Samwel Njehia Gitau v Joyce Wanjiku [2014] KEELC 587 (KLR)
The bottom line
#A Ruiru court refused to stop a woman occupying disputed land because a title alone doesn't beat someone already living there for years.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff has established a prima facie case with a probability of success
- 2.Whether the plaintiff would suffer irreparable damage not compensable by damages if the injunction is not granted
- 3.Where the balance of convenience lies
Key legal issues
#Prima facie case
The plaintiff established a prima facie case by virtue of his registered title under section 26(1) of the Land Registration Act
The plaintiff annexed a title deed and sale agreement showing purchase from Mary Njeri Chege. Section 26(1) of the Land Registration Act makes a certificate of title prima facie evidence of absolute and indefeasible ownership, subject to challenge on fraud or where acquired illegally, unprocedurally or through a corrupt scheme. The defendant alleged fraud but has no title deed, having only a sale agreement, clearance certificate and plot ownership number.
Irreparable damage
The plaintiff failed to demonstrate irreparable injury; his loss would be adequately compensable in damages
Applying Giella v Cassman Brown and American Cyanamid v Ethicon, the court found the plaintiff did not show how refusal of the injunction would cause damage not atonable in damages. The defendant has been in use and occupation for seven years, cultivating, planting trees and fencing, facts the plaintiff did not controvert; he admitted learning of an occupant in 2010, showing he was not in occupation.
Balance of convenience
The balance of convenience tilts in favour of the defendant who is already in occupation; granting the injunction would effectively evict her
The court cannot injunct what has already happened. The defendant has been in occupation for seven years, and granting the plaintiff's prayer would render her destitute whereas the plaintiff, if he succeeds at trial, would recover land occupied by someone with a home. The court relied on Mavoloni v Standard Chartered Estate Management and Esso Kenya Ltd v Mark Makwata Kiya for the principle that injunctions do not issue against overtaken events.
Legal principles established
#- A registered proprietor's certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme
- An injunction cannot issue to restrain an event that has already taken place
Court orders
#- 1.The Notice of Motion dated 27th November 2012 is dismissed with costs to the defendant
- 2.The parties to set down the main suit for hearing so that the issues in dispute can be resolved on merit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 40 Rule 2 of the Civil Procedure Rules and Section 63(c) of the Civil Procedure Act
Relief refused
#Temporary injunction restraining the defendant from entering or occupying Ruiru/Mugutha/Block 1/T.2517
No irreparable damage demonstrated; damages would suffice; the defendant is already in occupation so the balance of convenience favours her and an injunction cannot issue against an event already taken place
Costs
Dismissed with costs to the Defendant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently the court dismisses the Applicant’s Notice of Motion dated 27th November 2012 with costs to the Defendant. The parties should endeavour to set down the main suit for hearing so that the issues in dispute can be resolved on merit.
an injunction cannot issue to restrain an event that has taken place.
It is my considered opinion the applicant can be compensated in terms of damages should the court find that he was indeed the legal owner of the suit land after the court has had the opportunity of hearing this suit on its merits.
Issues in the judgment
#Defendant's purchase date is stated inconsistently in the same passage
The defendant's party name (Joyce Wanjiku) appears in the body, but the formal case caption/case number is not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Njehia Gitau v Joyce Wanjiku [2014] KEELC 587 (KLR)", Case Analysis (2014). Not stated in judgment (Ruiru ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/587/eng@2014-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.