Rithara v Rithara (Enviromental and Land Originating Summons E015 of 2023) [2024] KEELC 1741 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with probability of success
No prima facie case was established
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.
Whether irreparable injury not compensable by damages would be suffered
Any damage suffered can be quantified and compensated in damages
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.
Validity of submissions filed by a non-advocate
The respondent's submissions were void ab initio and struck out
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.
Legal principles established
#- 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
#- 1.The respondent's written submissions filed by an unqualified person are struck out from the record
- 2.The notice of motion dated 14th December, 2023 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.