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ELCDismissedELC Application dated 25th November 2016 (arising from Originating Summons filed 28th November 2016)· [2017] KEELC 2975 (KLR)

Irene Thadde Avermann v Coquero Limited [2017] KEELC 2975 (KLR)

Environment and Land Court of Kenya
12 May 2017
2,449 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop a landowner from dealing with disputed land, holding that hidden occupation cannot support an adverse possession claim.

What this practically means

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Executive summary

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The plaintiff, Irene Thadde Averman, moved the Environment and Land Court at Malindi by a notice of motion dated 25th November 2016 seeking interlocutory injunctive orders to restrain the defendant, Coquero Limited, from evicting her, alienating, charging, leasing or subdividing sub-division No. 491 of Section IV Mainland North (CR. 30489), on which she said her house stood, pending determination of an Originating Summons she filed claiming adverse possession. She averred that since 1998 she had lived on and built on the land openly and without the defendant's consent or contestation. The defendant opposed, asserting through its director Franklyn Pereira that the application was an abuse of process made in bad faith; that the defendant had been violently prevented from taking possession since 2001 by the plaintiff's brother, Bruce Joseph Bockle, who had a decree against him requiring eviction, upheld on appeal, and that the plaintiff was merely acting as his agent. Applying the Giella v Cassman Brown principles and Mrao v First American Bank's definition of a prima facie case, the court (J.O. Olola, J) held that the defendant had never been in possession or control of the land, that the plaintiff's occupation, if any, was not open but acquired by stealth under cover of her mother's estate, and that limitation could not run during the pending litigation between the defendant and her brother by operation of lis pendens. The claim for adverse possession was held not tenable. The application was dismissed with costs to the defendant on 12th May 2017.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success on her claim for adverse possession

Holding

No - the defendant was never in possession or control of the land, so limitation could not run against it; the plaintiff's occupation was not open and adverse but acquired by stealth, and limitation was suspended during the pending litigation between the defendant and her brother

Reasoning

The court traced the history: the defendant bought the land in 1998 but was violently prevented from taking possession by the plaintiff's brother, leading to High Court litigation and an eviction decree affirmed on appeal. Since the plaintiff occupied as a beneficiary of her mother's estate and acted in concert with her brother, her possession was not open or adverse. Under the lis pendens doctrine, limitation could not run while the defendant's suit was pending. The claim for adverse possession was therefore not tenable.

p. 4
02

Whether an interlocutory injunction should issue pending the hearing of the originating summons

Holding

No - the Giella principles were not satisfied; the plaintiff having failed on the first limb of prima facie case, the application was dismissed

Reasoning

Applying the settled principles in Giella v Cassman Brown, the court first asked whether the applicant showed a prima facie case with a probability of success, as defined in Mrao v First American Bank. Because the adverse possession claim was untenable on the material before the court, the applicant failed at the first limb and the injunction could not be granted. The defendant argued the application was an abuse of process and that the plaintiff was merely acting as her brother's agent after he exhausted all remedies.

p. 4

Legal principles established

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  • Adverse possession requires possession that is neither by force, stealth, nor under licence of the owner, and it must be adequate in continuity, publicity and extent (nec vi, nec clam, nec precario)
  • The person against whom adverse possession is claimed must be in possession of, or able to exercise control over, the land; limitation cannot run against a party who has been persistently and actively kept out of possession
  • By operation of lis pendens, decisions in pending litigation bind persons deriving title under the litigating parties during the suit

Court orders

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  1. 1.The plaintiff's application dated 25th November 2016 is dismissed
  2. 2.Costs of the application awarded to the defendant

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)section 7
  • Limitation of Actions Act (Cap 22)section 13
  • Limitation of Actions Act (Cap 22)sections 9, 10, 11 and 12

Cases cited (7)

  • Giella -vs- Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Ltd -vs- First American Bank of Kenya Ltd & 2 others
    (2003) KLR 125
  • Pye (Oxford) Holdings Ltd -vs- Graham
    (2000) Ch 676
  • Adnam -vs- Earl of Sandwich
    (1877) QBD 485
  • Bellamy -vs- Sabina
    (1857) De J 566
  • Coquero Limited -vs- Bruce Joseph Bockle (Mombasa High Court Civil Case No. 59 of 2006, now Malindi ELC case 20 of 2016)
  • Malindi Civil Appeal No. 41 of 2013
    judgment delivered 3rd April 2014
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (interlocutory application in a claim for adverse possession)

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, "Irene Thadde Avermann v Coquero Limited [2017] KEELC 2975 (KLR)", Case Analysis (2017). ELC Application dated 25th November 2016 (arising from Originating Summons filed 28th November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2975/eng@2017-05-12

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