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ELCPartially AllowedNotice of Motion dated 5th November 2024 (suit relating to Dagoretti/Riruta/854)· [2025] KEELC 88 (KLR)

Mbugua v Issa & Muhia Administrators of the Estate of Issa Mbugua Salim & 2 others (Application E066 of 2024) [2025] KEELC 88 (KLR)

Environment and Land Court (Kenya)
16 January 2025
4,460 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked the sale and eviction of land occupied for over 23 years, protecting a potential adverse possession claim until the full case is heard.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Leonard Munyua Mbugua, moved the court by Notice of Motion dated 5th November 2024 under Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act, seeking temporary injunctions restraining the Defendants from selling, evicting him from, transferring, disposing of or dealing with the portion of Dagoretti/Riruta/854 (now Nairobi/Block66/854, proposed Plot C) which he has occupied since 2001. He relied on a written sale agreement dated 30th November 2001 with Abdul Rahaman Issa Mbugua, a deceased beneficiary of the estate of Hawa Njeri Issa, the registered owner, contending he had occupied the plot for over 23 years and had a good adverse possession claim. The Respondents opposed, raising a preliminary objection and contending that claims in contract and adverse possession are mutually inconsistent; that the vendor had no title and no grant of administration had been issued when the sale agreement was executed, rendering it illegal, void and of no effect; and that the Applicant's occupation had been interrupted. Citing Mrao v First American Bank and Nguruman, the court framed two issues: prima facie case and irreparable loss. It found the Applicant's occupation since 2001 uncontroverted, exceeding the statutory 12-year period, and held he had established a prima facie case with probability of success, while noting full proof of adverse possession awaits plenary hearing. On irreparable loss, the court held eviction would defeat the adverse possession claim, which is anchored on occupation. The application was allowed; a temporary injunction was granted pending hearing and determination of the case, with costs of the application to abide the outcome of the suit.

Key legal issues

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01

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

Holding

Yes - the Applicant demonstrated long occupation exceeding the statutory 12-year period, giving rise to an arguable adverse possession claim

Reasoning

The court held the Applicant's averments on entry and occupation since 2001 were uncontroverted; the Respondents' case rested solely on the alleged illegality of the sale agreement. Because the Applicant was not seeking to enforce the agreement but relied on it only as the basis of entry, the court found the factual matrix demonstrated a prima facie case, leaving proof of adverse hostility of possession to plenary hearing.

p. 6
02

Whether the Applicant would suffer irreparable loss if the injunction is not granted

Holding

Yes - eviction would destroy the adverse possession claim, which is anchored on possession

Reasoning

The court noted the Respondents' surveying activities and proposed subdivision re-describing the Applicant's plot from D to C, which were uncontroverted. If the Applicant is evicted, his occupation, possession and use - the foundation of adverse possession - would be defeated, rendering the claim redundant and causing loss not compensable in damages.

p. 8

Legal principles established

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  • A prima facie case in a civil application is a genuine and arguable case showing an apparent infringement of a right calling for explanation or rebuttal from the opposite party
  • If damages recoverable in law are an adequate remedy, no interlocutory injunction should normally be granted
  • Eviction of an adverse possessor during the pendency of the claim defeats the claim

Court orders

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  1. 1.The Application dated the 5th November 2024 be and is hereby allowed.
  2. 2.An order of temporary injunction restraining the defendants by themselves, servants, employees and or agents from sale, eviction, transfer, disposal, wasting, damaging, alienation and or any other dealing whatsoever of the property Dagoretti/Riruta/854 (now converted to Nairobi/Block66/854) (Proposed subdivision described as Plot C) measuring 0.08Ha or thereabouts pending hearing and determination of this case.
  3. 3.Costs of the Application shall abide the outcome of the suit.

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rule 1; Order 51 Rule 1
  • Civil Procedure Act, Chapter 21, Laws of KenyaSections 1A, 1B, 3, 3A and 63

Cases cited (12)

  • Richard Wefafwa Songoi v Ben Munyifwa Songoi
    [2016] eKLR
  • Samuel Kihamba v Mary Mbaisi
    [2013] eKLR
  • Paulin Mpaka v Mark Mungiria Muguna
    [2018] eKLR
  • Virginia Mwari Thuranira v Purity Nkirote Thuranira
    [2017] eKLR
  • Joseph Oginga Onyoni & 2 Others v Attorney General & 2 Others
    [2016] eKLR
  • Daniel Gituma Merete v Franklin Mutwiri
    [2017] eKLR
  • Mcfoy v United Africa Company Ltd
    [1961] 3 ALL 1169
  • Mrao Limited v First American Bank of Kenya
    [2003] eKLR
  • Jan Bonde Nielsen v Nguruman Limited & 2 others
    [2016] eKLR
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society
    [2001] Vol. 1 EA 86
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others
    [2015] eKLR
Jurisdiction invoked
Order 40 Rule 1; Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act (Cap. 21)

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, "Mbugua v Issa & Muhia Administrators of the Estate of Issa Mbugua Salim & 2 others (Application E066 of 2024) [2025] KEELC 88 (KLR)", Case Analysis (2025). Notice of Motion dated 5th November 2024 (suit relating to Dagoretti/Riruta/854). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/88/eng@2025-01-16

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