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ELCPartially AllowedEnvironment and Land Appeal E044 of 2022· [2023] KEELC 21013 (KLR)

Makapia v Makapia & another

Environment and Land Court
25 October 2023
DOD. O. Ohungo
1,511 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court replaced a land injunction with an inhibition, letting co-owners keep using the land while ownership disputes await trial.

What this practically means

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Executive summary

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The respondents filed a plaint in the Senior Principal Magistrate's Court at Mumias claiming to be joint registered proprietors with the appellant of South/Wanga/Ekero/515 and alleging that the appellant had grabbed and was cultivating the second respondent's portion. They sought eviction, subdivision, mesne profits and, by Notice of Motion dated 31st May 2022, an injunction against the appellant and an inhibition registered against the suit property. The magistrate (Hon. Thomas Obutu, SPM) granted both reliefs on 15th September 2022. The appellant appealed, contending that ownership and the legality of title were disputed, that no prima facie case or irreparable loss was established, and that the dispute required evidence at trial. The respondents maintained that a prima facie case had been established and that the appeal improperly addressed the merits of an untried suit. Ohungo J applied the principle that an appellate court will not disturb an inferior court's exercise of discretion unless it is clearly wrong, and the Giella v Cassman Brown sequential test for injunctions. Holding that both parties are joint registered proprietors entitled to the rights under Section 24 of the Land Registration Act, the court found that contested affidavit allegations could not displace those rights and that the dispute over portions was a matter for trial; injuncting one registered proprietor was therefore wrong. However, preservation of the property was warranted given the appellant's attempt to register a partition, best achieved through an inhibition. The appeal succeeded in part: the injunction (Prayer B) was dismissed, an inhibition was ordered pending trial, costs of the motion were reserved to the cause, and no order was made on the appeal's costs.

Key legal issues

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01

Whether the injunction granted by the subordinate court was justified

Holding

The injunction was wrongly granted; the dispute over portions between joint registered proprietors is a matter for trial

Reasoning

Both parties are joint registered proprietors entitled to rights under Section 24 of the Land Registration Act. The respondents' contested affidavit allegations could not displace those rights. The proper course was to have the suit heard on the merits rather than injunct one registered proprietor.

p. 3
02

Whether the suit property should be preserved pending trial

Holding

Yes, by way of an inhibition rather than an injunction

Reasoning

Given contestations including the appellant's attempt to register a partition on his own perception of entitlement, preservation was needed. An inhibition operates within the register while letting parties continue their day-to-day lives on the ground, being the least disruptive mechanism.

p. 3

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong due to misdirection or wrong result
  • The Giella v Cassman Brown conditions for interlocutory injunctions are applied as sequential hurdles

Court orders

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  1. 1.Prayer B of Notice of Motion dated 31st May 2022 is dismissed
  2. 2.Pending hearing and determination of the suit in the Subordinate Court, an inhibition be registered against the parcel of land known as South/Wanga/Ekero/515
  3. 3.Costs of Notice of Motion dated 31st May 2022 shall be in the cause
  4. 4.No order as to costs of the appeal

Authorities

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Legislation

  • Land Registration ActSection 24

Cases cited (3)

  • Mombasa Cement Limited v Kitsao & 34 others
    (Civil Appeal E016 of 2020) [2022] KECA 562 (KLR)

    Principles for interfering with the exercise of discretion by an inferior court

  • Giella –v- Cassman Brown & Co Ltd
    [1973] EA 358

    Conditions for grant of interlocutory injunction

  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR

    Sequential application of injunction conditions

On appeal from
Senior Principal Magistrate's Court at Mumias
Mumias MCELC No. E029 of 2022
Jurisdiction invoked
First appellate jurisdiction over subordinate court decisions (Environment and Land Court Act)

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, "Makapia v Makapia & another", Case Analysis (2023). Environment and Land Appeal E044 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21013/eng@2023-10-25

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