Navaka (Suing as administrator ad litem of the Estate of Nicodemus Omondi Onani (Deceased) v Adundo (Administrator of the Estate Of Adundo Wameyo Wameyo (Deceased) & another (Environment & Land Case E10 of 2023) [2024] KEELC 68 (KLR)
The bottom line
#The court refused to evict-style injunction relief but froze any sale or transfer of the disputed Busia land until the ownership dispute is fully heard.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
A prima facie case was established because documents including the mutation form and application for transfer suggest a sale of a portion of the suit land to the plaintiff's father
Applying Giella v Cassman Brown and Nguruman, the court held it need not examine the merits closely. The Green Card shows the 1st defendant and co-proprietors as registered owners, but the plaintiff produced a mutation form, consent to sub-divide and receipt suggesting his father purchased 5 acres designated as parcel Marachi/kingandole/1245. That raised a fair and bona fide question as to the existence of the right alleged, sufficient on a balance of probabilities.
Irreparable injury
The injunction limb on irreparable injury was not satisfied because the plaintiff's family is not in occupation of the suit land
The parties disputed whether the plaintiff's family was forcefully evicted or vacated voluntarily in 1990; those are trial issues. What was clear was that the 1st defendant is in occupation and possession, and cannot be restrained from cultivating land he occupies. The remedy of injunction was therefore doubtful, but the land still required preservation pending trial.
Balance of convenience and preservation of the suit land
The balance of convenience favoured maintaining the status quo with an order that the suit land is not alienated, effected through an inhibition under Section 68(1) of the Land Registration Act
Unless the land was preserved, the court would be unable at trial to determine whether Onani purchased the 5-acre portion designated Marachi/kingandole/1245 or was merely a lessee who voluntarily vacated. Maintaining the status quo while barring alienation protected both parties' competing interests and preserved the subject matter of the litigation pending full determination.
Legal principles established
#- Registered proprietors are deemed absolute owners of land under Section 24(a) of the Land Registration Act, but their title can be impeached or subjected to overriding interests
- Where damages would not adequately protect the subject matter, the court may invoke Section 68(1) of the Land Registration Act to inhibit registration of any dealing with the land pending trial
Court orders
#- 1.The defendant and his family shall remain in occupation and possession of land parcel No Marachi/kingandole/531 or any sub-division thereof but shall not sell, charge, lease or in any way alienate the same until the suit is heard and finally determined or until further orders of the court
- 2.The Land Registrar Busia (2nd defendant) shall forthwith register the inhibition on title No Marachi/kingandole/531 or any resultant sub-divisions thereof
- 3.The parties shall file and exchange all relevant documents and attend pre-trial before the Deputy Registrar on 19th February 2024 to confirm compliance and take a date for hearing
- 4.The suit must be heard and determined within the next 12 months or the order of inhibition shall lapse unless otherwise extended by the court
- 5.The Deputy Registrar shall forthwith serve this order on the Land Registrar Busia to ensure compliance
- 6.Costs of the application shall be in the cause
- Jurisdiction invoked
- Order 40 Rules 1 and 2 of the Civil Procedure Rules; Section 68(1) of the Land Registration Act (inhibition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Navaka (Suing as administrator ad litem of the Estate of Nicodemus Omondi Onani (Deceased) v Adundo (Administrator of the Estate Of Adundo Wameyo Wameyo (Deceased) & another (Environment & Land Case E10 of 2023) [2024] KEELC 68 (KLR)", Case Analysis (2024). Notice of Motion dated 16th September 2023 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/68/eng@2024-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.