Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (plaint filed 5 November 2015)· [2016] KEELC 278 (KLR)

Joseph Koskei v Francis Kipngetich Rop & 2 others [2016] KEELC 278 (KLR)

Environment and Land Court
23 March 2016
1,365 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The plaintiff sued by plaint filed on 5 November 2015 seeking a permanent injunction restraining the defendants from evicting him from land parcel Molo South/Langwenda Block 8/152 (Cheptagum) and from destroying trees on it, plus costs. He pleaded occupation since 1979 (about 36 years) at the behest of the deceased owner, Kiprop arap Chumo, and alleged that in September/October 2015 the defendants demanded vacant possession, served a seven-day notice, cut trees, fenced and ploughed the land. Together with the plaint he moved an application under Order 40 Rule 1 and Sections 3(3), 1A, 1B and 3A of the Civil Procedure Act seeking a temporary injunction restraining sale, alienation, cultivation, tree-cutting, eviction and any interference with his quiet possession pending trial. The defendants, though served, did not enter appearance or respond. Applying the Giella vs Cassman Brown principles, Munyao Sila J held that the plaintiff did not claim the land by adverse possession - his pleaded occupation was with the licence of the deceased owner - and that a bare licencee occupies at the mercy of the licensor unless the licence is contractual. As the plaintiff claimed no title or proprietary interest, the court could not see the basis for the permanent injunction sought, and no law entitled him to remain for a further year to remove his belongings; that was a matter for negotiation. No prima facie case with a probability of success was established, and the balance of convenience did not arise. The application was dismissed with no order as to costs and the interim orders were vacated.

Key legal issues

#
01

Prima facie case for injunction

Holding

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

Reasoning

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.

p. 3
02

Nature of a licencee's interest

Holding

A bare licence confers no protectable term of occupation; the licencee is at the mercy of the licensor unless the licence is contractual

Reasoning

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.

p. 3

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. 1.The application for temporary injunction is dismissed
  2. 2.No order as to costs
  3. 3.The interim orders earlier issued are vacated

Authorities

#

Legislation

  • Civil Procedure ActSections 3(3), 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (1)

  • Giella vs Cassman Brown
    (1973) EA 358
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.