[2018] KEELC 3940 (KLR)
The court found that the applicants, particularly the 1st applicant, had demonstrated a prima facie case based on long-term occupation of the suit land and the existence of a possible trust. The evidence showed that the 1st applicant was born and raised on the land, and the applicants' mother (the 3rd applicant's...
Source-derived case information.
- Citation
- [2018] KEELC 3940 (KLR)
- Parties
- Applicant: Cosmas Cherono; Applicant: William Cherono; Applicant: Brian Rono; Respondent: Veronicah Cherono
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 105 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction and Stay Application
- Outcome
- Interlocutory injunction granted; status quo to be maintained pending hearing and determination of the suit.
- Judges
- A Ombwayo
- Legal Topics
- Adverse Possession, Injunctive Relief, Trusts in Land, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cosmas Cherono
Applicant
William Cherono
Applicant
Brian Rono
Applicant
Veronicah Cherono
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction and Stay Application
Legal Issues
- 1 Whether the applicants have established a prima facie case for an interlocutory injunction based on adverse possession and/or trust.
- 2 Whether the applicants will suffer irreparable harm if the injunction is not granted.
- 3 Whether the balance of convenience favors maintenance of the status quo pending trial.
Ratio Decidendi
The court found that the applicants, particularly the 1st applicant, had demonstrated a prima facie case based on long-term occupation of the suit land and the existence of a possible trust. The evidence showed that the 1st applicant was born and raised on the land, and the applicants' mother (the 3rd applicant's grandmother) also resided there. The court determined that eviction at this stage would cause irreparable harm to the applicants, which could not be compensated by damages. The balance of convenience required that the status quo be maintained to prevent prejudice to either party pending the full hearing and determination of the suit. Accordingly, the court granted an order...
Court Disposition
Interlocutory injunction granted; status quo to be maintained pending hearing and determination of the suit.
Orders
- A temporary order of injunction is granted restraining the respondent and her agents from trespassing, encroaching, ploughing, altering records, or subdividing parcel No. Irong/Kapkonga/117 pending hearing and determination of the suit.
- Each party is to maintain utilization of the portion of land currently in their occupation.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 105 OF 2016
IN THE MATTER OF AN APPLICATION FOR AN ORDER OF ADVERSE POSSESSION
AND
IN THE MATTER OF LAND PARCEL NO. KEIYO/MARAKWET/IRONG/KAPKONGA/117
AND
IN THE MATTER OF LIITATION OF ACTIONS ACT CHAPTER 22, LAWS OF KENYA
AND
IN THE MATTER OF THE CIVIL PROCEDURE RULES OF KENYA, 2010
AND IN THE MATTEER OF THE LAND REGISTRATION ACT, ACT NO. 3 OF 2012
AND IN THE MATTER OF AN APPLICATION BY:
COSMAS CHERONO....................................1ST APPLICANT
WILLIAM CHERONO....................................2ND APPLICANT
BRIAN RONO..................................................3RD APPLICANT
VERSUS
VERONICAH CHERONO................................RESPONDENT
RULING
Cosmas Cherono, William Cherono and Brian Rono, (hereinafter referred to as applicants) have come to court against Veronicah R. Cherono, (hereinafter referred to as the respondent) praying for a temporary order of injunction restraining the respondent and agents from trespassing, encroaching, ploughing, altering records from the register of parcel No. Irong/Kapkonga/117 and doing anything prejudicial to the rights of the applicants pending hearing of the suit. Moreover, the applicants pray for stay of proceedings in Iten SPMCC No. 10 of 2014 and that the suit be transferred to this court for determination.
The application is based on grounds that the plaintiffs have occupied the land since 1960. That the Land Registrar intends to remove a caution lodged by the 1st applicant. That the defendant intends to subdivide the land. The application is supported by the affidavit of Cosmas Cherono who deposes on his behalf and on behalf of the 2nd and 3rd applicants. The applicants state that they are in occupation of land registration number Irong/Kapkonga/117 since 1960. The respondent is the wife of their late brother who obtained title through transmission. Their late brother was registered as trustee for the entire family. It had been agreed that they share the land but the Land Registrar has issued a Notice to remove a caution lodged by the 1st applicant and the defendant intends to subdivide the land. This matter is pending before the Magistrate’s Court as Iten SPMCC No. 10 of 2014.
The respondent filed a replying affidavit stating that the suit land belongs to the respondent and that the applicants were invited guests having been allowed by the respondent’s husband to live in their mother’s house built by her late husband. According to the respondent, the 2nd applicant does not reside on the parcel of land. The respondent states that the 3rd applicant is not a brother to the 1st and 2nd plaintiffs but a son to Martin, a brother to the 1st, 2nd plaintiffs and her deceased husband. Her father in law was buried on another parcel of land. The meeting with the District Commissioner was one sided, influential and therefore, was biased as he wanted part of the land.
The indisputable facts of this matter are that the 1st plaintiff is in occupation of part of the suit property and that the 1st and 2nd applicants’ mother who was the 3rd applicant’s grandmother resided on the parcel of land. I have perused the proceedings before the District Commissioner and do find that the 1st plaintiff was born on the parcel of land and was brought up on the parcel of land. For the 2nd and 3rd applicants, it is not clear whether they reside on the parcel of land.
The plaintiffs have come to this court by way of adverse possession whilst in the Lower Court at Iten, the plaintiff (Veronicah Cherono) filed a suit praying for eviction of Cosmas Cherono as a trespasser. Cosmas Cherono filed a defence stating that he was occupying the property as a beneficiary of a trust as their late brother, the defendant’s husband held the land in trust for three families.
I do find that the plaintiffs have satisfied this court that they have a prima facie case with a probability of success which case must go on trial on a claim based on adverse possession and or trust. I do further find that the applicants, especially the 1st applicant if evicted, shall suffer irreparable harm that cannot be compensated with damages. On balance of convenience, I do find it prudent to order that status quo to be maintained pending the hearing and determination of the suit. Each party to maintain the utilization of the portion of land in occupation. The Deputy Registrar to visit the parcel of land and prepare a report on the status quo.
Dated and delivered at Eldoret this 2nd day of March, 2018.
A. OMBWAYO
JUDGE