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ELCAllowedOriginating Summons dated 20/5/2015 (notice of motion dated 18/5/2016)· [2016] KEELC 608 (KLR)

Fred Maoga Nyambaroba v Peter Kipkurui Langa [2016] KEELC 608 (KLR)

Environment and Land Court
18 August 2016
799 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale land buyer who occupied land for over 21 years won a court order blocking his eviction until his adverse possession claim is decided.

What this practically means

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Executive summary

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The applicant filed an originating summons on 20/5/2015 seeking declaration that he had acquired LR. No. Trans-Nzoia/Kiptoi/156 by adverse possession, together with a notice of motion seeking an injunction restraining the respondent from evicting him. He claimed he purchased portions of the respondent's land under agreements dated 27/4/1992 and 3/4/1994; as the respondent never took him to the land control board, the transactions became null and void under the Land Control Act, and his continued possession became adverse. The respondent countered that he was the registered owner and had merely allowed the applicant onto the land in 1996 as a temporary licensee who later refused to move out, and that the applicant had lodged an unjustified caution. The court found no dispute that the applicant had been on the land since the 1990s and that a caution claiming purchaser's interest was registered on 29/12/1998. Applying the Mrao test, the judge held the applicant had demonstrated a prima facie case with probability of success, given the sale agreements and caution. Damages were held inadequate since land is unique, and the balance of convenience favoured the applicant, who had possessed the land for over 21 years. The court allowed the notice of motion dated 18/5/2016 in terms of prayers 3 and 4 and issued the injunction.

Key legal issues

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01

Whether the applicant demonstrated a prima facie case with probability of success for an interlocutory injunction

Holding

Yes - the applicant produced sale agreements, a 1998 caution claiming purchaser's interest, and evidence of possession, sufficient to establish an arguable adverse possession claim.

Reasoning

The court applied the Mrao definition of a prima facie case. The applicant had annexed copies of sale agreements of 1992 and 1994 and a caution lodged on 29/12/1998 claiming purchaser's interest. The respondent's claim that the applicant entered with permission was a matter to be tried. The applicant's possession of over 21 years and the respondent's pending eviction suit made the claim arguable.

p. 3
02

Whether damages would be an adequate remedy

Holding

No - land is unique; if evicted and the land sold, the applicant could not be adequately compensated in damages.

Reasoning

The applicant had been in possession for over 21 years. If evicted and the suitland sold before determination of his adverse possession claim, compensation in damages would not suffice because land is unique and he may not get a similar land elsewhere. Damages were therefore not an appropriate remedy in the circumstances.

p. 3
03

Balance of convenience

Holding

It tilts in favour of the applicant, who is in possession and has been for over 21 years.

Reasoning

The applicant is the party in possession and has been for over 21 years, while the respondent only moved to evict him by suit in 2015. Preserving the status quo by injunction protects the applicant's interest pending trial, so the balance of convenience favours granting the injunction.

p. 3

Legal principles established

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  • A prima facie case is an arguable case, not necessarily one which will succeed, on which a reasonable court directing its mind properly to the material presented can say the applicant has made a case requiring the opposite party to respond.

Court orders

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  1. 1.Allowance of the applicant's notice of motion dated 18/5/2016 and filed in court on 20/5/2016 in terms of prayers 3 and 4
  2. 2.Injunction restraining the respondent from evicting the applicant from the suitland pending hearing and determination of the originating summons

Authorities

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Legislation

  • Land Control ActConsent requirement rendering the transaction null and void on expiry of six months
  • Civil Procedure Act / Civil Procedure RulesOrder 40 (temporary injunctions, implicitly)

Cases cited (1)

  • Mrao -vs- First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land matters (adverse possession claim and interlocutory injunction under the Civil Procedure Act and Order 40 of the Civil Procedure Rules, invoked in relation to LR. No. Trans-Nzoia/Kiptoi/156)

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, "Fred Maoga Nyambaroba v Peter Kipkurui Langa [2016] KEELC 608 (KLR)", Case Analysis (2016). Originating Summons dated 20/5/2015 (notice of motion dated 18/5/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/608/eng@2016-08-18

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