Loice Alice Onyango Okombo & another v Erick Otieno Ogutu & 2 others [2017] KEELC 2857 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to stop a registered owner from taking land, warning buyers: secure proper title before paying for property.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs established a prima facie case with a probability of success
They did not; they are not the registered proprietors of the suit land and on the affidavit evidence could not succeed at trial
The court found that the vendor, Erick Otieno Ogutu, entered sale agreements with both the plaintiffs and the 3rd Defendant over land registered in the name of a deceased person. Transfers effected before the grant in Kisumu High Court Succession Cause No.313 of 2013 was issued were irregular. By the time of the suit the 3rd Defendant was already registered proprietor, and the plaintiffs, lacking title, failed to show a prima facie case or irreparable loss.
Whether damages would be an adequate remedy / irreparable harm shown
The plaintiffs did not show irreparable loss if the injunction was not granted
The court noted the plaintiffs offered no evidence of loss of an irreparable nature that they would suffer were the temporary restraining order not issued at the interlocutory stage. This is one limb of the established temporary injunction test, and failure on it independently weighed against granting the injunction.
Where the balance of convenience lies
It does not tilt in favour of the plaintiffs, who are without title, unlike the 3rd Defendant who is registered proprietor
Both the plaintiffs and the 3rd Defendant contracted with vendors whose names were not on the title, the land having been registered in the name of a deceased person. The purchasers therefore bought with notice of that defect. As between a party without title and the registered proprietor, the balance of convenience favours the latter, and no temporary injunction should issue.
Legal principles established
#- A registered proprietor is to be taken as absolute and indefeasible owner until the title is successfully impugned under Section 26 of the Land Registration Act
- A title that may have been derived by transfer before a grant in a succession cause was issued is irregular, unlawful and unprocedural, and not protected under Section 26 of the Land Registration Act or Article 40 of the Constitution
Court orders
#- 1.The plaintiffs' notice of motion dated 31st October 2016 is dismissed
- 2.Costs of the application to the 3rd Defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to land parcel Kisumu/Kapuonja/2460
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loice Alice Onyango Okombo & another v Erick Otieno Ogutu & 2 others [2017] KEELC 2857 (KLR)", Case Analysis (2017). Not stated in judgment (suit over land parcel Kisumu/Kapuonja/2460). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2857/eng@2017-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.