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ELCDismissedNot stated in the judgment (Notice of Motion dated 8th October, 2020)· [2021] KEELC 1506 (KLR)

Lewnantai Kusenge Lei v Joshua Lemako & 5 others [2021] KEELC 1506 (KLR)

Environment and Land Court
12 October 2021
2,237 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner challenging a boundary ruling must appeal or seek judicial review — filing a fresh injunction suit will fail.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Kajiado/Kaputiei South/55 (311.05 hectares), moved the Court by Notice of Motion dated 8th October, 2020 seeking a temporary injunction restraining the Defendants from interfering with the suit land, and a mandatory injunction restraining implementation of a boundary Ruling delivered by the 5th Defendant (Land Registrar) on 13th November, 2019. The 1st to 4th Defendants, sons of the late owner of the adjoining parcel Kajiado/Kaputiei South/56, opposed, contending the Plaintiff declined to participate in the boundary proceedings, that boundary determination is the preserve of the Land Registrar, and that the application offended section 16 of the Government Proceedings Act. The court framed two issues: entitlement to a temporary injunction and to a mandatory injunction. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court found ownership and contiguity undisputed but the real dispute centred on a boundary the Land Registrar was alone legally mandated to determine under section 18 of the Land Registration Act. The Plaintiff, who participated through representatives, had been directed to appeal to the ELC within 30 days but instead filed a fresh suit, and his claim of non-service was contradicted by his own grounds. No prima facie case was established, so the remaining Giella limbs were not considered. Relying on Kenya Breweries v Washington Okeyo, the court found no special circumstances to justify a mandatory injunction at the interlocutory stage. The application was dismissed with costs in the cause, delivered virtually at Machakos on 12th October, 2021.

Key legal issues

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01

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

Holding

No; ownership and contiguity were undisputed, but the dispute was over a boundary determined by the Land Registrar, and the Plaintiff's proper remedy was appeal or judicial review, not a fresh suit

Reasoning

Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the court held the Land Registrar alone is mandated under section 18 of the Land Registration Act to determine boundaries. The Plaintiff participated through representatives, was directed to the ELC on appeal within 30 days, but instead filed a fresh suit. His claim was also contradicted by his own admission of receiving summons.

p. 3
02

Whether a mandatory injunction should issue to restrain implementation of the Land Registrar's Ruling

Holding

No; no special circumstances existed, and the Plaintiff declined to follow the statutory appeal process

Reasoning

Relying on Kenya Breweries Ltd v Washington Okeyo, a mandatory injunction at interlocutory stage requires special circumstances, a clear case, or a simple remediable act. The 5th Defendant exercised its statutory mandate, the Plaintiff was represented, and an appeal avenue to the ELC was available. The case did not meet the threshold.

p. 3

Legal principles established

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  • Under section 18 of the Land Registration Act, the Land Registrar is the only officer legally mandated to determine boundary disputes over registered land whose boundaries have not been fixed
  • Where a party fails to establish the first limb (prima facie case) of the Giella test for injunctions, the court need not consider the remaining limbs
  • A mandatory injunction may be granted at interlocutory stage only in the absence of special circumstances will it not normally be granted

Court orders

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  1. 1.The Notice of Motion application dated 8th October, 2020 is dismissed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Land Registration Actsection 18
  • Government Proceedings Act Cap. 40section 16
  • Survey ActCap. 299

Cases cited (7)

  • In re estate of Mary Wanja Wairimu (Deceased)
    (2017) eKLR
  • Giella Vs Cassman Brown & Company
    (1973) EA 358
  • Mrao Ltd Vs First American Bank of Kenya & 2 Others
    (2003) KLR 125
  • Azzuri Limited Vs Pink Properties Limited
    (2017) eKLR
  • Machakos Nursing Home Vs Officer in Charge of Machakos GK Prison & Attorney General
    (2008) eKLR
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
  • Kenya Breweries Limited vs. Washington Okeyo
    (2002) EA 109
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Land Registration Act, section 18 as read with the court's mandate); no specific constitutional article cited

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, "Lewnantai Kusenge Lei v Joshua Lemako & 5 others [2021] KEELC 1506 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 8th October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1506/eng@2021-10-12

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