George Waweru & 205 others v Bamburi Cement Limited [2021] KEELC 1283 (KLR)
The bottom line
#280 Kenyans lost their bid to stop National Cement's mining because vague claims of 20 years' occupation and invalid court service were not enough.
What this practically means
#Executive summary
#Key legal issues
#Validity of service of the hearing notice by email and whether ex parte orders should be set aside
The ex parte orders of 3rd June 2021 were set aside because the Applicants did not validly serve the Respondent with a hearing notice; the Affidavit of Service did not mention email service and no delivery receipt was exhibited
Order 5 Rule 22B requires email service to be to the defendant's last confirmed and used email address and deemed effected only upon a delivery receipt. The Applicants neither showed that corp.info@lafargeholcim.com was the Respondent's confirmed email nor exhibited a delivery receipt. The court found the allegation of email service to be an afterthought and false, entitling the Respondent to have the ex parte orders set aside.
Whether the Applicants established a prima facie case of adverse possession
No prima facie case was established; the Applicants gave no details of entry, dispossession or the adverse character of their use
Applying Giella v Cassman Brown, Mrao and Nguruman, the court held that an adverse possession claimant must show nec vi, nec clam, nec precario possession for 12 or more years and dispossession of the owner. The Applicants' undated photographs without an affidavit from the photographer, and their failure to explain non-objection to the 2015 change of user, meant their 20-year occupation claim could not stand even prima facie.
Irreparable injury and balance of convenience
Having failed on prima facie case, the Applicants also failed to show irreparable injury, and the balance of convenience tilts towards the Respondent, the registered proprietor in occupation and mining since 2007
The court reasoned that not having established occupation of the entire 105 acres, the Applicants could not demonstrate irreparable injury not compensable in damages. The Respondent had purchased the land in 2007, kept mining machinery on it and was in occupation; hence the Respondent was entitled to occupy and use the property pending trial.
Legal principles established
#- Service of summons by electronic mail is deemed effected only when the sender receives a delivery receipt, and must be sent to the defendant's last confirmed and used email address
- A claimant for adverse possession must prove possession that is adequate in continuity, publicity and extent, and must show dispossession or discontinuance of possession by the true owner
- A blanket, unsubstantiated deposition of long occupation without stating when and how entry was made and how the proprietor was dispossessed cannot sustain even a prima facie claim of adverse possession
Court orders
#- 1.The Applicants' Application dated 28th April, 2021 is dismissed with costs
- 2.The Respondent's Application dated 17th June, 2021 is allowed with costs
- 3.The orders of this court of 3rd June, 2021 and the status quo orders of 27th July, 2021 are hereby set aside
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court under Sections 7 and 38(1) of the Limitation of Actions Act in relation to claims of adverse possession over land; Civil Procedure Rules Order 5 Rule 22B on service of process
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Waweru & 205 others v Bamburi Cement Limited [2021] KEELC 1283 (KLR)", Case Analysis (2021). ELC OS No. 30 of 2021 (Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1283/eng@2021-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.