James Ombok Rapela (Suing on behalf of S O O (Minor) v Willingstone Otieno Akunga [2016] KEELC 598 (KLR)
The bottom line
#A Siaya court refused to evict a 20-year occupier of land despite the applicant holding a title deed, instead freezing all dealings and developments until trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a case for temporary and mandatory injunction at the interlocutory stage
The application was dismissed; the Applicant failed to make out a case for either a temporary or a mandatory injunction
The Applicant and two others were registered as proprietors and trustees for the minor only in September 2013, while the Respondent deponed to some 20 years of occupation predating even the deceased's 2009 registration. The Applicant also failed to explain how the deceased came to be registered after his death. Requiring the Respondent to vacate would be unfair and unjust at this stage. The court instead preserved the legal status of the land through an inhibition order and maintenance of the status quo on use, to be tested fully at the main hearing.
Who bears the costs of the application
Each party to meet their own costs
Having dismissed the application but found it necessary to preserve the status quo on the suit land on the court's own motion, the court made no adverse costs order against either party, instead directing that each party bears their own costs of the dismissed motion.
Legal principles established
#- An applicant for a temporary and mandatory injunction at the interlocutory stage must establish a clear case; where the respondent claims long occupation predating the applicant's registration and the applicant offers no explanation for irregularities in title, the equitable balance favours preservation of the status quo rather than a mandatory injunction
- The court may, on its own motion, issue an inhibition order under Section 68 of the Land Registration Act and maintain the status quo to preserve the legal status of suit land and peace between the parties pending trial
Court orders
#- 1.The notice of motion dated 28th November 2013 is dismissed with each party meeting their own costs
- 2.An inhibition order in terms of Section 68 of the Land Registration Act No. 3 of 2012 issued in respect of land parcel Siaya/Bar Olengo/879 pending determination of the suit
- 3.Status quo on the use of the suit land obtaining at the time the suit was filed to continue, with no new structural developments by the parties pending determination
- 4.The parties to comply with Order 11 of the Civil Procedure Rules within the next 30 days
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; injunctive relief in respect of land parcel Siaya/Bar Olengo/879; inhibition order under Section 68 of the Land Registration Act No. 3 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Ombok Rapela (Suing on behalf of S O O (Minor) v Willingstone Otieno Akunga [2016] KEELC 598 (KLR)", Case Analysis (2016). Notice of motion dated 28th November 2013 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/598/eng@2016-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.