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ELCOtherELC OS No. 30 of 2021 (Originating Summons)· [2021] KEELC 1283 (KLR)

George Waweru & 205 others v Bamburi Cement Limited [2021] KEELC 1283 (KLR)

Environment and Land Court
29 October 2021
5,449 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This Ruling of the Environment and Land Court at Machakos (O. A. Angote, J.) determined two applications in a suit commenced by Originating Summons on 3rd May 2021. Approximately 280 Applicants, claiming to occupy Title IR No. 199340, LR No. 14750/36 at Athi River, sought a temporary injunction restraining National Cement Company Limited from interfering with the land, claiming they had occupied it for over 20 years so that their title had crystallised by adverse possession. The Respondent, the registered proprietor since 2007 which purchased the land for pozzolana mining, applied to set aside the ex parte injunction orders of 3rd June 2021, contending it was never served with a hearing notice. The court found that although the Application was served physically, no hearing notice was validly served: the Affidavit of Service did not mention email service, the alleged email did not state the hearing date, and no delivery receipt was exhibited as required by Order 5 Rule 22B of the Civil Procedure Rules. The allegation of email service was found false. On the injunction, applying Giella v Cassman Brown, Mrao and Nguruman, the court held the Applicants had not established a prima facie case of adverse possession: their blanket claim of 20 years' occupation lacked particulars of entry and dispossession, their photographs were undated and unverified, and they failed to explain their non-objection to the 2015 change of user. Irreparable injury and balance of convenience also failed them. The court dismissed the Applicants' application with costs, allowed the Respondent's application with costs, and set aside the orders of 3rd June 2021 and the status quo orders of 27th July 2021.

Key legal issues

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01

Validity of service of the hearing notice by email and whether ex parte orders should be set aside

Holding

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

Reasoning

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.

p. 4
02

Whether the Applicants established a prima facie case of adverse possession

Holding

No prima facie case was established; the Applicants gave no details of entry, dispossession or the adverse character of their use

Reasoning

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.

p. 6
03

Irreparable injury and balance of convenience

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Applicants' Application dated 28th April, 2021 is dismissed with costs
  2. 2.The Respondent's Application dated 17th June, 2021 is allowed with costs
  3. 3.The orders of this court of 3rd June, 2021 and the status quo orders of 27th July, 2021 are hereby set aside

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 22B
  • Limitation of Actions ActSections 7, 13, 17 and 38(1)

Cases cited (12)

  • American Cyanamid Co. vs Ethicon Limited
    (1975) AC 396
  • Giella vs Cassman Brown
    (1973) EA 358
  • Mrao vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
  • Kimani Ruchine vs. Swift Rutherford & Co. Ltd
    [1980] KLR
  • Teresa Wachuka Gachira vs. Joseph Mwangi Gachira
    (2009) eKLR
  • Benjamin Kamau Murima & Others vs. Gladys Njeri
    Civil Appeal No. 213 of 1996
  • Karnataka Board of Wakf vs. Government of India & Others
    (2004) 10 SCC 779
  • Kynoch Ltd vs Rowlands
    [1912] 1 Ch 527
  • Littledale vs Liverpool College
    [1900] 1 Ch 19
  • Leigh v Jack
    (1879) 5 Ex D 264
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

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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, "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.