Ngenda Location Ranching Company Ltd v John Ndung’u Gitaka & 24 Others [2016] KEELC 1195 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicants established a prima facie case for injunction premised on adverse possession
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
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.
Whether the applicants' grievance over high survey fees supports an injunction founded on adverse possession
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
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.
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
The court found it unnecessary to determine the directorship issue given the failure to establish a prima facie case
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.
Legal principles established
#- 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
#- 1.The defendants' application dated 15th April 2015 is dismissed
- 2.Costs of the application to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.