Murage (Suing as the administrator of the Estate of Bernard Chiori) v Land Registrar, Kilifi County & another; KCB Bank Kenya Limited (Interested Party)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case for interlocutory injunction
Yes - the land registrar's replying affidavit corroborated that the suit land is registered in the name of the applicant's deceased father, and the applicant holds a confirmed grant transmitting the land to him
The court applied the Giella v Cassman Brown test. The applicant demonstrated registration of the suit land in his deceased father's name and his own status as administrator with a confirmed grant. The land registrar, custodian of land records, confirmed the registration, fortifying the applicant's case. The Court of Appeal had also found the applicant's claims a new cause of action, supporting the suit's viability.
Effect of failure to file replying affidavits
The factual averments in the supporting affidavit remain unchallenged and are taken as true
Apart from grounds of opposition by the 2nd defendant, no party filed a replying affidavit. Relying on Odiyo, Biwott and Haidara, the court held grounds of opposition address only issues of law and do not rebut sworn factual averments, so the applicant's averments stood unrebutted and were accepted as true.
Legal principles established
#- Unchallenged averments in a supporting affidavit, where no replying affidavit is filed, are taken to be true
- A prima facie case is a genuine and arguable case showing an apparently infringed right calling for rebuttal
Court orders
#- 1.A temporary injunction restraining the 1st and 2nd defendants from interfering with the suit land pending the hearing and determination of the suit
- 2.The other orders sought shall be determined during the trial of the suit
- 3.Costs in the cause
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act); interlocutory relief under Order 40(1)(a) and (b) of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kombe v White Unicorn Ltd & another (Environment and Land Case 195 of 2018) [2026] KEELC 5267 (KLR)[2026] KEELC 5267 (KLR)30 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Murage (Suing as the administrator of the Estate of Bernard Chiori) v Land Registrar, Kilifi County & another; KCB Bank Kenya Limited (Interested Party)", Case Analysis (2023). Environment & Land Case 46 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16216/eng@2023-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.