Kimagut Arap Kiyai & 4 others v Samuel Matunda Muchina [2020] KEELC 513 (KLR)
The bottom line
#An Eldoret court dismissed land occupants' injunction bid because they hid a related lawsuit and couldn't prove their occupation was adverse, not with the owner's consent.
What this practically means
#Executive summary
#Key legal issues
#Duty of full disclosure on ex parte applications
The applicants failed to disclose the related ELC No. 133 of 2014 pending ruling, justifying vacation of the ex parte status quo orders and refusal to reinstate them.
The court held that parties seeking ex parte relief must act in utmost good faith and disclose material facts. The applicants concealed ELC No. 133 of 2014, in which the respondent had obtained a judgment and eviction orders. Non-disclosure was an abuse of process, so the vacation of the status quo orders was proper and reinstatement was refused.
Prima facie case for injunction based on adverse possession
No prima facie case established: the applicants' claimed occupation was possibly by consent (as purchasers), inconsistent with adverse possession, and they produced no sale agreements.
The applicants claimed over 12 years' occupation for adverse possession, yet also claimed to be purchasers from the respondent or third parties without annexing agreements. Possession with the owner's consent defeats adverse possession. The court also reasoned that a registered owner aware of occupation would have enjoined the occupants in the earlier suit, casting doubt on their claim.
Irreparable harm
Having failed on the prima facie case test, the applicants need not be considered on irreparable harm; none was established.
The court applied the sequential Giella principles: having found no prima facie case with probability of success, it found no irreparable harm would ensue. The applicants had put forth the bare minimum, and the court, though not deciding the adverse possession claim on its merits, required a sufficient foundation for interim relief.
Legal principles established
#- A party appearing ex parte owes a compelling duty of full and fair disclosure of all material facts to the court
- Occupation derived from the proprietor's permission or agreement is not adverse possession
Court orders
#- 1.Dismissal of the application dated 28th July 2020 seeking reinstatement of the status quo orders, with costs to the respondent
- 2.Dismissal of the application dated 22nd June 2020 seeking injunctions, with costs to the respondent
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over land matters (suit parcel UASIN GISHU/NDALAT/30); no specific constitutional/statutory provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimagut Arap Kiyai & 4 others v Samuel Matunda Muchina [2020] KEELC 513 (KLR)", Case Analysis (2020). Not stated in the judgment (related: Eldoret ELC No. 133 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/513/eng@2020-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.