THOMAS WAMBUGU KARUBU v STEPHEN NDUNGU KARUKU [2013] eKLR

Key Facts

Issues

• Whether the plaintiff has acquired the title to the whole of the said land by way of adverse possession under section 38 of Limitation of Actions Act having lived on this land Tetu/Unjiru/130 for more than twelve years, to be precise 54 years without interruptions, and that the defendant's title to that land has been extinguished by plaintiff's adverse possession.
• Whether the plaintiff ought to be registered as absolute proprietor of the said land parcel No. Tetu/Unjiru/130 in place of the defendant.
• Whether the Land Registrar Nyeri should now be ordered to register the said land in the name of the plaintiff as absolute proprietor.

Holdings

• The court granted a temporary injunction to the plaintiff, restraining the defendant from interfering with the land parcel Tetu/Unjiru/130 pending the final determination of the case. The costs of the application shall be in the suit.
• The court determined that the dispute can be adjudicated under the principles of adverse possession (if the defendant purchased the land but did not occupy it for 54 years) or customary trust (if the defendant was registered to hold the land for the family) once full evidence is presented.

Remedies

• Costs of the application shall be in the suit, effectively awarded to the plaintiff.
• The court issued a temporary injunction restraining and prohibiting the respondent/defendant, his agents, families, servants, and/or anybody under his authority from entering and interfering with the Land Parcel No. Tetu/Unjiru/130 pending the hearing and final determination of the case.

Legal Principles

• The court evaluated the plaintiff's application for a temporary injunction to prevent the defendant from interfering with the land pending final determination, applying the three-part test of prima facie case, irreparable harm, and balance of convenience.
• The court considered whether the plaintiff acquired title to the land through adverse possession under section 38 of the Limitation of Actions Act, having occupied the land for over 54 years without interruption.

Precedent Name

Cited Statute

Judge Name

Passage Text

• On the second issue as to whether the plaintiff stands to suffer irreparable loss and damage that cannot be compensated in monetary terms, I find that the plaintiff has satisfied this condition on the grounds that the allegation that he lives on the land with the other members of the family has not been properly controverted. If the land is sold by the defendant the plaintiff is likely to suffer irreparable loss. The fact that their mother was buried on this parcel of land works to the plaintiff's favor.
• With the above background I am of the view that the plaintiff is entitled to the orders sought in the Notice of Motion dated 22nd February 2012 and this court does hereby issue a temporary injunction restraining and prohibiting the respondent/defendant, his agents, families, servants and/or anybody under his authority from entering and interfering with the Land Parcel No. Tetu/Unjiru/130 in the name of the Respondent herein pending the hearing and final determination of this case.
• The court finds that the dispute between the parties can be dealt with either within the ambit of Adverse possession if it is proved that the defendant purchased the land but did not occupy the same and allowed the plaintiffs to be in continuous and uninterrupted possession of the same for a period of 54 years, or Customary Trust where it is proved that the defendant was registered to hold the land in Trust for the whole family. These two issues can be adequately adjudicated when full evidence is called.