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ELCDismissed· [2018] KEELC 4567 (KLR)

Felister Joyce Okaa v Zachariah Kuya Okata [2018] KEELC 4567 (KLR)

Environment and Land Court
7 February 2018
NMN.A. MATHEKA
4,110 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to protect a widow's 27-year occupation because ongoing lawsuits and rent demands proved her possession was never peaceful or uninterrupted.

What this practically means

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Executive summary

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The applicant, a widow who claimed to have occupied land parcel No. W/BUNYORE/EBUSAKAMI/1852 measuring 0.5 acres since her 1987 customary marriage, applied by notice of motion dated 6th September 2017 for an interim injunction restraining the respondent from interfering with, constructing on or trespassing on the parcel, a stay of proceedings in Maseno PMCC No. 115 of 2014, and the transfer and consolidation of that suit with the present suit. She grounded her claim on adverse possession, asserting over 27 years of peaceful, uninterrupted occupation. The respondent, the registered owner and the applicant's uncle, opposed the application, contending that the applicant and her husband were tenants whose occupation was a licence; he relied on rent demand letters of 26th October 1987 and 29th March 2007, the dismissal of Kisumu HCC No. 241 of 1986 (brought by the applicant's husband), and his pending Maseno suit for vacant possession on grounds of nonpayment of rent. He argued the present suit was res judicata, sub judice and an abuse of process, and that frequent litigation interrupted any adverse possession. Applying the Giella vs Cassman Brown conditions and the definition of a prima facie case in Mrao Ltd, the court held that the tenets of adverse possession were not met because the applicant's occupation was marred by interruptions, and that she failed to establish a prima facie case with probability of success. The prayers for stay and transfer also failed, the Maseno suit having been filed in a competent court, with the applicant appearing to engage in forum shopping. The application was dismissed with costs to the respondent on 7th February 2018.

Key legal issues

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01

Whether the applicant established a prima facie case for an interlocutory injunction founded on adverse possession

Holding

The court held that the applicant failed to establish a prima facie case with probability of success and was not entitled to injunctive orders

Reasoning

Applying Giella vs Cassman Brown and Mrao Ltd vs First American Bank of Kenya Ltd, the court found the tenets of adverse possession unmet. The applicant's occupation was subject to constant interruptions through Vihiga Criminal Case No. 620 of 1987, Kisumu HCC No. 241 of 1986 and Maseno PMCC No. 115 of 2014, and the respondent asserted a tenancy relationship supported by rent demand letters of 26th October 1987 and 29th March 2007. Her occupation was therefore not peaceful, uninterrupted and continuous.

p. 6
02

Whether the suit was res judicata Kisumu HCC No. 241 of 1986

Holding

The court, on the applicant's submissions, treated res judicata as not arising because the parties and causes of action differed and the earlier suit was dismissed for want of prosecution without determination on the merits; however, the court found the application to be an abuse of process

Reasoning

The applicant argued that Kisumu HCC No. 241 of 1986 involved different parties and that the dismissal order showed the case was never determined on its merits, while the present cause of action was adverse possession rather than vacant possession. The respondent countered that the husband had sued over the same property and that the dismissal conclusively determined the matter. The court did not make a definitive res judicata holding but characterized the application as mischievous and abusive of due process.

p. 2
03

Whether the Maseno proceedings should be stayed and the suit transferred and consolidated with this suit

Holding

Both prayers failed; the Maseno case was filed in a competent court and the applicant was forum shopping

Reasoning

The court noted that Maseno PMCC No. 115 of 2014, seeking vacant possession for nonpayment of rent, was ongoing and at an advanced stage of hearing. Citing the Court of Appeal decision in LSK Nairobi Branch vs Malindi Law Society & Others and the David Kabungu vs Zikarenga principles, the court found no compelling reason to stay or transfer, and no proper procedure had been invoked for transfer. The applicant's attempt was characterized as forum shopping.

p. 6

Legal principles established

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  • The conditions for granting an interlocutory injunction are: a prima facie case with probability of success; irreparable injury not adequately compensable in damages; and, if in doubt, the balance of convenience
  • A prima facie case is one showing an apparently infringed right calling for an explanation or rebuttal from the opposite party; it is more than an arguable case
  • The burden lies on an applicant for transfer of a suit to make out a strong case for the transfer; a mere balance of convenience is insufficient
  • Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit
  • Occupation for adverse possession must be devoid of interruptions; frequent litigation between the parties interrupts possession

Court orders

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  1. 1.The application dated 6th September 2017 was dismissed with costs to the respondent
  2. 2.Interlocutory injunction restraining interference with or construction/trespass on parcel No. W/BUNYORE/EBUSAKAMI/1852 was refused
  3. 3.Prayer for stay of proceedings in Maseno Law Courts Civil Case No. 115 of 2014 was refused
  4. 4.Prayer for transfer and consolidation of Maseno Civil Case No. 115 of 2014 with this suit was refused

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A
  • Civil Procedure Rules 2010Order 37; Order 11 rule 3(1)(h); Order 40 rules 1(a, b), 4(1, 4); Order 51 rules 1, 3, 4, 5, 7 and 10(2)
  • Limitation of Actions ActSections 37 and 38
  • Land Registration Act No. 3 of 2012Sections 27 and 28
  • Civil Procedure Act (Uganda)Section 18(1)(b) (quoted in David Kabungu vs Zikarenga)

Cases cited (8)

  • Embu County Government vs. Jim Reeves Gitonga Njiru
    (2017) eKLR
  • Giella vs. Cassman Brown
    (1973) EA 358
  • E.T. VS. Attorney General & Another
    (2012) eKLR
  • Omondi vs. National Bank of Kenya Ltd and others
    (2001) EA 177
  • Njangu vs. Wambugu & Another
    Nairobi HCC No. 2340 of 1991 (unreported)
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    (2003)
  • David Kabungu vs. zikarenga & 4 others
    Kampala HCCS NO. 36 OF 1995
  • LSK Nairobi Branch vs. Malindi Law Society & Others
    Nairobi Civil Appeal 287 of 2016
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act, Orders 11, 37, 40 and 51 of the Civil Procedure Rules 2010, Sections 37 and 38 of the Limitation of Actions Act and Sections 27 and 28 of the Land Registration Act No. 3 of 2012 (invoked in the application)

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, "Felister Joyce Okaa v Zachariah Kuya Okata [2018] KEELC 4567 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4567/eng@2018-02-07

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