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ELCDismissedNotice of Motion dated 30th December 2024 (arising from Originating Summons dated 4th November 2021)· [2025] KEELC 3037 (KLR)

Asunda v Ongoma & another (Environment & Land Case E022 of 2021) [2025] KEELC 3037 (KLR)

Environment and Land Court
3 April 2025
2,051 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to protect an adverse possession claimant who sued over subdivided land while simultaneously attacking the very title he relied on.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court (Boaz N. Olao J) on the Applicant's Notice of Motion dated 30th December 2024 seeking a temporary injunction restraining the Respondents from constructing, developing, alienating or cultivating on land parcel Marachi/Elukhari/1409 pending trial of his adverse possession claim. The Applicant asserted over 40 years of open, peaceful and continuous occupation of the suit land, which was originally registered in 1966 in the name of Laurent Ongoma (deceased), the Respondents' father. The Respondents opposed, producing certificates of title showing the suit land had been subdivided into parcels Marachi/Elukhari/6052 and 6053 following succession proceedings, with the 2nd Respondent registered as proprietor of parcel 6053. The court applied the Giella v Cassman Brown principles. It held that no prima facie case was established for two reasons: first, the suit land no longer existed, rendering any orders in respect of it futile; second, a party claiming adverse possession must admit the registered owner's title, yet the Applicant pleaded that the registration was illegal and fraudulent, which the court said would perpetuate an illegality. Having failed the first limb, the Motion collapsed and the other limbs were unnecessary; in any event photographs showed a largely bare parcel with no extensive development. The Motion was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Applicant demonstrated a prima facie case for temporary injunction in an adverse possession claim

Holding

No prima facie case was established because the suit land no longer exists after subdivision and the Applicant's claim contradicted itself by alleging the registered title was fraudulently acquired.

Reasoning

The land parcel Marachi/Elukhari/1409 had been subdivided into parcels 6052 and 6053, so orders in respect of it would be in vain. Further, adverse possession requires admission of the registered owner's title, yet the Applicant pleaded that the registration of Laurent Ongoma was illegal and fraudulent. A party cannot ask the court to be registered as proprietor of a title it simultaneously impugns, as that would perpetuate an illegality.

p. 4
02

Whether irreparable injury and balance of convenience needed consideration

Holding

No; failure on the first Giella limb was fatal and the Motion collapsed, and in any event the photographs showed a largely bare parcel with no extensive development.

Reasoning

Relying on Nguruman, once a prima facie case fails, the court need not consider irreparable injury or balance of convenience. The court nonetheless noted that the photographs annexed to the Motion depicted a largely bare parcel of land with a temporary structure, contradicting the Applicant's claim of extensive development, so no irreparable harm compensable only by injunction was shown.

p. 4

Legal principles established

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  • A party claiming land by way of adverse possession must admit the title of the registered owner and cannot simultaneously attack that title as fraudulent.
  • If a prima facie case is not established, the other Giella principles need not be considered.

Court orders

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  1. 1.The Motion is dismissed.
  2. 2.Costs to the Respondents.

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 53 Rule 3

Cases cited (5)

  • Giella -v- Cassman Brown & Co. LTD
    1973 E.A 358
  • Mrao -v- First American Bank Of Kenya Ltd & Others
    C.A. Civil Appeal No 39 of 2002 [2003 eKLR]
  • Nguruman Ltd -v- Jan Bonde Nielsen & Others
    C.A. Civil Appeal No 77 of 2012 [2014 eKLR]
  • Films Rover International Ltd -v- Cannon Film Sales LTD
    1963 3 ALL ER 772
  • Nyutu & Others -v- Gatheru & Others
    1990 KLR 554
Jurisdiction invoked
Order 40 Rule 1 and Order 53 Rule 3 of the Civil Procedure Rules

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, "Asunda v Ongoma & another (Environment & Land Case E022 of 2021) [2025] KEELC 3037 (KLR)", Case Analysis (2025). Notice of Motion dated 30th December 2024 (arising from Originating Summons dated 4th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3037/eng@2025-04-03

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