2024
1,156 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Meru court refused to protect a man's 30-year occupation of family land because he had no documents proving his claim to it.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (C.K Yano, J) determined a notice of motion dated 14th December 2023 by the plaintiff/applicant, Bernard Miriti Rithara, seeking a temporary injunction against the defendant and an order of inhibition over 2 acres of land parcel No. Abogeta/U-Chure/469 pending the hearing of the suit. The applicant, the defendant's younger brother, alleged that in 1992 he redeemed a debt owed to the Agricultural Finance Corporation that threatened the suit land with auction, and that the respondent compensated him by giving him 2 acres and putting him into possession, which he claimed to have enjoyed continuously since 1992. He claimed to have developed the land with coffee, tea, bananas and other crops, and pleaded both a compensatory arrangement and adverse possession. The respondent opposed the application, denying the claimed arrangement, disputing that any documents proved payment of the AFC loan, and contending the suit was defective and brought against the wrong party. The court first struck out the respondent's submissions for having been drawn and filed by an unqualified person contrary to Section 33 of the Advocates Act. Applying the Giella v Cassman Brown principles, the court found the land registered in the defendant's name, noted the inconsistency in the applicant's case between permissive possession and adverse possession, and observed that no document supported the alleged arrangement. It held there was no prima facie case with probability of success, and that any damage was quantifiable in damages, noting the applicant could still seek registration by adverse possession at trial. The motion was dismissed with costs.

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success

Holding

No prima facie case was established

Reasoning

The suit land is registered in the defendant's name. The applicant's case was internally inconsistent: he claimed he was put into possession with the respondent's permission as compensation for repaying an AFC loan, while simultaneously claiming adverse possession from continuous occupation. He exhibited no document supporting the alleged arrangement or agreement with the respondent, and no proof of payment of the loan. On the affidavit evidence the court concluded the prima facie case threshold was not met.

p. 2
02

Whether irreparable injury not compensable by damages would be suffered

Holding

Any damage suffered can be quantified and compensated in damages

Reasoning

The court held that damages would be an adequate remedy for the applicant. Further, the applicant could still be registered as owner of the 2 acres if, upon full trial, he proves acquisition by adverse possession. The balance of convenience test was therefore unnecessary to determine given the failure on the first two Giella limbs.

p. 2
03

Validity of submissions filed by a non-advocate

Holding

The respondent's submissions were void ab initio and struck out

Reasoning

The respondent's submissions dated 9th February 2024 were drawn and filed by Michael Kung'u Kigia, who is not an advocate. Section 33 of the Advocates Act prohibits such representation. The court declared the submissions void ab initio and struck them out from the record, leaving only the applicant's submissions for consideration.

p. 2

Legal principles established

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  • The principles for granting an interlocutory injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not adequately compensable by damages, and balance of convenience if in doubt
  • Submissions drawn and filed by a person who is not an advocate are void ab initio contrary to Section 33 of the Advocates Act and will be struck out

Court orders

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  1. 1.The respondent's written submissions filed by an unqualified person are struck out from the record
  2. 2.The notice of motion dated 14th December, 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(e)
  • Civil Procedure RulesOrder 40 Rules 1 & 2; Order 51 Rule 1
  • Land Registration ActSection 68
  • Advocates ActSection 33

Cases cited (1)

  • Giella V Cassman Brown & Co. Ltd
    (1973) EA 358
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 40 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules; Section 68 of the Land Registration Act

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, "Rithara v Rithara (Enviromental and Land Originating Summons E015 of 2023) [2024] KEELC 1741 (KLR)", Case Analysis (2024). Not stated in the judgment (notice of motion dated 14th December, 2023 in a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1741/eng@2024-04-11

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