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ELCDismissedApplication dated 1st March, 2018 (filed alongside Originating Summons of the same date)· [2019] KEELC 2445 (KLR)

Dominic Katua Nzioki & 2 others v Ziba Trustees Limited & another [2019] KEELC 2445 (KLR)

Environment and Land Court
12 July 2019
2,915 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court dismissed 98 claimants' bid to stop a landowner dealing with a 101-acre parcel because they couldn't individually prove they actually occupied it.

What this practically means

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Executive summary

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The Applicants, officials of Ngelani Pioneer Society claiming to act for 98 members, moved the Environment and Land Court at Machakos by a Notice of Motion dated 1st March 2018 seeking a temporary injunction restraining the Respondents from entering, evicting, subdividing, selling or otherwise dealing with land title No. 81100/3 in the Mavoko Settlement Scheme, pending the hearing of an Originating Summons in which they sought a declaration of title by adverse possession. They deponed that they settled on the land in 2004, built houses, schools and churches, and had acquired title by adverse possession after over twelve years of occupation. The 2nd Respondent, the registered proprietor, countered that it purchased the land from the 1st Respondent for Kshs. 440 million and took vacant possession in 2013, supported by three valuation reports (2012, 2014, 2016) describing the land as vacant except for an abandoned farm building and a quarry, a newspaper advertisement warning trespassers, and a court site visit. The court applied the Giella v Cassman Brown test and the principle in Nguruman that failure at the first stage ends the inquiry. It found the Applicants' evidence general and internally contradictory (claiming both 15 and 25 years of occupation), lacking individual proof of each member's house, location and chronology of entry on the 101.2-acre parcel. Holding that no prima facie case with a probability of success had been demonstrated, the court dismissed the application with costs on 12th July 2019.

Key legal issues

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01

Whether the Applicants established a prima facie case for an interlocutory injunction

Holding

The Applicants failed to establish a prima facie case with a probability of success; consequently the injunction could not issue and the other Giella conditions needed no consideration.

Reasoning

The court applied the Giella test as restated in Kenya Commercial Finance and Nguruman. Although the Applicants deponed they entered the land in 2004, they contradicted themselves by claiming twenty-five years of occupation. The 98 Applicants produced no individual photographs of houses, no chronology of occupation, no indication of which portion of the 101.2-acre land each occupied, and no explanation of the circumstances of entry. This general evidence was insufficient to show an apparently infringed right calling for rebuttal.

p. 4
02

Whether the Applicants had taken possession sufficient for adverse possession

Holding

The Applicants had not demonstrated exclusive, continuous physical control of the land with the requisite animus possidendi.

Reasoning

Relying on Sections 13 and 38 of the Limitation of Actions Act, the court held that adverse possession requires physical custody and control plus intention to possess for one's own benefit. Possession is a question of fact; trivial acts by a squatter are insufficient. The 2nd Respondent's three valuation reports (2012, 2014, 2016) described the land as vacant with only an abandoned farm building and a quarry, corroborated by the Deputy Registrar's site visit, contradicting the Applicants' claim of occupation.

p. 3

Legal principles established

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  • For adverse possession, the claimant must prove sufficient physical custody and control of the land and the intention (animus possidendi) to exercise such custody for his own benefit
  • A general assertion of occupation without evidence of the location and extent of each claimant's occupation cannot establish a prima facie case

Court orders

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  1. 1.The Application dated 1st March, 2018 is dismissed
  2. 2.Costs of the Application awarded to the Respondents

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 13(1)

Cases cited (7)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) 1 EA 358
  • Kenya Commercial Finance Co. Limited vs. Afraha Education Society
    (2001) 1 E.A 86
  • Nguruman Ltd vs. Jan Bonde Nielsen
    (2014) eKLR
  • Mrao Ltd vs. First American Bank of Kenya Limited and 2 others
    (2003) KLR 125
  • J A Pye (Oxford) Ltd vs. Graham
    (2002) Ch. 676
  • Mombasa Autocare Ltd vs. Japhet Pasi Kilonga & Anor
    (2014) eKLR
  • John O. Oyalo Wabala vs. Corne Lius Otataya Okume
    Civil Appeal No. 208 of 1997
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land within Machakos County; claim anchored on Section 38(1) of the Limitation of Actions Act

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, "Dominic Katua Nzioki & 2 others v Ziba Trustees Limited & another [2019] KEELC 2445 (KLR)", Case Analysis (2019). Application dated 1st March, 2018 (filed alongside Originating Summons of the same date). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2445/eng@2019-07-12

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