[2008] KEHC 2304 (KLR)
The court found that the applicant entered the land with the respondent's consent as an employee, which precludes a claim of adverse possession. The applicant failed to demonstrate a prima facie case with a probability of success or that he would suffer irreparable harm that could not be compensated by damages. The...
Source-derived case information.
- Citation
- [2008] KEHC 2304 (KLR)
- Parties
- Plaintiff: Joseph Tomu Otanga; Defendant: Felicity Wanjira King'ori
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 43 of 2008
- Procedural Posture
- Civil Case / Interlocutory Application for Restraining Orders
- Outcome
- Application dismissed.
- Legal Topics
- Adverse Possession, Registered Land Rights, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Tomu Otanga
Plaintiff
Felicity Wanjira King'ori
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Restraining Orders
Legal Issues
- 1 Whether the applicant is entitled to restraining orders against the respondent based on a claim of adverse possession.
- 2 Whether entry into land by consent of the owner can constitute adverse possession.
- 3 Whether the applicant has demonstrated irreparable harm justifying an injunction.
Ratio Decidendi
The court found that the applicant entered the land with the respondent's consent as an employee, which precludes a claim of adverse possession. The applicant failed to demonstrate a prima facie case with a probability of success or that he would suffer irreparable harm that could not be compensated by damages. The rights of the registered proprietor under the Registered Land Act are paramount, and there was no justification to restrain her from using her land. Consequently, the application for restraining orders was dismissed.
Court Disposition
Application dismissed.
Orders
- Application for restraining orders is dismissed.
- Order stayed for four weeks to allow the applicant to vacate the land.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 43 of 2008
JOSEPH TOMU OTANGA…………………………………...PLAINTIFF
VERSUS
FELICITY WANJIRA KING’ORI…………...……………..DEFENDANT
RULING
This is an interlocutory matter to grant restraining orders. Applicant claims in adverse possession some portion of the land registered in the name of the Respondent. It is shown that the Applicant entered into the Respondents property by consent of the Respondent and has been residing on the land as an employee for some time (he says 19 years.)
Upon my perusal of the material now before the court, I cannot say that the Applicant has demonstrated chances of the success on his case a person who has entered land with the consent of owner is not in a diverse possession. Also no irreparable damage has shown that cannot be compensated his damages. I find no good reason to restrain a proprietor of land from using her land as she wishes. She has guaranteed rights under registered land Act Cap 300.
I therefore dismiss this application. However the order shall be stayed for a period of 4 weeks to enable the Applicant to find his way out. Costs to the Respondent.
Dated this 16th May, 2008.
J. N. KHAMINWA
JUDGE