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ELCPartially AllowedBungoma ELC Appeal (Memorandum of Appeal dated 05/04/2024)· [2025] KEELC 555 (KLR)

Ndalila & 2 others v Wambu (Environment and Land Appeal E013 of 2024) [2025] KEELC 555 (KLR)

Environment and Land Court
13 February 2025
ECE.C. Cherono
3,057 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Bungoma's land court allowed a family dispute appeal only in part, restricting occupants to their homestead and ordering two overlapping land cases merged.

What this practically means

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Executive summary

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The Appellants, defendants in Bungoma CM ELC E019 of 2024, appealed against a ruling of the trial magistrate (Hon. Tom Orland) granting the Respondent a temporary injunction restraining them from entering or interfering with land parcels E.Bukusu/W.Sang'alo/9304, 9307 and 9308 and ordering re-opening of a surveyed access road. The Respondent, registered owner of the suit properties (subdivisions of E.Bukusu/W.Sang'alo/676 from his father's estate), alleged that the Appellants invaded the land in November 2023, destroyed property and assaulted his son. The Appellants contended their deceased father purchased portions from beneficiaries of the estate and had occupied the land since 1985, acquiring rights by adverse possession, and that the suit was sub judice to Bungoma ELC(OS) E005 of 2024 where they claim adverse possession. Applying Giella v Cassman Brown and the principles in Mbogo v Shah on interference with discretion, the court found the Respondent held certificates of title and established a prima facie case and risk of irreparable harm, but held the balance of convenience favoured the Appellants. The court found the trial suit sub judice to the OS suit and, noting that magistrate courts lack jurisdiction over adverse-possession claims, ordered the trial suit transferred to the ELC for consolidation with E005 of 2024. The appeal was allowed only in part: the Appellants were restricted to the area where they have constructed their home with reasonable access-road allowance, the suit was transferred for consolidation, and each party was to bear their own costs.

Key legal issues

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01

Whether the trial magistrate properly exercised discretion in granting the temporary injunction

Holding

The discretion was substantially sound as to the registered owner's prima facie case and irreparable harm, but the court limited the injunction by confining the Appellants to the area of their home and access road

Reasoning

Applying Giella v Cassman Brown, the court found the Respondent held certificates of title and had a prima facie case, and would suffer irreparable damage not compensable in damages. However, the balance of convenience was found to tilt in favour of the Appellants, and the injunction could not operate against occupation already established where structures existed.

p. 5
02

Whether the trial suit was sub judice to Bungoma ELC(OS) E005 of 2024

Holding

Yes; the two matters touch the same subject matter and co-related parties and should be consolidated

Reasoning

The Appellants claim adverse possession of portions of the same land in the other suit. Allowing both suits to proceed separately risked conflicting determinations. Since magistrates' courts lack jurisdiction over adverse-possession claims, the trial suit was to be transferred to the ELC for consolidation.

p. 6

Legal principles established

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  • An appellate court will not interfere with a trial court's exercise of discretion unless the court misdirected itself or was clearly wrong resulting in injustice
  • At an interlocutory stage the court is forbidden from deciding with finality the facts urged by the parties
  • A certificate of title is prima facie evidence of legal proprietorship of land under the Land Registration Act
  • A temporary injunction cannot issue where the act complained of has already taken place
  • It is undesirable to make a status quo order without clearly describing the state of affairs to be preserved
  • Sub judice bars one court from trying a matter pending before another court between the same parties under the same title

Court orders

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  1. 1.The Appellants shall restrict their occupation and use to the area where they have constructed their home with a reasonable allowance as to the existing access road
  2. 2.Bungoma CM-ELC E019 of 2024 shall be transferred to the Environment and Land Court for purposes of consolidation with Bungoma ELC(OS) E005 of 2004
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure Actsections 3A and 63
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 3
  • The Land Registration Act, No. 3 of 2012sections 24(1), 25(1) and 26(1)

Cases cited (6)

  • Mbogo & Another -v- Shah
    1968 E.A. 93
  • Giella -v- Cassman Brown & Company Ltd
    1973 EA 358
  • Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR
  • Peter Kasimba & 219 others V Kwetu Savings & Credit Co-operative Society Limited & 11 others
    (2020) eKLR
  • Bryan Chebii Kipkoech V Barnabas Tuitoek Bargoria & Another
    (2019) KLR
  • Thugi River Estate Limited & another v National Bank of Kenya Limited & 3 others
    [2015] eKLR
On appeal from
Chief Magistrate's Court, Bungoma (Bungoma CM ELC E019 of 2024)
Bungoma CM ELC E019 of 2024
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over the trial magistrate's ruling (appeal against exercise of discretion in granting a temporary injunction)

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, "Ndalila & 2 others v Wambu (Environment and Land Appeal E013 of 2024) [2025] KEELC 555 (KLR)", Case Analysis (2025). Bungoma ELC Appeal (Memorandum of Appeal dated 05/04/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/555/eng@2025-02-13

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