Lewnantai Kusenge Lei v Joshua Lemako & 5 others [2021] KEELC 1506 (KLR)
The bottom line
#A Kenyan landowner challenging a boundary ruling must appeal or seek judicial review — filing a fresh injunction suit will fail.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case warranting a temporary injunction
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
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.
Whether a mandatory injunction should issue to restrain implementation of the Land Registrar's Ruling
No; no special circumstances existed, and the Plaintiff declined to follow the statutory appeal process
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 8th October, 2020 is dismissed
- 2.Costs will be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.