Faraj Maharus v J.B. Martin Glass Industries & 3 others [2005] KECA 303 (KLR)
The bottom line
#A temporary licence to occupy Government land dies with its holder and can never defeat another person's registered title to that land.
What this practically means
#Executive summary
#Key legal issues
#Whether the refusal of an adjournment and denial of audience to the appellant's counsel justified setting aside the striking-out order
No. The appellant was guilty of laches and indolence; the judge properly exercised his discretion in refusing the adjournment.
The appellant had not filed grounds of opposition or a replying affidavit in compliance with Order 50 rule 16, had failed to pay court adjournment fees, and had not prosecuted the ex-parte injunction application. Counsel had three months to prepare. Adjournments are matters of judicial discretion depending on the circumstances of each case, and no error of principle or improper ground was shown in the exercise of that discretion.
Whether a Temporary Occupation Licence confers any transferable or inheritable interest in Government land
No. The licence is personal to the licensee and creates no interest capable of disposition or inheritance; it ended on the deaths of the licensees.
The court adopted the principle in Runda Coffee Estate Ltd v Ujagar Singh that a Temporary Occupation Licence is personal and creates nothing substantial which is assignable. As the appellant had nothing to show for continued occupation of the suit land after the licensees' deaths, his occupation amounted to trespass against the registered proprietor.
Whether the appellant could claim the suit land by adverse possession as against the Government
No. Adverse possession cannot run against public or Government land.
The land was at all material times Government land vested in the Government under the Government Lands Act and its precursor, the Crown Lands Ordinance. Disposition of such land can only be in accordance with that Act, and no disposition was made to the appellant under it. The appellant therefore could not benefit from the long period of his occupation without let or hindrance from the Government.
Whether the suit was properly struck out as frivolous, vexatious and an abuse of process
Yes. With no legal foundation, the suit was plainly frivolous and would have wasted the court's time.
Once the licence-based claim, the adverse-possession claim and the challenge to the registered title were all legally unsustainable, the basic fabric of the suit was torn apart. It was plain and obvious that the suit was frivolous; a suit lacking foundation to sustain a hearing would amount to wasting the court's time and was correctly struck out under Order VI rule 13(b), (c) and (d).
Legal principles established
#- A Temporary Occupation Licence to occupy Government land is personal to the licensee, creates no assignable or inheritable interest in the land, and lapses on the licensee's death.
- Adverse possession cannot be acquired against public or Government land, however long the occupation may have been.
- Title registered under the Registration of Titles Act is indefeasible except on proof of fraud or misrepresentation, and such a certificate of title prevails over a Temporary Occupation Licence.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 447 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (appeal from the High Court ruling; specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethics and Anti-corruption Commission v Kiptoo & 3 others (Environment and Land Case E009 of 2025) [2026] KEELC 4327 (KLR)[2026] KEELC 4327 (KLR)30 Jun 2026
- Ngewa Community Centre Through its Officials Richard Kangethe Karanja and Simon Kinyanjui v Presbyterian Foundation & 2 others[2023] KEELC 19171 (KLR)26 Jul 2023
- Daniel Kipkemboi Bett & 7 others v Margaret Wanjiku Chege [2015] KEELC 205 (KLR)[2015] KEELC 205 (KLR)23 Sept 2015applied
Cite this brief
#Cite this brief
Caselaw, "Faraj Maharus v J.B. Martin Glass Industries & 3 others [2005] KECA 303 (KLR)", Case Analysis (2005). Civil Appeal No. 130 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/303/eng@2005-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.