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ELCAllowedNot stated in the judgment (interlocutory notice of motion dated 16th August 2016 arising from an originating summons dated 29th July 2016)· [2017] KEELC 2837 (KLR)

Vincent Otieno Opolo v John Omolo Oyange [2017] KEELC 2837 (KLR)

Environment and Land Court
31 May 2017
SKS.M. Kibunja
487 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer or owner can be court-blocked from interfering with someone living on their land while that person pursues an adverse possession claim.

What this practically means

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Executive summary

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By notice of motion dated 16th August 2016, the Applicant, Vincent Otieno Opolo, sought a temporary injunction restraining the Respondent, John Omolo Oyange, from trespassing on, alienating or interfering with his quiet enjoyment of land parcel Kisumu/Kochogo/909 pending the hearing and determination of the suit. The application was supported by an affidavit and grounded on four grounds; the Respondent opposed it through a replying affidavit sworn on 23rd August 2016 and a further affidavit sworn on 26th September 2016. Written submissions were directed at the hearing of 9th November 2016; only the Applicant's counsel filed submissions, and the Respondent and his counsel were absent at the mention of 16th February 2017. The court framed two issues: whether the Applicant had established a prima facie case with a probability of success for an interlocutory injunction, and who should pay costs. On the evidence, the court found the Respondent to be the registered proprietor of the suit parcel since 6th October 1986, per an official search certificate. However, the Applicant had lodged an adverse possession claim by originating summons dated 29th July 2016 and deponed that the Respondent damaged a house on the land after being served with the summons, for which the Respondent faced criminal charges. The court held it just that the Applicant continue using the land pending determination, allowed the motion in terms of prayer 4, and awarded costs in the cause.

Key legal issues

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01

Whether a temporary injunction should issue at the interlocutory stage

Holding

The application was allowed in terms of prayer 4; the court found the Applicant had a claim over the suit land through a pending adverse possession originating summons and restrained the Respondent pending determination of the suit.

Reasoning

The court noted the Respondent is the registered proprietor since 6th October 1986, but the Applicant had lodged an adverse possession claim by originating summons dated 29th July 2016. The Applicant alleged the Respondent damaged his house after service of the summons, and the Respondent faces criminal charges over that damage. The court considered it just that the Applicant continue using the land as he had been doing, and found the motion had merit, allowing it in terms of prayer 4 with costs in the cause.

p. 2

Legal principles established

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  • A party in occupation of land who has filed an adverse possession claim may be preserved in occupation pending determination of the suit.

Court orders

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  1. 1.Temporary injunction restraining the Respondent from trespassing on, alienating or interfering with the Applicant's quiet enjoyment of land parcel Kisumu/Kochogo/909, granted in terms of prayer 4 of the notice of motion
  2. 2.Costs in the cause
Jurisdiction invoked
Not expressly invoked; interlocutory jurisdiction of the Environment and Land Court over land parcel Kisumu/Kochogo/909

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, "Vincent Otieno Opolo v John Omolo Oyange [2017] KEELC 2837 (KLR)", Case Analysis (2017). Not stated in the judgment (interlocutory notice of motion dated 16th August 2016 arising from an originating summons dated 29th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2837/eng@2017-05-31

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