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Court of AppealDismissedCivil Appeal 134 of 1994

JOHN GITONGA KIHARA & 4 others v KASIGAU RANCHING (D.A.) LIMITED [1995] KECA 85 (KLR)

Court of Appeal of Kenya
13 November 1995
922 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that when a licence to use someone's land expires, staying on makes you a trespasser who can be barred by a court injunction.

What this practically means

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Executive summary

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This is a judgment of the Court of Appeal at Nairobi (Gachuhi, Omolo and Lakha JJA) dismissing the defendants' appeal against an interlocutory injunction granted by Dugdale J on 11 April 1994 in H.C.C.C. No. 5936 of 1993, restraining the appellants from entering land known as L.R. 12180 at Kasigau, measuring about 35,600 acres, until final determination of the suit. The respondent, the registered owner, needed the land free of the appellants' activities to enable its sale to satisfy a debt of over Shs.9m to the Agricultural Finance Corporation. The judge had found a prima facie case with reasonable probability of success and irreparable loss. Dismissing the appeal, the Court held that no defence had been put forward sufficient to show a relevant issue to be tried: the appellants' licence had expired and was never renewed, so upon the plaintiff withholding consent they were plainly trespassers, adopting Salmond on Torts on the revocability of bare licences and the consequences of remaining on land after revocation, as laid down in Wood v Leadbitter and Thompson v Park. The Court reiterated, per Mbogo v Shah, that it would not interfere with a trial judge's exercise of discretion unless satisfied the decision was clearly wrong, and found the judge plainly right. The appeal was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in granting an interlocutory injunction restraining the appellants from entering the respondent's land
  2. 2.Whether there was any arguable defence or relevant issue to be tried
  3. 3.Whether the Court of Appeal could interfere with the trial judge's exercise of discretion

Key legal issues

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01

Interference with discretionary interlocutory injunctions on appeal

Holding

The Court of Appeal will not disturb the exercise of discretion by a trial judge unless it is satisfied the decision is clearly wrong.

Reasoning

The Court adopted the classic formulation in Mbogo v Shah by Sir Clement de Lestang VP. Applying those principles, it found no misdirection, no reliance on irrelevant matters, and no failure to consider relevant material, and held the judge was plainly right in granting the injunction.

p. 2
02

Existence of an arguable defence on interlocutory injunction

Holding

There was no defence sufficient to show a relevant issue to be tried; the licence had expired and was not renewed, so the defendants were trespassers.

Reasoning

The Court reviewed the evidence and submissions and found no defence to reckon with. The appellants' licence had expired with no evidence of renewal, and upon the plaintiff withholding consent the defendants were clearly trespassers, justifying the injunction until trial.

p. 2
03

Effect of revocation or expiry of a bare licence

Holding

Under a bare licence no interest in property passes; a licensee exercising the licence after revocation or expiry becomes a trespasser at common law.

Reasoning

The Court adopted the passage from Salmond on Torts (17th Edn), relying on Wood v Leadbitter and Thompson v Park, holding that a bare licence is revocable at the will of the licensor and affords no justification for continued occupation after revocation or expiry.

p. 2

Legal principles established

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  • An appellate court will not interfere with a trial judge's exercise of discretion unless satisfied the decision is clearly wrong, that the judge misdirected himself, acted on wrong matters, or failed to consider relevant matters and arrived at a wrong conclusion.
  • A bare licence passes no interest in property and is revocable at common law; a licensee who remains on land after revocation becomes a trespasser.
  • Upon a landowner withholding consent after expiry of a licence, the former licensee is a trespasser and a prima facie case for an injunction to restrain trespass is made out.

Court orders

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  1. 1.The appeal was dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 5936 of 1993
Jurisdiction invoked
First appellate jurisdiction over an interlocutory ruling of the High Court

Relief refused

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Setting aside of the interlocutory injunction granted by Dugdale J

The Court was not persuaded the judge misdirected himself or failed to consider relevant matters; no defence was shown

p. 2

Costs

The appeal was dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly and, for the reasons above stated, the appeal fails and is dismissed with costs.
p. 2Disposition - dismissal of the appeal
We are satisfied that this is not one of those cases where we would interfere with the exercise of discretion by the judge. We are satisfied that having regard to the circumstances of the case he was plainly right.
p. 2Appellate restraint on discretionary decisions
In our judgment no defence was put forward sufficient to show that there was any relevant issue to be tried. Prima facie the plaintiff is entitled to an injunction to restrain trespass on its land.
p. 2No arguable defence; trespass on registered land
The defendants had been granted a licence which had expired and there was no evidence of any renewal of such licence. Upon the plaintiff withholding his consent the defendants were clearly trespassers.
p. 2Expiry of licence and consequent trespass

Issues in the judgment

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minor

Textual corruption in the quoted passage from Salmond on Torts: the text reads 'the licensee is simply not a transpasser' where context (and the standard passage) would indicate 'the licensee is simply not a trespasser', and the preceding line appears truncated.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "JOHN GITONGA KIHARA & 4 others v KASIGAU RANCHING (D.A.) LIMITED [1995] KECA 85 (KLR)", Case Analysis (1995). Civil Appeal 134 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/85/eng@1995-11-13

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