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ELCDismissedNotice of Motion dated 6th March 2015 (suit pending)· [2018] KEELC 3111 (KLR)

Dulcie Loveday Spencer v Jonathan Stewart Coulson & 3 others [2018] KEELC 3111 (KLR)

Environment and Land Court
12 April 2018
MGMARY M. GITUMBISOSAMSON OKONGO
2,740 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 block a land sale because the occupier lived there with the owner's permission, so she could not claim ownership by adverse possession.

What this practically means

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Executive summary

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The plaintiff/applicant, Dulcie Loveday Spencer, moved the court by Notice of Motion dated 6th March 2015 seeking a temporary injunction restraining the respondents from leasing, selling, advertising, trespassing on, subdividing or otherwise dealing with LR Number 13114/7, Langata, pending the hearing of the suit. She sued on her own behalf and on behalf of the estate of her late brother Frank Heathcote Howitt, who died on 6th May 2013, asserting she had occupied the property since 1977 and had thereby acquired title by adverse possession under the Limitation of Actions Act. The first respondent, Jonathan Stewart Phillip Coulson, joint executor of the estate of Terence Gordon Coulson, deposed that the deceased sold the property to Terence Gordon Coulson and Malcolm Rex Higgins in 1987, transfer was registered on 30th December 1987, and the deceased and his family (including the applicant) remained only under a licence agreement made on 17th July 2002. The applicant responded that the sale was void, the transfer forged and fraudulently registered. Applying Giella v Cassman Brown, the court found the sole question was whether a prima facie case with probability of success existed. Relying on Wanje v Saikwa (No. 2) and Jandu v Kirpal, the court held that the applicant's occupation was permissive under the licence to the deceased and his family and therefore not adverse; hence no prima facie case was established. Because the Giella conditions are sequential (per Afraha Education Society and Nguruman), the other limbs were not considered. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the applicant demonstrated a prima facie case with probability of success based on adverse possession

Holding

No. Her occupation was permissive under a licence granted to the deceased and his family, so possession was not adverse

Reasoning

The applicant claimed adverse possession having resided on the property since 1977. The respondents produced a licence agreement made on 17th July 2002 permitting the deceased, by himself and his family (which included the applicant), to occupy the property. Possession must be nec vi, nec clam, nec precario with animus possidendi. Since occupation was with permission, it could not be adverse, and no prima facie case was established.

p. 3
02

Whether the court needed to consider irreparable injury and balance of convenience

Holding

No; because the applicant failed the first Giella condition, the court need not venture into the other grounds

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society and Nguruman Ltd v Jan Bonde Nielsen, the court held the Giella conditions are sequential. Having found no prima facie case with probability of success, the second and third conditions fall away and the application must fail.

p. 3

Legal principles established

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  • A person who occupies another person's land with consent cannot be in adverse possession because the possession is not illegal and the owner has not been dispossessed
  • The conditions in Giella v Cassman Brown are sequential; failure to establish a prima facie case ends the inquiry

Court orders

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  1. 1.The Notice of Motion dated 6th March 2015 seeking a temporary injunction is dismissed
  2. 2.Each party shall bear their own costs
Jurisdiction invoked
Original jurisdiction of the High Court/Environment and Land Court; Section 38(1) of the Limitation of Actions Act invoked for adverse possession claims

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, "Dulcie Loveday Spencer v Jonathan Stewart Coulson & 3 others [2018] KEELC 3111 (KLR)", Case Analysis (2018). Notice of Motion dated 6th March 2015 (suit pending). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3111/eng@2018-04-19

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