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ELCPartially AllowedNotice of motion dated 6th March 2015· [2017] KEELC 2917 (KLR)

Nyajowi Angujo v Fredrick Mawega Angujo [2017] KEELC 2917 (KLR)

Environment and Land Court
10 May 2017
SKS. M. Kibunja
642 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Nyajowi Angujo, moved the Environment and Land Court by notice of motion dated 6th March 2015 seeking a temporary injunction against the Defendant, Fredrick Mawega Angujo, restraining him from trespassing on, selling, subdividing, charging or in any way dealing with or interfering with land parcels Kisumu/Kasule/6700 and 6366 pending hearing of the suit. The application was supported by the Plaintiff's affidavit and opposed by the Defendant's replying affidavit; the court directed written submissions, which both sides filed. The court framed three issues: whether a prima facie case with a probability of success was established, what order to issue, and costs. It held that the two parcels are registered in the Plaintiff's name and, under Sections 24, 25 and 26 of the Land Registration Act No. 3 of 2012, he is the absolute and indefeasible owner entitled to a registered proprietor's rights. However, the Defendant is the Plaintiff's son, and his uncontroverted evidence showed his mother resides on one parcel and his late elder brother's family on the other. The court therefore found the Defendant may have genuine reasons to be on the land for family and social interactions and could not be entirely locked out, directing that any criminal misuse of the land should be pursued through police and other criminal justice agencies. The motion was allowed in limited terms: the Defendant, himself or through agents, was restrained from selling, subdividing, charging or otherwise disposing of the Plaintiff's interests in the two parcels pending determination of the suit, with costs in the cause.

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

The Plaintiff, as registered proprietor of the two parcels, established a prima facie case justifying an interlocutory injunction limited to restraint on alienation, but not a blanket restraint excluding the Defendant from the land

Reasoning

The parcels are registered in the Plaintiff's name and, under Sections 24, 25 and 26 of the Land Registration Act, he is the absolute and indefeasible proprietor entitled to the rights of a registered owner. However, the Defendant's uncontroverted evidence that his mother and late brother's family reside on the parcels meant he had genuine reasons to access the land. The injunction was therefore granted only against sale, subdivision, charging or other disposition of the Plaintiff's interests, with criminal justice agencies available if the Defendant's use of the land amounts to offences.

p. 2

Legal principles established

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  • A registered proprietor is the absolute and indefeasible owner of land under Section 26 of the Land Registration Act unless the title is successfully impugned in accordance with the law
  • A registered proprietor is entitled to the rights and privileges of a registered proprietor of land under Sections 24 and 25 of the Land Registration Act

Court orders

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  1. 1.Notice of motion dated 6th March 2015 allowed in terms of prayer 3, limited to restraining the Defendant, through himself or his agents, from selling, subdividing, charging or in any other way disposing of the Plaintiff's interests in land parcels Kisumu/Kasule/6700 and 6366 pending the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Land Registration ActSection 26
  • Land Registration ActSection 24
  • Land Registration ActSection 25
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcels Kisumu/Kasule/6700 and 6366

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, "Nyajowi Angujo v Fredrick Mawega Angujo [2017] KEELC 2917 (KLR)", Case Analysis (2017). Notice of motion dated 6th March 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2917/eng@2017-05-10

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