[2013] KEHC 6134 (KLR)
The court found that the plaintiff established a prima facie case based on claims of customary trust and adverse possession, satisfying the first requirement for an interlocutory injunction. The court further held that the plaintiff would suffer irreparable loss due to substantial developments on the land if the...
Source-derived case information.
- Citation
- [2013] KEHC 6134 (KLR)
- Parties
- Plaintiff: Johnson Kanyingi Githinji; Defendant: Margaret Wanjiku Muchiri
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 63 of 2013
- Procedural Posture
- Originating Summons / Ruling on Interlocutory Injunction
- Outcome
- application allowed
- Judges
- A Ombwayo
- Legal Topics
- Customary Trust, Adverse Possession, Injunctive Relief, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Kanyingi Githinji
Plaintiff
Margaret Wanjiku Muchiri
Defendant
Procedural Posture
Originating Summons / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for an interim injunction based on customary trust or adverse possession.
- 2 Whether the plaintiff will suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience favors granting the injunction to the plaintiff.
Ratio Decidendi
The court found that the plaintiff established a prima facie case based on claims of customary trust and adverse possession, satisfying the first requirement for an interlocutory injunction. The court further held that the plaintiff would suffer irreparable loss due to substantial developments on the land if the injunction was not granted. Even if there were doubts, the balance of convenience favored the plaintiff, who had been in occupation and use of the land for decades. Accordingly, the court allowed the application for an interim injunction, restraining the defendant from interfering with the plaintiff's possession and use of the suit land pending determination of the suit.
Court Disposition
application allowed
Orders
- An interim injunction is granted restraining the defendant from alienating or interfering with the plaintiff's possession and use of the suit land pending determination of the suit.
- Costs in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
LAND AND ENVIRONMENT COURT
E.L.C. NO.63 OF 2013
JOHNSON KANYINGI GITHINJI.................................................................PLAINTIFF
VERSUS
MARGARET WANJIKU MUCHIRI............................................................DEFENDANT
R U L I N G
The suit herein is commenced by way of originating summons on a claim based on Customary Trust. The plaintiff alleges that L.R. No.OTHAYA/IHURIRIO/379 was initially registered in the names of JOHN MUCHIRI WAIRAGU (deceased) and later subdivided and became OTHAYA/IHURIRIO/645 and OTHAYA/IHURIRIO 646 currently registered in the name of the defendant MARGARET WANJIKU MUCHIRI .He claims that the two parcels of land are subject to Customary Trust in favour of the plaintiff JOHNSON KANYINGI GITHINJI. Moreover, the plaintiff claims a right to the parcels of land on the basis of adverse possession.
In the affidavit supporting the Originating Summons there is no dispute that the suit properties are registered in the names of the defendant and were created after subdivision in 1998. However the first registration was done in 1958 after demarcation and consolidation. It is alleged that at first registration the defendant's husband was only 12 years old and that the beneficiaries did not know the same and therefore the registration was meant to benefit the whole family.
Moreover, it is alleged that the defendant and her late husband never settled on the land today and that they have been staying in the Rift Valley.
The plaintiff claims that he has been staying on the land with his family since the year 1958 and has exclusive possession and use of the whole land and has planted 10,000 tea bushes, mature trees, fruits, food crops, has built a home for himself and children.
Accompanying the Originating Summons is a Notice of Motion dated 18/4/2013 where he is seeking an interim order of injunction against the defendant from alienating or interfering with his possession and use of the suit land on the basis that the same are ancestral and have been in the plaintiff's possession. The plaintiff has sworn a supporting affidavit to the Notice of Motion whose import is that they have been threatened with eviction.
The Notice of Motion was served upon the defendants daughter, Jemimah Wambui of ID. No.30892853 who accepted service on behalf of her mother. Se appointed the firm of Gori, Ombongi & Co. Advocates who filed the Notice of appointment and replying affidavit on the 14/5/2013 after the hearing of the application.
The import of the replying affidavit is that the disputed parcels of land were registered in her husband's name who died on 2007 having subdivided the land in three portions. After her husband's death she filed a succession cause and obtained a grant which was confirmed on 28/2/2012. She claims that she did not require the consent of the applicant to commence a succession cause since she has sons and her mother Jemimah Wambui Wairagu is still alive. The respondents allege that their mother was a subject to proceedings before the Nyeri South Tribunal and the verdict was that the applicant should vacate willingly. The decision is annexed. The same is not dated and appears to have been made without jurisdiction.
This court finds that the plaintiff has established a prima facie case with a probability of success based on the claim of Customary Trust or adverse possession and therefore satisfies the first limb in Giella -VS Cassman Brown.
Secondly, the court finds that if a temporary injunction is not issued, the plaintiff is likely to suffer irreparable loss due to the developments on the parcel of land as sworn in the supporting affidavits.
Though not necessary as I have found for the plaintiff on the two above grounds, if I were in doubt, which I'm not, I would also decide on a balance of convenience to the benefit of the plaintiff because he has been in occupation and actual use of the land since 1988.
The upshot of the above is that the application is allowed with costs in the cause.
Dated, signed and delivered at Nyeri this 22nd day of May 2013.
A. OMBWAYO
JUDGE