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ELCDismissed(amended Originating Summons dated 26th November 2013)· [2016] KEELC 512 (KLR)

Babubhai M Mistry v Joreth Limited & another [2016] KEELC 512 (KLR)

Environment and Land Court
20 May 2016
SOS. Okong'o
2,536 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to stop a land sale because a buyer claiming 30-year occupation could not prove the registered owner ever lost possession.

What this practically means

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Executive summary

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This is a ruling by S. Okong'o, J of the Environment and Land Court at Nairobi on the Plaintiff's amended Notice of Motion dated 26th November 2013 seeking a temporary injunction restraining the 2nd defendant from dealing with or interfering with a 0.25-acre portion of LR No. 13330/34 (Plot No. 281 Thome Farmers No. 5 Limited) pending trial of an amended Originating Summons in which the Plaintiff claims title by adverse possession, cancellation of the 2nd defendant's registration and rectification of the register. The Plaintiff claimed he bought a share representing the plot from Thome in 1980 and had occupied the land for over 30 years, fencing it and depositing building materials, and that the 2nd defendant demolished his concrete wall after the suit was filed. The 1st defendant asserted it had always owned the land, that the Plaintiff was a trespasser who refused to comply with a 1992 compromise requiring payment of Kshs.200,000, and that it had sold the land to the 2nd defendant. The 2nd defendant claimed to be an innocent purchaser for value who took vacant possession in 2010, fenced the land, erected a structure and cultivated it. Applying Giella v Cassman Brown and the principles in Mrao and Wambugu v Njuguna, the court held there was no evidence Thome ever owned the property, that adverse possession cannot run against a non-owner, and no prima facie evidence of dispossession or of the Plaintiff's occupation; the wall claimed by the Plaintiff lay on a neighbouring parcel. The application was dismissed with costs in the cause, but the court ordered that the status quo as to title, possession and use of the suit property be maintained pending hearing and determination of the suit.

Key legal issues

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01

Whether the Plaintiff established a prima facie case of adverse possession for purposes of a temporary injunction

Holding

No - there was no evidence of dispossession of the 1st defendant or of the Plaintiff's occupation for the limitation period

Reasoning

The Plaintiff claimed through Thome, but there was no evidence Thome ever owned the suit property, so his adverse possession claim could not be based on that relationship. The property was at all material times owned by the 1st defendant before transfer to the 2nd defendant. The Plaintiff did not plead clearly his relationship with the 1st defendant, and no evidence showed dispossession, discontinuance of the owner's possession, or the Plaintiff's occupation, possession or physical acts on the land (the wall was on a neighbouring parcel).

p. 4
02

Whether the other Giella requirements (irreparable injury, balance of convenience) needed consideration

Holding

Not necessary once the prima facie case failed

Reasoning

Having found no prima facie case with a probability of success, the court did not proceed to assess irreparable injury or the balance of convenience, though it preserved the status quo as a matter of justice pending full trial.

p. 4

Legal principles established

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  • A prima facie case in a civil application is a case which on the material presented the court concludes there exists a right apparently infringed so as to call for an explanation or rebuttal from the opposite party
  • To acquire title by the statute of limitations against land with a known owner, the owner must have lost the land by dispossession or discontinuance of possession
  • An adverse possession claim cannot be raised against a person who is not the owner of the property the subject of the claim

Court orders

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  1. 1.The amended Notice of Motion dated 26th November 2013 seeking a temporary injunction is dismissed
  2. 2.Status quo relating to the title, possession and use of the suit property shall be maintained pending the hearing and determination of the suit
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Limitation of Actions Act (referred to as 'the statute of Limitations')not specified

Cases cited (3)

  • Giella vs Cassman Brown & Co. Ltd.
    (1973) EA 358
  • Mrao Ltd. vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 1215
  • Wambugu Vs. Njuguna
    (1983) KLR 172
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property (portion of LR No. 13330/34); interlocutory application under the court's injunctive powers

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Babubhai M Mistry v Joreth Limited & another [2016] KEELC 512 (KLR)", Case Analysis (2016). (amended Originating Summons dated 26th November 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/512/eng@2016-05-20

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