David Kipkoech Kogo v Esther Chesaina & Redford Pim [2016] KEELC 849 (KLR)

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