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High CourtDismissedNot stated in judgment (application dated 21st December, 2012)

Plaintiff/Applicant v Defendant (Temporary Injunction - L.R No. 209/9943 Parklands)

High Court of Kenya
8 March 2013
MGMary M. Gitumbi
923 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A pending claim for ownership through adverse possession alone cannot grant you the legal right needed to stop someone from taking action against your property.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the High Court by Notice of Motion dated 21st December, 2012 under Section 1A and Order 40 Rules 1, 2 and 4 of the Civil Procedure Act seeking a temporary injunction restraining the Defendant from interfering with L.R No. 209/9943 Parklands pending the hearing of the suit. She swore she had occupied the property since about 1981, admitted taking possession without force, secrecy or title, and disclosed a pending adverse possession suit (HCC ELC NO. 667 OF 2009) seeking title, plus a competing ownership dispute (HCC ELC NO. 472 OF 2009) between two title holders. She alleged the Defendant demolished structures on 20th December, 2012 without notice, and feared irreparable harm from eviction. The Defendant, in a Reply Affidavit sworn by Karisa Iha, denied her beneficial ownership and locus standi, and asserted its statutory mandate under Section 29 of the Physical Planning Act to regulate development, contending her structures were unapproved and illegal. Applying the Giella v Cassman Brown test and the Mrao definition of a prima facie case, Gitumbi J held the applicant held no title document and that a pending adverse possession claim confers no legal right; she could only speculate on its outcome. The first limb of the test failing, the court declined to consider the remaining limbs and dismissed the application with no order as to costs.

Key legal issues

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01

Whether an applicant without title, relying on a pending adverse possession suit, can establish a prima facie case for an interlocutory injunction

Holding

No - a pending adverse possession claim confers no legal right; the applicant can only speculate on the outcome

Reasoning

The court applied the Giella three-part test. The applicant admitted taking possession without force, secrecy or title and had no title document. Her only claim was through an undetermined adverse possession suit, so no legal right had apparently been infringed. Having failed the first limb, the court did not consider irreparable harm or balance of convenience.

p. 2

Legal principles established

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  • Filing a suit claiming ownership through adverse possession does not confer any legal right over the suit property pending determination of that suit

Court orders

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  1. 1.The application dated 21st December, 2012 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Section 1A and Order 40 Rules 1, 2 and 4 of the Civil Procedure Act and Rules

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, "Plaintiff/Applicant v Defendant (Temporary Injunction - L.R No. 209/9943 Parklands)", Case Analysis (2013). Not stated in judgment (application dated 21st December, 2012). Source:

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