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ELCOtherEnvironment & Land Case 7 of 2023· [2023] KEELC 18575 (KLR)

Hassan v Registrar of Lands, Lamu County & 11 others

Environment and Land Court
5 July 2023
EME.K. Makori
943 words in judgment
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The bottom line

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A Kenyan land dispute judge ordered official registry and survey reports instead of deciding who owns contested Mokowe plots, showing registry evidence is decisive.

What this practically means

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Executive summary

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The Applicant, Kassim Athman Hassan, sought a temporary injunction restraining the twelve Defendants from entering, occupying, fencing or otherwise interfering with Plot No Mokowe/511 at Mokowe Town in Lamu County pending trial, claiming he inherited the plot from his forefathers and that the 1st Respondent, the Registrar of Lands, illegally encroached on it and subdivided portions to the 3rd to 12th Respondents. The Respondents opposed, asserting they are registered owners of Plots Lamu/Mokowe New Township 1180 to 1189, titles issued on 6th September 2022, on which they claim to have long been in occupation and to have farmed and built; they disclaim knowledge of the Applicant's plot. Applying the Giella v Cassman Brown principles, the court found that both sides claimed ownership but that no evidence from the Lamu Lands Registry established whether the Respondents' parcels were split off from Plot Mokowe/511, nor how the Lamu County Government's Resettlement Program affected the plot. Declining to determine the injunction at that stage, E.K. Makori, J, in the spirit of active case management, directed the Land Registrar and Surveyor, Lamu County, to file within 60 days a report on the status of Plot Mokowe/511 and Parcels 1180 to 1189, factoring in the Resettlement Program, for further directions, citing Article 159(2)(c) on ADR. The injunction was neither granted nor expressly refused; no costs order appears.

Key legal issues

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01

Whether the Applicant established a prima facie case warranting a temporary injunction over Plot No Mokowe/511

Holding

The court did not resolve the competing ownership claims; lacking registry evidence, it declined to decide the injunction at that stage and instead directed an official report on the parcels' status.

Reasoning

Both sides claimed ownership - the Applicant through inheritance of Plot Mokowe/511, the Respondents through titles issued on 6th September 2022 over Lamu/Mokowe New Township plots 1180-1189, on which they claimed to have been in occupation and to have developed. No Lands Registry evidence demonstrated whether the Respondents' parcels were carved out of the Applicant's plot, and the effect of the Lamu County Government Resettlement Program was unclear. The court elected active case management, directing the Land Registrar and Surveyor to file a report within 60 days, framed under the multi-door dispute resolution approach and Article 159(2)(c).

p. 2

Legal principles established

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  • The Giella v Cassman Brown test governs whether an interlocutory injunction should issue: prima facie case with probability of success, irreparable injury not adequately compensable in damages, and balance of convenience if in doubt.

Court orders

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  1. 1.Land Registrar and Surveyor Lamu County to provide a report on the status of Land Parcel No Mokowe/511 and Land Parcels Nos Lamu/Mokowe New Township 1180 to 1189
  2. 2.The report to take into account the Resettlement Program by the County Government of Lamu and its impact, if any, on the said properties
  3. 3.The exercise to be carried out and report filed within 60 days for further directions

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(c)

Cases cited (1)

  • Giella v Casman Brown & Company Limited
    [997] E.A. 358

    Test for grant of interlocutory injunction: prima facie case, irreparable injury, balance of convenience

Jurisdiction invoked
Article 159(2)(c) of the Constitution invoked; Environment and Land Court original jurisdiction

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, "Hassan v Registrar of Lands, Lamu County & 11 others", Case Analysis (2023). Environment & Land Case 7 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18575/eng@2023-07-05

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