JOHN GITONGA KIHARA & 4 others v KASIGAU RANCHING (D.A.) LIMITED [1995] KECA 85 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that when a licence to use someone's land expires, staying on makes you a trespasser who can be barred by a court injunction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in granting an interlocutory injunction restraining the appellants from entering the respondent's land
- 2.Whether there was any arguable defence or relevant issue to be tried
- 3.Whether the Court of Appeal could interfere with the trial judge's exercise of discretion
Key legal issues
#Interference with discretionary interlocutory injunctions on appeal
The Court of Appeal will not disturb the exercise of discretion by a trial judge unless it is satisfied the decision is clearly wrong.
The Court adopted the classic formulation in Mbogo v Shah by Sir Clement de Lestang VP. Applying those principles, it found no misdirection, no reliance on irrelevant matters, and no failure to consider relevant material, and held the judge was plainly right in granting the injunction.
Existence of an arguable defence on interlocutory injunction
There was no defence sufficient to show a relevant issue to be tried; the licence had expired and was not renewed, so the defendants were trespassers.
The Court reviewed the evidence and submissions and found no defence to reckon with. The appellants' licence had expired with no evidence of renewal, and upon the plaintiff withholding consent the defendants were clearly trespassers, justifying the injunction until trial.
Effect of revocation or expiry of a bare licence
Under a bare licence no interest in property passes; a licensee exercising the licence after revocation or expiry becomes a trespasser at common law.
The Court adopted the passage from Salmond on Torts (17th Edn), relying on Wood v Leadbitter and Thompson v Park, holding that a bare licence is revocable at the will of the licensor and affords no justification for continued occupation after revocation or expiry.
Legal principles established
#- An appellate court will not interfere with a trial judge's exercise of discretion unless satisfied the decision is clearly wrong, that the judge misdirected himself, acted on wrong matters, or failed to consider relevant matters and arrived at a wrong conclusion.
- A bare licence passes no interest in property and is revocable at common law; a licensee who remains on land after revocation becomes a trespasser.
- Upon a landowner withholding consent after expiry of a licence, the former licensee is a trespasser and a prima facie case for an injunction to restrain trespass is made out.
Court orders
#- 1.The appeal was dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 5936 of 1993
- Jurisdiction invoked
- First appellate jurisdiction over an interlocutory ruling of the High Court
Relief refused
#Setting aside of the interlocutory injunction granted by Dugdale J
The Court was not persuaded the judge misdirected himself or failed to consider relevant matters; no defence was shown
Costs
The appeal was dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly and, for the reasons above stated, the appeal fails and is dismissed with costs.
We are satisfied that this is not one of those cases where we would interfere with the exercise of discretion by the judge. We are satisfied that having regard to the circumstances of the case he was plainly right.
In our judgment no defence was put forward sufficient to show that there was any relevant issue to be tried. Prima facie the plaintiff is entitled to an injunction to restrain trespass on its land.
The defendants had been granted a licence which had expired and there was no evidence of any renewal of such licence. Upon the plaintiff withholding his consent the defendants were clearly trespassers.
Issues in the judgment
#Textual corruption in the quoted passage from Salmond on Torts: the text reads 'the licensee is simply not a transpasser' where context (and the standard passage) would indicate 'the licensee is simply not a trespasser', and the preceding line appears truncated.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mocha Hotel Limited v Kwanza Estates Limited (Environment & Land Case E014 of 2022) [2025] KEELC 4303 (KLR)[2025] KEELC 4303 (KLR)4 Jun 2025applied
Cite this brief
#Cite this brief
Caselaw, "JOHN GITONGA KIHARA & 4 others v KASIGAU RANCHING (D.A.) LIMITED [1995] KECA 85 (KLR)", Case Analysis (1995). Civil Appeal 134 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/85/eng@1995-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.