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ELCDismissedEnvironment and Land Court No. 165 of 2014· [2016] KEELC 1195 (KLR)

Ngenda Location Ranching Company Ltd v John Ndung’u Gitaka & 24 Others [2016] KEELC 1195 (KLR)

Environment and Land Court
20 January 2016
1,840 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed land buyers' injunction bid because occupying company land as shareholders is permitted possession, not adverse possession.

What this practically means

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Executive summary

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The plaintiff, a limited liability land buying company, sued for eviction and permanent injunction against defendants who allegedly invaded its land parcels (L.R No. 11764, 9264 and 6290) in May 2014, destroying coffee and macadamia trees and infrastructure. The 1st, 2nd, 3rd and 25th defendants filed a defence and counterclaim asserting entitlement to the portions they occupy by adverse possession since 2001, and moved the court by application dated 15th April 2015 seeking a perpetual injunction restraining the plaintiff from issuing survey receipts and from selling, transferring, charging or alienating the suit properties pending determination of the main suit. They complained that the company fixed high survey fees without a members' resolution, alienated the land without Land Control Board consent, and sold land to Stima Investment Cooperative Society without members' resolution. The plaintiff, through director Felister Njeri Cheror, opposed the application, asserting that shareholders in possession had permissive possession pending subdivision and balloting, that due processes were followed, and that the 1st defendant simply refused to pay survey fees. Applying Giella v Cassman Brown, Munyao Sila J held that the applicants, being shareholders in possession by virtue of membership, were in possession with permission, which cannot sustain adverse possession. Their real grievance was the survey fee, which was unconnected to an adverse possession claim. No prima facie case was established; the directorship challenge to Felister was not addressed. The application was dismissed with costs.

Key legal issues

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01

Whether the applicants established a prima facie case for injunction premised on adverse possession

Holding

No prima facie case was established because the applicants, as shareholders, were in possession, if at all, with the permission of the plaintiff company, which is inconsistent with adverse possession

Reasoning

The court applied the Giella v Cassman Brown principles. It found from the pleadings and affidavits that the applicants were shareholders of the plaintiff company who entered the land in that capacity. Such possession, being permissive, undermines a claim of adverse possession. The court also noted the company was ready to allocate them land upon payment of survey fees, further undermining the adverse possession claim.

p. 3
02

Whether the applicants' grievance over high survey fees supports an injunction founded on adverse possession

Holding

It does not; a dispute over the level of survey fees payable to obtain one's share as a member is unconnected to a claim for adverse possession

Reasoning

The court observed that the applicants' real quarrel was with the manner the company was distributing its assets and the quantum of survey fees charged. Since the plaintiff was willing to give them their allotted land upon payment of the fees, the complaint about the fee level could not sustain a claim that they had acquired title by adverse possession.

p. 3
03

Whether the challenge to Felister Njeri Cheror's authority to swear the replying affidavit (alleged 11th director contrary to Articles providing for 10) affected the application

Holding

The court found it unnecessary to determine the directorship issue given the failure to establish a prima facie case

Reasoning

The applicants had attacked the replying affidavit on the basis that Felister was listed as an 11th director whereas the Articles of Association provided for only 10 directors. The court declined to address the issue because the application had already failed on the primary ground of no prima facie case.

p. 4

Legal principles established

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  • To succeed in an application for injunction, an applicant must demonstrate a prima facie case with a probability of success, and that they stand to suffer irreparable loss if the injunction is not granted; if in doubt, the court decides on a balance of convenience
  • Possession enjoyed with the permission of the registered owner cannot sustain a claim for adverse possession

Court orders

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  1. 1.The defendants' application dated 15th April 2015 is dismissed
  2. 2.Costs of the application to the plaintiff

Authorities

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Legislation

  • Articles of Association of the plaintiff companyProvision on number of directors (10)

Cases cited (1)

  • Giella vs Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court

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, "Ngenda Location Ranching Company Ltd v John Ndung’u Gitaka & 24 Others [2016] KEELC 1195 (KLR)", Case Analysis (2016). Environment and Land Court No. 165 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1195/eng@2016-01-20

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