Benson Mbithi Wambua & 7 others (Suing on their own behalf and on behalf of the squatters and residents of land registration numbers 209/9945, 209/9947, 209/9946, 209/9949 and 209/11975 also known as Deep Sea Settlement Scheme) v Sheraton Apartments Ltd & 5 others [2021] KEELC 2221 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Prima facie case for adverse possession at interlocutory stage
The Applicants failed to demonstrate a prima facie case as they did not adduce evidence of their occupation of the Suit Property or the portions they occupy
The Applicants claimed to have occupied the Suit Property openly and continuously for over twelve years, acquiring prescriptive rights under the Limitation of Actions Act. However, they did not adduce evidence showing which portions of the Suit Property they occupied, when time began running, or the developments claimed. Without such evidence, the court could not find a prima facie case warranting an interlocutory injunction.
Res judicata arising from ELC No. 620 of 2005
The court declined to find the suit res judicata at the interlocutory stage, as the nexus between the Applicants and the Defendants in the former suit required evidence to be led at trial
The Respondents argued the suit was res judicata given the judgment and eviction orders in ELC No. 620 of 2005. The court found it difficult at that stage to determine the nexus between the Applicants and the Defendants in that suit; evidence would be needed. The Applicants contended the former suit was in personam and did not bind them. The court deferred this determination to trial while taking into account the Respondents' 2005 suit against trespassers.
Commencement of time for adverse possession
When time started running for the adverse possession claim must be determined at trial, considering the Respondents' 2005 suit against trespassers
The Applicants alleged occupation from the 1970s or 1968, while the Respondents asserted trespass began in 2005 when they filed suit. The court held that determining when time began to run requires evidence at trial, taking into account the Respondents' earlier suit against the trespassers on their land. This was a question of fact unsuitable for determination on an interlocutory application.
Legal principles established
#- A party seeking an interlocutory injunction must demonstrate a prima facie case with a probability of success and irreparable harm not compensable by damages
- The doctrine of res judicata requires proof of a nexus between parties or their agents in the prior suit; this cannot be established on an interlocutory application and must await trial
Court orders
#- 1.The application dated 28/11/2019 is dismissed; the orders of injunction sought are declined
- 2.Costs of the application shall be in the cause
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (Originating Summons for injunction and declaration of adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mangi & 7 others v Noor & 4 others[2022] KEELC 15239 (KLR)6 Dec 2022
Cite this brief
#Cite this brief
Caselaw, "Benson Mbithi Wambua & 7 others (Suing on their own behalf and on behalf of the squatters and residents of land registration numbers 209/9945, 209/9947, 209/9946, 209/9949 and 209/11975 also known as Deep Sea Settlement Scheme) v Sheraton Apartments Ltd & 5 others [2021] KEELC 2221 (KLR)", Case Analysis (2021). ELC Originating Summons (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2221/eng@2021-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.