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ELCDismissedNot stated in judgment (suit over land parcel Kisumu/Kapuonja/2460)· [2017] KEELC 2857 (KLR)

Loice Alice Onyango Okombo & another v Erick Otieno Ogutu & 2 others [2017] KEELC 2857 (KLR)

Environment and Land Court
17 May 2017
926 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 refused to stop a registered owner from taking land, warning buyers: secure proper title before paying for property.

What this practically means

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Executive summary

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The plaintiffs, Loice Alice Anyango Okembo and Trevy James Oyombra, moved the court by notice of motion dated 31st October 2016 seeking a temporary injunction against the 3rd Defendant, George Adada Nyagawa, restraining him from evicting them or interfering with land parcel Kisumu/Kapuonja/2460 pending the hearing of the suit. The 3rd Defendant opposed through a replying affidavit sworn on 9th March 2017. The court framed three issues: whether a prima facie case with a probability of success was established, what orders to issue, and who should bear costs. On the evidence, the 1st Defendant sold the suit land to the plaintiffs by agreement dated 4th September 2014 for Ksh.2,500,000, but had earlier sold the same land to the 3rd Defendant by agreement dated 17th March 2014 for Ksh.3,000,000. At the time of both agreements the registered proprietor was a deceased person, and any transfer before the grant in Kisumu High Court Succession Cause No.313 of 2013 was issued was held to be irregular, unlawful and unprocedural and unprotected under Section 26 of the Land Registration Act and Article 40 of the Constitution. By the date of suit the 3rd Defendant was already the registered proprietor, having obtained a transfer from the 2nd Defendant, the administratrix of the estate. The court held that the plaintiffs, not being registered proprietors, failed to establish a prima facie case with a probability of success, did not demonstrate irreparable loss, and the balance of convenience favoured the registered 3rd Defendant. The application was dismissed with costs to the 3rd Defendant. S.M. Kibunja, Environment and Land Judge, delivered the ruling on 17th May 2017.

Key legal issues

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01

Whether the plaintiffs established a prima facie case with a probability of success

Holding

They did not; they are not the registered proprietors of the suit land and on the affidavit evidence could not succeed at trial

Reasoning

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.

p. 2
02

Whether damages would be an adequate remedy / irreparable harm shown

Holding

The plaintiffs did not show irreparable loss if the injunction was not granted

Reasoning

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.

p. 2
03

Where the balance of convenience lies

Holding

It does not tilt in favour of the plaintiffs, who are without title, unlike the 3rd Defendant who is registered proprietor

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The plaintiffs' notice of motion dated 31st October 2016 is dismissed
  2. 2.Costs of the application to the 3rd Defendant

Authorities

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Legislation

  • Land Registration ActSection 26
  • Constitution of Kenya, 2010Article 40
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

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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, "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.