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)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with a probability of success
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
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.
Whether damages would be an adequate remedy
Damages would not be an adequate remedy given the school and developments on the land
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.
Whether the balance of convenience favours granting the injunction
The balance of convenience favours maintaining the status quo in registration, occupancy and development for 12 months
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.
Legal principles established
#- 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
#- 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.Pending the hearing and determination of this suit, no new construction shall be undertaken on Kabete/Lower Kabete/5030
- 3.Pending the hearing and determination of this suit, the plaintiff shall not be evicted from Kabete/Lower Kabete/5030
- 4.Unless extended by the court, the status quo interlocutory orders shall expire after 12 months
- 5.Costs of the application shall be in the cause
- Jurisdiction invoked
- Environment and Land Court jurisdiction; originating summons under section 38 of the Limitation of Actions Act (adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.