Simeon Kibichi Chesang v Lekitari Arap Cheruiyot & another [2017] KEELC 2750 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a likelihood of success
The court was in doubt, finding the plaintiff's claim unclear as to whether it was based on fraud or adverse possession, and holding that adverse possession could not apply given the 2015 registration and the Settlement Fund Trustees
The court found the property was registered in the names of the Settlement Fund Trustees until 24 June 2015, when it was registered in the 1st defendant's name and transferred to the 2nd defendant the same day. The plaintiff's claim rested on adverse possession, but that principle requires 12 years' possession against a registered owner and cannot run against the Government. The claim was also unclear between fraud and adverse possession, which cannot be joined.
Whether the plaintiff would suffer irreparable harm not compensable in damages
The plaintiff failed to demonstrate that damages would be inadequate
The plaintiff did not show that the defendants lacked the means to pay damages, nor that damages would be inadequate compensation for any loss. This limb of the Giella test therefore failed.
Where the balance of convenience lies
The balance of convenience favoured maintaining the status quo: the defendants to keep their 4 acres of planted maize, while the plaintiff retains possession of one acre with a 4-metre access road
The court weighed that the defendants had already planted maize on 4 acres, which they should be allowed to maintain, against the fact that the plaintiff had constructed a house on the land. The status quo preserved both parties' positions pending hearing and determination of the suit.
Legal principles established
#- The Giella v Cassman Brown three-pronged test governs the grant of temporary injunctions
- Adverse possession is a prescriptive right maturing after 12 years of possession and operates against the registered owner, but cannot run against the Government or the Settlement Fund Trustees
- A claimant cannot plead fraud and adverse possession together; a plaintiff must choose between a claim based on fraud and one based on adverse possession
Court orders
#- 1.The plaintiff to remain in possession of one acre of the suit parcel of land
- 2.A road of access measuring 4 meters wide to be created to allow the plaintiff access to the main road from the portion he occupies
- 3.The defendants are restrained from selling, charging, dumping building materials on, constructing, demolishing, erecting structures on or dealing with the suit parcel in any manner whatsoever until hearing and determination of the suit
- 4.An interim injunction restraining the Assistant Chief, Milcah Limo, Sitatunga Location and members of the local administration from supervising, assisting or providing protection to the defendants in respect of any action over Trans-Nzoia/Siyoi/72 pending hearing and determination of the suit
- 5.The OCS, Sibanga Police Station to ensure compliance of the orders pending hearing and determination of the suit
- 6.Costs of the application be in the cause
- Jurisdiction invoked
- Not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simeon Kibichi Chesang v Lekitari Arap Cheruiyot & another [2017] KEELC 2750 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2750/eng@2017-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.