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ELCPartially Allowed· [2018] KEELC 4548 (KLR)

Albert Ayieko Agwanda & another v Lilian Awuor Ogalo & 6 others [2018] KEELC 4548 (KLR)

Environment and Land Court
14 February 2018
SKS. M. Kibunja
931 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 Plaintiffs, Albert Ayieko Agwanda and Erastus Seda Akeyo, moved the Environment and Land Court by notice of motion dated 3rd July 2013 seeking a temporary injunction restraining the Defendants from entering, erecting structures on or dealing with land parcel Kisumu/Nyahera/1601 and its subdivisions Kisumu/Nyahera/2529, 2528 and 2527 pending the hearing of the suit. The application was opposed by the 1st and 2nd Defendants by grounds of opposition and a replying affidavit, and by the 3rd and 4th Defendants through a replying affidavit. The court framed two issues: whether a prima facie case had been made out for a temporary injunction, and who should bear costs. On the evidence, the court found that Kisumu/Nyahera/2529 was a subdivision of the parent parcel Kisumu/Nyahera/1601, registered in the names of the 3rd and 4th Defendants in May 2013. The parent title had been registered to Maurice Ogalo Lare in May 2012; he died on 23rd June 2012, yet the 1st Defendant was registered in February 2013 and obtained Land Control Board consent to subdivide. Section 26 of the Land Registration Act confers indefeasible title, but the court noted that no confirmed grant was availed to show the 1st Defendant complied with the Law of Succession Act before registering and alienating the land, and the Plaintiffs claim a portion. Declining to make final findings, the court ordered maintenance of the status quo over Kisumu/Nyahera/2529 pending trial, allowing the motion in terms of prayer 3 with costs in the cause.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case warranting a temporary injunction

Holding

The court declined to find a prima facie case with finality but, given doubts over succession compliance in the chain of title, preserved the status quo on Kisumu/Nyahera/2529 pending full hearing

Reasoning

The court found the 1st Defendant was registered on 26th February 2013 after the registered owner Maurice Ogalo Lare died on 23rd June 2012, and she then obtained Land Control Board consent to subdivide and transferred portions to the 3rd and 4th Defendants. As no confirmed grant under the Law of Succession Act was availed, and the Plaintiffs claim a portion, fairness dictated preservation of the status quo pending trial rather than final pronouncement on title.

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 unless the registration is successfully challenged in accordance with the law
  • An interlocutory court should not pronounce itself with finality on issues of fact and law before the full hearing of the suit

Court orders

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  1. 1.Notice of motion dated 3rd July 2013 allowed in terms of prayer 3, maintaining the status quo in respect of land parcel Kisumu/Nyahera/2529 pending hearing and determination of the suit
  2. 2.Costs in the cause

Authorities

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Legislation

  • Land Registration ActSection 26
  • Law of Succession ActCap 160
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel Kisumu/Nyahera/1601 and its subdivisions

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, "Albert Ayieko Agwanda & another v Lilian Awuor Ogalo & 6 others [2018] KEELC 4548 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4548/eng@2018-02-14

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