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ELCAllowedNotice of motion dated March 20, 2019 (suit filed May 30, 2018 defence)· [2022] KEELC 3189 (KLR)

Hamisi v Mwambire & 3 others (Environment & Land Case 70 of 2015) [2022] KEELC 3189 (KLR)

Environment and Land Court
12 May 2022
JOJ. O. Olola
713 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped people occupying someone's registered land without permission, ruling that a claim for unpaid work does not justify staying on another person's property.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated March 20, 2019 in which Asha Hamisi, the plaintiff and registered owner of parcel Chembe/Kibabamshe/262 in Kilifi County, sought a temporary injunction against four defendants alleged to have invaded the land, cleared it, cut down trees, constructed mud-and-wattle houses and harvested coral stones for sale since January 2014. The defendants filed no reply to the application; their joint statement of defence admitted the plaintiff's ownership and their own occupation, contending instead that the plaintiff had engaged them to provide clearing, palm-planting and caretaker services and that they would vacate once their unspecified fees were settled. The court, applying Order 40(1)(a) and (b) of the Civil Procedure Rules, 2010, held that the defendants' own pleadings established the plaintiff's registered title and their unauthorised occupation. It found that persons occupying land without the registered proprietor's authority acquire no proprietary interest, and that a claim for unspecified fees is no basis for remaining on the land. Concluding that the suit property was in danger of being wasted by the defendants' activities, the court found merit in the motion and allowed it in terms of Prayer No. 3, granting the temporary injunction with costs to the plaintiff. The ruling was delivered virtually at Nyeri on May 12, 2022 by J. O. Olola J.

Key legal issues

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01

Whether the conditions for an interlocutory injunction under Order 40(1) of the Civil Procedure Rules were met

Holding

Yes - the property was in danger of being wasted by the defendants' activities, warranting a temporary injunction

Reasoning

The court applied Order 40(1)(a) and (b) of the Civil Procedure Rules, 2010. The defendants' own pleadings admitted that the plaintiff is the registered proprietor and that they occupy and use the land. Having no proprietary interest, their continued use was unauthorised; their claim for unspecified caretaker fees could not justify their stay. The court was therefore persuaded the property was in danger of being wasted and allowed the motion.

p. 2

Legal principles established

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  • A party occupying land without the authority of the registered proprietor, even at the proprietor's initial invitation, has no proprietary interest justifying continued occupation; a claim for unpaid fees is no basis for staying on the land.

Court orders

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  1. 1.Temporary injunction in terms of Prayer No. 3 of the Motion dated March 20, 2019 restraining the defendants from trespassing onto, or carrying out any activity or dealing in any manner with, parcel Chembe/Kibabamshe/262
  2. 2.Costs of the application to the plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 rule 1(a) and (b)
Jurisdiction invoked
Order 40(1)(a) and (b) of the Civil Procedure Rules, 2010 (interlocutory injunction)

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, "Hamisi v Mwambire & 3 others (Environment & Land Case 70 of 2015) [2022] KEELC 3189 (KLR)", Case Analysis (2022). Notice of motion dated March 20, 2019 (suit filed May 30, 2018 defence). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3189/eng@2022-05-12

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