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ELCPartially Allowed· [2024] KEELC 5841 (KLR)

Thuku v Kangethe & 2 others (All three sued in their capacity as Administrators of the Estate of Francis Felix Kangethe s/o Mbithi while Loise Gachiku Kinuthia is also sued as the registered proprietor holding the suit property in trust for beneficiaries of the said Estate) (Enviromental and Land Originating Summons E011 of 2023) [2024] KEELC 5841 (KLR)

Environment and Land Court
7 August 2024
1,318 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued by originating summons dated 8/8/2023 claiming title to Kabete/Lower Kabete/5030, a subdivision of Kabete/Lower Kabete/43, by adverse possession, alleging occupation since 2006 and operation of New Dawn School on the land. He then moved by notice of motion dated 31/10/2023 for interlocutory injunctive orders restraining the defendants from dealing with, disposing of, entering or subdividing the suit property pending trial. The defendants opposed, contending the applicant concealed his failed 2020 application in the succession cause of the late Francis Felix Kangethe; that the land is trust property whose trusts under section 28 of the Land Registration Act override other interests; that a similar originating summons is pending before the Kiambu Chief Magistrate's Court, rendering this suit sub judice under section 6 of the Civil Procedure Act; and that the claim is statute-barred. Applying the Giella v Cassman Brown criteria, the court found the respondents had not adequately contested the occupation and development allegations, and that damages would not be an adequate remedy were the applicant and the school children evicted and developments demolished. It also observed that an adverse-possession originating summons under section 38 of the Limitation of Actions Act lies in the Environment and Land Court, and that the sub judice and limitation objections were not substantiated. Resolving the motion on the balance of convenience, the court preserved the status quo for 12 months: no register dealings, no new construction, and no eviction pending hearing and determination of the suit, with costs in the cause.

Key legal issues

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01

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

Holding

Doubts were raised as to the timing of the alleged adverse possession, but the respondents did not adequately contest the applicant's occupation, development of the land and the notice to vacate

Reasoning

The applicant alleged occupation since 2006 and a school on the land. The court noted the succession ruling placed doubt on whether he was in adverse possession in 2008, but the respondents failed to adequately contest the occupation and development allegations and did not dispute issuing a notice to vacate, which implied occupation.

p. 2
02

Whether damages would be an adequate remedy

Holding

Damages would not be an adequate remedy given the school and developments on the land

Reasoning

The applicant deposed that he had developed the suit land and runs New Dawn School on it. That fact was not contested. The court doubted that damages could compensate the applicant and the school-going children if they were evicted and the developments demolished.

p. 3
03

Whether the balance of convenience favours granting the injunction

Holding

The balance of convenience favours maintaining the status quo in registration, occupancy and development for 12 months

Reasoning

Being in doubt, the court resorted to the third Giella criterion. It ordered preservation of the status quo for 12 months, expecting the plaintiff to prosecute his claim to determination within that period, after which the orders would lapse unless extended.

p. 3

Legal principles established

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  • An originating summons for adverse possession under section 38 of the Limitation of Actions Act is filed and prosecuted in the superior court, i.e. the Environment and Land Court
  • The last suit filed is the one that suffers the defect of sub judice

Court orders

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  1. 1.Pending the hearing and determination of this suit, there shall be no dealings in the land register relating to Kabete/Lower Kabete/5030
  2. 2.Pending the hearing and determination of this suit, no new construction shall be undertaken on Kabete/Lower Kabete/5030
  3. 3.Pending the hearing and determination of this suit, the plaintiff shall not be evicted from Kabete/Lower Kabete/5030
  4. 4.Unless extended by the court, the status quo interlocutory orders shall expire after 12 months
  5. 5.Costs of the application shall be in the cause

Authorities

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Legislation

  • Land Actsection 152(E)
  • Land Registration Actsection 28
  • Civil Procedure Actsection 6
  • Limitation of Actions Actsection 38

Cases cited (1)

  • Giella v Cassman Brown & Co. Ltd
    (1975) EA 358
Jurisdiction invoked
Environment and Land Court jurisdiction; originating summons under section 38 of the Limitation of Actions Act (adverse possession)

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, "Thuku v Kangethe & 2 others (All three sued in their capacity as Administrators of the Estate of Francis Felix Kangethe s/o Mbithi while Loise Gachiku Kinuthia is also sued as the registered proprietor holding the suit property in trust for beneficiaries of the said Estate) (Enviromental and Land Originating Summons E011 of 2023) [2024] KEELC 5841 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5841/eng@2024-08-07

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