Joseph Koskei v Francis Kipngetich Rop & 2 others [2016] KEELC 278 (KLR)
The bottom line
#A Kenyan land occupier with only a bare licence lost his bid for an injunction because a licence gives no lasting right to stay on someone else's land.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for injunction
No prima facie case with probability of success was demonstrated because the plaintiff claims no title or proprietary interest in the land, holding only a bare licence
Guided by Giella vs Cassman Brown, the court conducted a preliminary inquiry into the applicant's case. The plaintiff pleaded occupation at the behest of the owner, disclaiming any claim to the land. Without a claim to the land, the court could not discern on what basis a permanent injunction protecting his possession could be sought, so no prima facie case existed and the balance of convenience did not arise.
Nature of a licencee's interest
A bare licence confers no protectable term of occupation; the licencee is at the mercy of the licensor unless the licence is contractual
The plaintiff's counsel sought one year to vacate, which the court read as an admission that the plaintiff was a mere licencee without a lease. Since a licence has no term and is terminable at will unless contractual, no law entitled him to remain for a further year; his remedy was to negotiate with the owners.
Legal principles established
#- A licence, unlike a lease, has no term and can be terminated at any time unless it is under some sort of contract; a licencee occupies at the mercy of the licensor
- Occupation with the licence of the title holder negates a claim for adverse possession
- A court is not bound to allow an unopposed application automatically; it must still assess merit
Court orders
#- 1.The application for temporary injunction is dismissed
- 2.No order as to costs
- 3.The interim orders earlier issued are vacated
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land; application under Order 40 Rule 1 and Sections 3(3), 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Koskei v Francis Kipngetich Rop & 2 others [2016] KEELC 278 (KLR)", Case Analysis (2016). Not stated in the judgment (plaint filed 5 November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/278/eng@2016-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.