Tesina Inziani Khachenda v Pauline Khayali Ingosi [2018] KEELC 4132 (KLR)
The bottom line
#A Kakamega court protected a family that had farmed land since 1963, blocking the registered owner from selling or using it until the dispute is fully heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with a probability of success
Yes. The applicant's possession since 1963 was undisputed and the respondent did not explain how the land was transferred to her while the registered owners were deceased
The court found that the applicant's long, undisputed possession since 1963, the 1981 sale agreement annexed as TIK-2, and the respondent's failure to explain the transfer into her name gave rise to a genuine and arguable case, including on adverse possession. The register (TIK-1) suggested the 2000 transfer was irregular, engaging the fraud exceptions to indefeasibility under Section 26 of the Land Registration Act.
Whether the applicant would suffer irreparable injury not compensable by damages
Yes. The applicant risked losing the land to an innocent purchaser for value, from whom she could not recover it
The court accepted that the applicant, whose interest was no longer reflected on the register, could not recover the land if disposed of to an innocent purchaser who relies on the respondent's title. Damages would therefore be an inadequate remedy, satisfying the second Giella condition and warranting the injunction and restriction orders.
Where the balance of convenience lies
It tilts in favour of the applicant, who is in occupation and against whom no prejudice would arise
The court noted it was undisputed that the applicant was in occupation of the suit land, and that the respondent had never enjoyed possession. Granting the orders would thus maintain the status quo without causing the respondent harm, whereas refusing them would expose the applicant to imminent disposition of the land.
Legal principles established
#- The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience
- A prima facie case is one where, on the material presented, a court concludes a right has apparently been infringed so as to call for an explanation or rebuttal
- A registered title may be challenged on the ground of fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme
Court orders
#- 1.Pending the hearing and determination of the suit, an injunction restraining the respondent, her agents, servants and/or employees or any other person claiming through her from cultivating, making use of, wasting, occupying and/or trespassing onto Land Parcel No. Kakamega/Shitoli/1308
- 2.Pending the hearing and determination of the suit, an order of restriction and/or prohibition prohibiting any registration or dealing with title No. Kakamega/Shitoli/1308
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Order 40 rules 1, 2, 3 and 4 of the Civil Procedure Rules; Section 68 of the Land Registration Act 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tesina Inziani Khachenda v Pauline Khayali Ingosi [2018] KEELC 4132 (KLR)", Case Analysis (2018). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4132/eng@2018-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.