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ELCDismissedNotice of Motion dated 9/12/2020 (Kisumu ELC)· [2021] KEELC 3918 (KLR)

Benta Adoyo Ojode v Elizabeth Okelo & another [2021] KEELC 3918 (KLR)

Environment and Land Court
19 March 2021
AOAntony Ombwayo
712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A title deed alone does not guarantee an injunction in Kenya when long-term occupants claiming ancestral land are already in possession.

What this practically means

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Executive summary

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Benta Adoyo Ojode, the registered proprietor of Kisumu/Nyalenda 'A'/1121 following succession to her late husband Nashon Ojode Gwambo, moved the Environment and Land Court at Kisumu by Notice of Motion dated 9 December 2020 seeking a permanent injunction restraining Elizabeth Okelo and John Otuoma Achenja from constructing on the parcel and from collecting rental proceeds from houses built by her late husband. She alleged encroachment from around 2006, dealings without her consent, and attempts to sell the land. The defendants, in reply, traced their possession to family arrangements: Elizabeth Okelo's husband built rental units in 1987 on a portion given to him by Joseph Ochinga Gwambo, brother of the plaintiff's late husband, and the 2nd defendant built in 1984 on land given to his wife. They asserted the land was ancestral family land and that they have long been in possession and have developed it. Justice Antony Ombwayo found that the defendants are in possession and collecting rent, and that although the plaintiff is registered proprietor, there is doubt she is absolute owner given the ancestral-land claim. Both parties' claims appeared likely to succeed, so the court resolved the matter on the balance of convenience, holding that the status quo should be maintained because an injunction would amount to eviction and deprive the defendants of their livelihood. The application was dismissed with costs in the cause, the ruling being delivered by electronic mail under COVID-19 directions.

Key legal issues

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01

Entitlement to a permanent injunction against Defendants on registered land

Holding

Injunction refused despite plaintiff's registration because defendants' possession under an ancestral-land claim raised doubt as to absolute ownership

Reasoning

The court accepted the plaintiff is the registered proprietor, having succeeded to the estate of her late husband. However, the defendants have long been in possession, erected structures (in 1987 and 1984) and collect rent, asserting the land was family/ancestral land given to them by Joseph Ochinga Gwambo. Both parties' claims appeared likely to succeed, creating doubt, so the court declined to grant a permanent injunction at that stage and instead preserved the status quo.

p. 2
02

Balance of convenience

Holding

Status quo to be maintained; an injunction would amount to eviction and deprive defendants of livelihood

Reasoning

Finding both sides' claims arguable, the court resolved the interlocutory question on the balance of convenience. Granting a permanent injunction would effectively evict defendants in possession and destroy their livelihood, whereas maintaining the status quo preserves the position of both parties pending full trial of the competing ownership claims.

p. 2

Legal principles established

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  • Where a registered proprietor's absolute ownership is in doubt because defendants are in possession claiming ancestral land, an interlocutory injunction is determined on the balance of convenience and the status quo should be maintained

Court orders

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  1. 1.The application (Notice of Motion dated 9/12/2020) is dismissed
  2. 2.Costs in the cause
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land parcel Kisumu/Nyalenda 'A'/1121

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, "Benta Adoyo Ojode v Elizabeth Okelo & another [2021] KEELC 3918 (KLR)", Case Analysis (2021). Notice of Motion dated 9/12/2020 (Kisumu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3918/eng@2021-03-19

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