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ELCDismissedNot stated in judgment (Ruiru ELC suit)· [2014] KEELC 587 (KLR)

Samwel Njehia Gitau v Joyce Wanjiku [2014] KEELC 587 (KLR)

Environment and Land Court
23 May 2014
2,181 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff applied by Notice of Motion dated 27th November 2012 under Order 40 Rule 2 of the Civil Procedure Rules for a temporary injunction restraining the defendant from entering or occupying Ruiru/Mugutha/Block 1/T.2517, pending hearing of the suit, plus costs. The plaintiff claimed to be the registered proprietor, having purchased from Mary Njeri Chege, and alleged the defendant entered the land in September 2012 and planted tree seedlings. The defendant, Joyce Wanjiku, opposed the application, averring that she purchased the land in 2003 from Alice Wambui through Nyakinywa Investment Company Limited, holds Certificate Number 7867 for ballot number 2517, and has been in continuous possession for about seven years. She alleged the plaintiff's title was procured by fraud or forgery in collusion with Mary Njeri Chege and Ministry of Lands officers, and noted that the Chief Land Registrar had directed an inquiry. The application was canvassed by written submissions. Applying the Giella v Cassman Brown principles, the court found the plaintiff had a prima facie case by virtue of section 26(1) of the Land Registration Act, his title being prima facie evidence of indefeasible ownership. However, the plaintiff failed to demonstrate irreparable damage not compensable in damages, particularly as the defendant had long been in occupation and the plaintiff was not. The court also held that an injunction cannot issue to restrain an event that has already occurred and that the balance of convenience favoured the defendant, as granting the injunction would effectively evict her. The Notice of Motion was dismissed with costs to the defendant, and the parties were directed to set down the main suit for hearing on the merits.

Key legal issues

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01

Prima facie case

Holding

The plaintiff established a prima facie case by virtue of his registered title under section 26(1) of the Land Registration Act

Reasoning

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.

p. 2
02

Irreparable damage

Holding

The plaintiff failed to demonstrate irreparable injury; his loss would be adequately compensable in damages

Reasoning

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.

p. 3
03

Balance of convenience

Holding

The balance of convenience tilts in favour of the defendant who is already in occupation; granting the injunction would effectively evict her

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 27th November 2012 is dismissed with costs to the defendant
  2. 2.The parties to set down the main suit for hearing so that the issues in dispute can be resolved on merit
Jurisdiction invoked
Order 40 Rule 2 of the Civil Procedure Rules and Section 63(c) of the Civil Procedure Act

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, "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.