Muriakiara v Ngugi (Enviromental and Land Originating Summons E009 of 2023 & Environment & Land Case E11B of 2024 (Consolidated)) [2024] KEELC 6645 (KLR)
The bottom line
#A Kenyan father claiming his daughter's land by adverse possession failed to win an injunction, but the court kept the status quo pending full trial.
What this practically means
#Executive summary
#Key legal issues
#Temporary injunction - prima facie case
Plaintiff failed to establish a prima facie case
The Plaintiff claimed occupation since 2009 but tendered no evidence of entry or occupation; his own photographs showed the Defendant's Elma Apartments; the Defendant's claim that he resides on Dagoretti/Kinoo/3976 was uncontroverted. On the Giella and Nguruman tests, the Plaintiff failed at the first hurdle and the court could not reach irreparable harm or balance of convenience in his favour.
Review of interim orders
Prayer for review disallowed; order spent
The interim order issued on 23/10/2023 subsisted only until the inter partes hearing, which had taken place. The order therefore spent itself and there was no basis to review it under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
Striking out of Originating Summons
Application to strike out dismissed
Striking out is a draconian jurisdiction to be used sparingly and in the clearest of cases. An adverse possession claim raises a reasonable cause of action; the Plaintiff must prove it at trial. Natural justice requires that a litigant not be driven from the seat of justice without a hearing.
Jurisdiction over alleged perjury
Court lacks jurisdiction over the criminal offence of perjury
The Court's jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act covers environment and land use, occupation and title. Perjury under Section 108 of the Penal Code is a criminal matter outside that mandate.
Legal principles established
#- An adverse possession claim on its face raises a reasonable cause of action and cannot be struck out summarily
- If no prima facie case is established, irreparable injury and balance of convenience need not be considered
Court orders
#- 1.The Plaintiff's Notice of Motion dated 19/10/2023 is allowed in terms of maintaining status quo
- 2.The Defendant's Notice of Motion dated 11/12/2023 is unmerited and dismissed
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muriakiara v Ngugi (Enviromental and Land Originating Summons E009 of 2023 & Environment & Land Case E11B of 2024 (Consolidated)) [2024] KEELC 6645 (KLR)", Case Analysis (2024). ELCL E009 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6645/eng@2024-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.