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ELCPartially AllowedNot stated in judgment (Originating Summons dated 6th December, 2023)· [2024] KEELC 6443 (KLR)

Maritim v Tele (Enviromental and Land Originating Summons 13 of 2023) [2024] KEELC 6443 (KLR)

Environment and Land Court
3 October 2024
4,867 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kericho court protected a man who occupied land for over 20 years, barring its sale or transfer until his ownership claim is decided.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kericho (L. A. Omollo, J) determines the Applicant's Notice of Motion dated 6th December, 2023, brought under Order 40 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, in a pending Originating Summons claiming 1.55 acres of LR No. Kericho/Roret/1508 by adverse possession. The Applicant contended he purchased the land in 1998 and 2001, took possession, developed it with tea and a home, and enjoyed over twenty years of open, quiet occupation, but that the Respondent had recently encroached and destroyed trees. The Respondent filed Grounds of Opposition arguing the claim arose from sale agreements rather than adverse possession, that the land is agricultural land subject to the Land Control Act, and that the claimed portion was not definitely identified. The court framed three issues: the injunction threshold, whether inhibition should issue, and costs. Applying Giella vs Cassman Brown and Mrao Ltd, the court found a prima facie case with probability of success, irreparable injury given the long occupation and developments, and the balance of convenience favouring the Applicant. Invoking Section 68(1) of the Land Registration Act and Dorcas Muthoni vs Michael Ireri Ngari, it also granted an inhibition to preserve the property. The application was allowed; costs were ordered to abide the outcome of the suit.

Key legal issues

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01

Whether the Applicant established a prima facie case with a probability of success

Holding

The court found the Applicant demonstrated a prima facie case with probability of success based on the sale agreements, possession and evidence of encroachment

Reasoning

The Applicant attached copies of land sale agreements, maps and photographs showing trees cut down. The Respondent admitted the Applicant was in possession. On this material the court concluded that the Applicant had sufficiently demonstrated a right apparently infringed, warranting an explanation or rebuttal from the Respondent, and therefore a prima facie case existed.

p. 9
02

Whether the Applicant would suffer irreparable injury not compensable in damages and where the balance of convenience lies

Holding

The court accepted that over twenty years of occupation and substantial developments placed the suit property in danger of waste, and that the balance of convenience favoured granting injunctive relief

Reasoning

Applying Pius Kipchirchir Kogo vs Frank Kimeli Tenai on irreparable injury and balance of convenience, the court noted the Applicant had occupied the land for over twenty years, built a home and planted crops, and was apprehensive the property would be wasted. The court held the balance of convenience favoured granting the injunction.

p. 10
03

Whether an order of inhibition should issue over LR No. Kericho/Roret/1508

Holding

The court issued an inhibition under Section 68(1) of the Land Registration Act to preserve the suit property pending trial

Reasoning

Relying on Dorcas Muthoni & 2 Others vs Michael Ireri Ngari as cited in Daniel Gitau Kuria v Muthoni Mbugua Ndumo & 3 others, the court held that an inhibition bars the registered owner from registering dealings over disputed property and preserves it pending the hearing and determination of the suit. The Respondent did not address this issue in submissions.

p. 10

Legal principles established

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  • Conditions for grant of a temporary injunction are a prima facie case with probability of success, irreparable injury not compensable in damages, and, if in doubt, the balance of convenience
  • An order of inhibition under Section 68 of the Land Registration Act is similar to a prohibitory injunction and preserves disputed property pending trial
  • Costs follow the event under Section 27 of the Civil Procedure Act unless the court for good reason directs otherwise

Court orders

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  1. 1.An order of temporary injunction restraining the Defendants whether by themselves, their agents and/or servants, from selling, sub-dividing, charging, transferring, encroaching on and/or interfering with the Plaintiff's quiet possession of 1.55 acres of land comprised in LR No. Kericho/Roret/1508 pending the hearing and determination of this suit
  2. 2.An order of inhibition restraining any dealings, registration and transactions whatsoever over that land parcel known as LR No. Kericho/Roret/1508 pending the hearing and determination of this suit
  3. 3.The costs of the application shall abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40; Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A, 27
  • Land Control ActCap 302; Section 22
  • Limitation of Actions Actnull
  • Land Registration ActSection 68(1)

Cases cited (12)

  • Public Trustee v Wanduru Ndegwa
    [1984] eKLR
  • Kasuve vs Mwaani Investments Limited & 4 Others
    [2004] eKLR
  • Giella vs Cassman Brown
    [1973] EA 358
  • Mrao Ltd versus First American Bank of Kenya Limited
    [2003] eKLR
  • Re Estate of the Late Mwirichia Nkungi (Deceased)
    (Miscellaneous Succession Cause E012 of 2022) [2023] KEHC 2605 (KLR) (16 March 2023) (Ruling)
  • Bejoy Chundra vs Kally Prosonno
    [1878] 4 Cal 1327
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Levben Products vs Alexander Films (SA) (PTY) Ltd
    1957 (4) 225 (SR) at 227
  • Party of Independent Candidate of Kenya & another vs Mutula Kilonzo & 2 Others
    [2013] eKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    [2018] eKLR
  • Dorcas Muthoni & 2 Others Vs Michael Ireri Ngari
    [2016] eKLR
  • Daniel Gitau Kuria v Muthoni Mbugua Ndumo & 3 others
    [2021] eKLR
Jurisdiction invoked
Order 40 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act; Section 68(1) of the Land Registration Act

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, "Maritim v Tele (Enviromental and Land Originating Summons 13 of 2023) [2024] KEELC 6443 (KLR)", Case Analysis (2024). Not stated in judgment (Originating Summons dated 6th December, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6443/eng@2024-10-03

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