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ELCAllowedCase No 331 of 2015· [2016] KEELC 682 (KLR)

Meshack Odhiambo Mbasa & 2 others v Patrick Mbasa [2016] KEELC 682 (KLR)

Environment and Land Court
28 July 2016
SKS. M. Kibunja
558 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court stopped construction on registered family land, confirming registered owners' rights prevail unless challenged under the Land Registration Act.

What this practically means

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Executive summary

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The Applicants, Meshack Odhiambo Mbasa, Percy Owino Ochieng and Charles Rosa Mbasa, moved the Environment and Land Court by notice of motion dated 30th November 2015 seeking a temporary injunction over land parcel East Gem/Ramula/874 pending the hearing and determination of the suit, supported by the affidavit of the 1st Applicant and a further affidavit. The Respondent, Patrick Mbasa, opposed through a replying affidavit sworn on 19th January 2016. Interim orders in terms of prayer 2 had issued on 2nd December 2015, and the parties filed written submissions. The court framed two issues: whether the Applicants had established a prima facie case for a temporary injunction at the interlocutory stage, and which party should bear the costs. The court found the 1st Applicant and the Respondent are sons of the 3rd Applicant and the 2nd Applicant their nephew; the suit land was registered in the names of the 1st and 2nd Applicants on 25th June 2015, making them absolute proprietors unless their title is successfully challenged under Section 26 of the Land Registration Act No. 3 of 2012. The Respondent conceded he was constructing on the land, basing his claim on an alleged customary right to occupy as the last born of his mother, which the Applicants disputed; the Applicants deponed that they were gifted the land by the 3rd Applicant. Holding it fair and just to maintain the status quo pending trial, the court allowed the application in terms of prayer 3 with costs to the Applicants.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

The Applicants, as registered and absolute proprietors of East Gem/Ramula/874, established a prima facie case; the Respondent's claim rested on an alleged customary right as last born of his mother, which is disputed. Interlocutory injunction in terms of prayer 3 granted with costs.

Reasoning

The court found the 1st and 2nd Applicants were registered on 25th June 2015 and remain absolute proprietors unless their title is successfully challenged under Section 26 of the Land Registration Act. The Respondent conceded he was constructing on the land but his claimed customary right was disputed. Fairness required maintenance of the status quo pending trial, warranting the injunction with costs to the Applicants.

p. 2

Legal principles established

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  • A registered proprietor's title can only be challenged in the manner provided under Section 26 of the Land Registration Act

Court orders

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  1. 1.Temporary injunction in terms of prayer 3 of the notice of motion dated 30th November 2015 over land parcel East Gem/Ramula/874 pending the hearing and determination of the suit
  2. 2.Costs of the application to the Applicants

Authorities

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Legislation

  • Land Registration ActSection 26
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2)(b) of the Constitution (not expressly cited in the judgment; no jurisdictional provision is stated)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Meshack Odhiambo Mbasa & 2 others v Patrick Mbasa [2016] KEELC 682 (KLR)", Case Analysis (2016). Case No 331 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/682/eng@2016-07-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.