[2016] KEELC 849 (KLR)
The court found that the applicant, being the son of the respondent, occupied the suit land with her permission and thus could not claim adverse possession. The applicant had already been allocated 70 acres by the respondent in a prior consent order, and his continued occupation of the disputed 3.5 acres was not...
Source-derived case information.
- Citation
- [2016] KEELC 849 (KLR)
- Parties
- Plaintiff: David Kipkoech Kogo; Defendant: Esther Chesaina; Defendant: Redford Pim
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 34 of 2016
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Application for Injunction and Inhibition
- Outcome
- application dismissed with costs to the respondent
- Judges
- EO Obaga
- Legal Topics
- Adverse Possession, Injunctions, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kipkoech Kogo
Plaintiff
Esther Chesaina
Defendant
Redford Pim
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Application for Injunction and Inhibition
Legal Issues
- 1 Whether the applicant has established a prima facie case for grant of an injunction restraining the respondent from interfering with the suit land.
- 2 Whether the applicant is entitled to an order of inhibition against LR No 7541.
- 3 Whether the applicant can claim adverse possession over land occupied with the owner's permission.
Ratio Decidendi
The court found that the applicant, being the son of the respondent, occupied the suit land with her permission and thus could not claim adverse possession. The applicant had already been allocated 70 acres by the respondent in a prior consent order, and his continued occupation of the disputed 3.5 acres was not adverse. The applicant failed to demonstrate a prima facie case or that he would suffer irreparable loss not compensable by damages. Consequently, the application for injunction and inhibition lacked merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The applicant's application for injunction and inhibition is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 34 OF 2016
DAVID KIPKOECH KOGO......................................PLAINTIFF
VERSUS
ESTHER CHESAINA …............................1ST DEFENDANT
REDFORD PIM ….....................................2ND DEFENDANT
R U L I N G
The Applicant is a son of the Respondent. The Applicant had filed a suit in which he seeks orders that he has acquired a portion of 3. 5 acres out ofLR No 7541which is registered in the name of the Respondent. The Applicant contemporaneously filed a Notice of Motion seeking to restrain the Respondent from interfering in any way with a portion of 3. 5 acres comprised in LR No 7541. He also seeks for an order of inhibition forbidding any dealings on LR No 7541.
The Applicant contends that he has been on the3. 5 acres (suitland) for a period of over 12 years and as such, he has acquired that portion by adverse possession. He contends that that is where his family is residing and that he should be given the orders pending the hearing of the Originating Summons. He contends that he has lived on the suitland since 1984. That the Respondent has filed a suit seeking to evict him from the portion he is occupying.
The application is opposed by the Respondent based on a replying affidavit sworn on 11/3/2016. The Respondent contends that the application which seeks to restrain her from dealing with her land is malicious, misconceived and without merit. That she designated 70 acresout of LR No. 6133 and 6150/1 to the Applicant but that the Applicant has refused to move out of 3. 5 acrescomprised inLR No 7541.
The Respondent further contends that she had filed Kitale Environment and Land Case No 25 of 2014 in which she wanted orders evicting the Applicant from portions of LR No. 6133and6150/1. This case was compromised when the Applicant was given 70 acres. The Respondent contends that the Applicant has been staying on the suitland with her permission and therefore the Applicant cannot seek to have the 3. 5 ares by way of adverse possession.
I have carefully considered the Applicant's application as well as the opposition to the same by the Respondent. In an application for injunction, an Applicant has to demonstrate that he has a prima facie case with probability of success. An injunction will not normally be granted unless otherwise the Applicant will suffer loss which will not be compensated in damages. If the court is in doubt, it will decide the application on a balance of convinience. See Giella -vs- Cassman Brown Co. Ltd [1973] EA 358.
In the instant case, it is not contested that the Applicant is son to the Respondent. The law relating to adverse possession is that one cannot claim adverse possession if he has been on the land with the permission of the owner. The Applicant herein has been on the land with the permission of the Respondent. The permission stems from the fact that the Applicant is the son of the Respondent. The Applicant's argument that he is an adult who is independent from his parent has no legal basis. The issue of age does not matter. I know of no authority which says that a son can seek to have a parent's land by way of adverse possession. The only lawful and possible means by which a son can have land from a parent is through gift or through succession upon the demise of a parent.
The Applicant has been given 70 acres by the Respondent. The consent which compromised in Kitale Environment and Land Case No 25 of 2014 was clear. The Respondent was to settle on a designated area. Instead of settling where he was given, he is still filing more cases. I find that the Applicant has not demonstrated that he has prima facie case with probability of success.
The Applicant has not demonstrated that he will suffer any loss which may not be compensated in damages. There is no evidence that the Applicant intends to sell the land where the suitland is comprised. I do not have to consider the balance of convinience. I find that the Applicant's application lacks merit. The same is hereby dismissed with costs to the Respondent.
It is so ordered.
Dated , signed and delivered at Kitale on this 12th day of May, 2016.
E. OBAGA
JUDGE
In the presence of Plaintiff/Applicant.
Court Assistant – Isabellah
E. OBAGA
JUDGE
12/5/16