Chelule Arap Lasoi & Waitage Arap Langa tv Jane Chelangat Salat [2016] KEHC 4658 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK (SUB-REGISTRY)

CIVIL SUIT  NO. 5 OF 2015

CHELULE ARAP LASOI……….……….…….1ST PLAINTIFF

WAITAGE ARAP LANGAT……….………….2ND PLAINTIFF

AND

JANE CHELANGAT SALAT………….…….….…DEFENDANT

R U L I N G

In September, 2015 the two plaintiffs herein filed a claim against the respondent, based on adverse possession, in respect of 5 acres out of a land parcel No. Narok/Cis-Mara/Ololulunga/1415 (the suit property) which is registered in the Defendant’s name.

On 3/12/15 the Applicants brought a Notice of Motion seeking, inter alia, an order to restrain the Respondent, her agents, servants or employees from trespassing on, surveying, alienating or offering the suit property for sale, pending the hearing and determination of the Originating Summons (OS) on grounds, inter alia, that the Applicants  have  been in possession of the suit property for a period exceeding 12 years; that the Defendant who is the registered proprietor of the land has threatened to evict the Applicants; that the Applicants have dispossessed the Respondent and developed the suit property and therefore stand to suffer substantial loss and damage if they are “deprived of the  right to own the  suit land”. The Notice of Motion is expressed to be brought under Order 40 rule 1, 2, 3 & 4 of the  Civil Procedure Rules, primarily.

In her response, the Respondent discounts the Applicants’ claims and asserts her absolute title to the suit property which is registered in her name. The Respondent traces her title to her membership of Marinwa Esoit Group ranch subdivided in 1994, resulting in her title to Narok/Cis-mara/ Ololulunga/1415.  She depones that her late husband Mochi Arap Salat, now deceased, had no title to the suit property and that any claim based on the purchase of land from him by the Applicants ought to be directed to his estate.

Denying that the Applicants have been in possession of the suit land as claimed, the Respondent avers that an attempt by the Applicants to enter the land in 2015 was effectively thwarted and the trespassers  arrested and charged. Thus the Applicants do not stand to suffer any damage and the present application has no merit.

The Applicants filed written submissions which dwell on their claim to adverse possession of the suit property.  The Application was argued on their part as if the main OS was the subject of the submissions.

For her part, the respondent reiterates  the contents of her Replying Affidavit while dismissing as a forgery the Applicants Memorandum of Understanding annexed to the Supporting Affidavit, and dated 2. 11. 94 (annexture markings not clear).

The parties’ advocates made oral submissions at the hearing which took cue from the parties’ respective filed material.

The court has considered all the material canvassed  with     regard to the application.  The applicable principles were crystalised in the case of Giella vs Cassman Brown & Company [1973]EA 358.

The Applicant seeking an interim injunction has to establish a prima facie case with a probability of success.  Even where a prima facie case is made, the court will not normally issue the relief of a temporary injunction unless  the applicant might suffer irreparable  damage.

When in doubt, the court will consider the application on a balance of convenience.  Ideally , the principles are applied sequentially  “so that the second condition can only be addressed if the first one is satisfied and when the court is in doubt, the third condition can be addressed” see Kenya Commercial Finance Company Ltd vs Afraha Education Society [2001] EA 86.

The Applicants herein have labored to assert that they are in possession of the suit property having dispossessed the  Respondent.  However, there was no firm demonstration of this claim before this court. Not even photographs of their alleged developments on the suit property were tendered.

Exclusive, uninterrupted, hostile possession against a title for the requisite period is a key ingredient of a claim to adverse possession.  The Respondent has denied the Applicant’s assertion in this  regard.  A prima facie case was defined in Mrao vs First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 by the Court of Appeal as:

“[one] which on the material  presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

Not only is there no material to support the claims to alleged prolonged possession by the applicants, there is also no evidence of threatened eviction by the Respondent.  Indeed annexture WAC3appears to relate to a suit in the lower court, namely Civil Suit No.46 of 2000.  The annexture makes no reference to the threat of eviction contained in paragraph 8 & 9 of the Supporting  Affidavit. Thus it cannot be said that the Applicants will suffer irreparable  damage if the prayers sought are denied.

On the first and second principles enunciated in the Giellacase, this court is not persuaded of the merits of the present application.  Being in doubt, the court has considered the balance of convenience.  The applicants have not demonstrated the occupation or possession asserted in their affidavit, while the same is strongly denied by the Respondent. It is evident, however, that there has been a lingering dispute over the suit property, involving some third parties, as well as the parties herein.

This court is not persuaded  that this is a proper case for the grant of an interim order of injunction as prayed by the Applicants. I decline to grant the temporary injunctive relief sought and will dismiss with costs the application filed on 3rd December, 2015.

In light of the subject matter herein, I direct that the matter be removed to the Environment and Land Court registry in Nakuru for disposal.

Delivered and signed this 27th May, 2016 at Narok.

In the presence of:-

Mr Kilele for the Applicant

Mr Leteipa for Respondent

C. MEOLI

JUDGE

Further Order

Mention before Deputy Registrar, Environment and Land Court Nakuru 18/7/16.

C. MEOLI

JUDGE