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ELCAllowedNot stated in the judgment (notice of motion dated 6th July 2016 in the main suit)· [2017] KEELC 1203 (KLR)

Roselyn E Okumu v Dorine Aluoch Adhiambo [2017] KEELC 1203 (KLR)

Environment and Land Court
18 October 2017
SKS.M. Kibunja
587 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 confirmed that a registered landowner holds an unchallengeable title until someone successfully challenges it in court, so she got an injunction protecting her land.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court (S.M. Kibunja, Judge) delivered on 18th October 2017 on the Plaintiff's notice of motion dated 6th July 2016. The Plaintiff sought a temporary injunction restraining the Defendant from trespassing upon, building upon, interring the remains of anyone on, or otherwise interfering with land parcel Kisumu/Nyalunya/3655 pending the hearing and determination of the suit. The application was supported by the Plaintiff's affidavits and opposed by the Defendant's replying affidavit sworn on 22nd August 2016, with written submissions filed by both counsel. The court framed two issues: whether the Plaintiff had established a prima facie case with a probability of success justifying a temporary injunction, and who should bear the costs. On the evidence, the court found that the suit land was registered in the Plaintiff's name since 2nd September 2013 following a transfer by Robson Odhiambo Ndeng, and that she had purchased it through a sale agreement dated 27th May 2011 with acknowledged payments. Although the Defendant deponed that she was unaware of the transactions with her late father-in-law, the court held that the Plaintiff's title had never been challenged in accordance with Article 40 of the Constitution and Section 26 of the Land Registration Act, which obliges the court to take her as the absolute and indefeasible owner until her title is successfully challenged. The court therefore allowed the notice of motion with costs, confirming the interim injunction issued on 6th July 2016 pending the hearing and determination of the suit.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success for a temporary injunction

Holding

Yes - the Plaintiff is the registered proprietor of the suit land since 2nd September 2013, her title has never been challenged, and she is entitled to an injunction in terms of the interim order

Reasoning

The green card annexed to the Plaintiff's documents confirms registration of Kisumu/Nyalunya/3655 in her name following a transfer by Robson Odhiambo Ndeng, and she obtained the land through a sale agreement dated 27th May 2011 with acknowledged payments. Although the Defendant deponed she was unaware of the transactions, the Plaintiff's title had never been challenged under Article 40 of the Constitution and Section 26 of the Land Registration Act, making her the indefeasible owner until such challenge succeeds.

p. 2

Legal principles established

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  • Under Section 26 of the Land Registration Act, a registered proprietor is taken as absolute and indefeasible owner until the title is successfully challenged

Court orders

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  1. 1.Temporary injunction issued in terms of the interim order issued on 6th July 2016 pending the hearing and determination of the suit
  2. 2.Interim order of 6th July 2016 confirmed
  3. 3.Plaintiff awarded costs of the notice of motion

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land Registration ActSection 26
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; Article 40 of the Constitution and Section 26 of the Land Registration Act No. 3 of 2012 invoked

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, "Roselyn E Okumu v Dorine Aluoch Adhiambo [2017] KEELC 1203 (KLR)", Case Analysis (2017). Not stated in the judgment (notice of motion dated 6th July 2016 in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1203/eng@2017-10-18

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