Mark Sikalabo Opicho v Wilfred Wafula Opicho & 2 others [2019] KEELC 1778 (KLR)
The bottom line
#The Environment and Land Court in Kitale dismissed landowners' bid to cancel a neighbour's title because they never included the registered owner in their case.
What this practically means
#Executive summary
#Key legal issues
#Non-joinder of the registered owner of the suit property
The application failed because the current registered owner, Godfrey Manyenyi Simatwa, was not a party to the suit or the application
The court noted the transfer had been effected and the title was registered in the name of Godfrey Manyenyi Simatwa on 19/3/2018, yet he was not a party. Orders affecting the title of a non-party could not be granted; the applicants ought to have enjoined him before or at the time of making the application.
Absence of evidential link between the parcel and Plot No. 57
There was no evidence, such as a green card, showing that the suit parcel emanated from the subdivision of Plot No. 57
Although the applicants asserted that LR No. KOLONGOLO/KOLONGOLO BLOCK 4 'C'/343 emanated from Plot No. 57 of the Kolongolo Farmers Co-operative Society, the court observed there was no green card or other evidence to establish that derivation, undermining the basis for the orders sought.
Mandatory injunction at interlocutory stage
Prayers 2 to 5 sought a mandatory injunction which can only be granted in very special circumstances
The court held that the relief sought - cancellation of title, restitution and inhibition - amounted to a mandatory injunction granting substantive relief at an interlocutory stage, which the court will only grant in very special circumstances; these were not shown.
Legal principles established
#- A party seeking rectification of the register against a registered owner must enjoin that owner in the suit before or contemporaneously with the application.
- A mandatory injunction can only be granted in very special circumstances.
- Interim orders cannot issue in respect of a parcel that no longer exists; they must be directed to its specific subdivisions.
Court orders
#- 1.The application dated 25/6/2019 (referred to in the order as the application dated 12/6/2019) is dismissed with costs
- Jurisdiction invoked
- Section 13(7) & 19 of the Environment and Land Court Act 2011; Sections 68 & 80 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mark Sikalabo Opicho v Wilfred Wafula Opicho & 2 others [2019] KEELC 1778 (KLR)", Case Analysis (2019). Notice of Motion dated 25/6/2019 in ELCA (Kitale ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1778/eng@2019-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.