Saina & another v Saina & another (Environment & Land Case E036 of 2022) [2025] KEELC 4475 (KLR)
The bottom line
#A Kenyan court protected disputed estate land from registration but refused to let heirs cultivate it yet, since they couldn't prove which exact parcel they were owed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have established a prima facie case with a probability of success to warrant interlocutory relief
- 2.Whether the applicants demonstrated irreparable loss and damage not compensable by damages
- 3.Whether the balance of convenience tilts in favour of granting temporary cultivation/mandatory orders
- 4.Whether special or exceptional circumstances exist to justify a temporary mandatory injunction
- 5.Whether the 1st applicant has locus standi as legal representative of the estate to institute the suit
- 6.Whether this court, and not the High Court succession cause, has jurisdiction over the dispute
Key legal issues
#Locus standi of the 1st applicant as administratrix
The 1st applicant, as legal representative of the estate which included the suit land, has locus standi to file the suit challenging dealings over the estate land
The estate of a deceased person vests in the legal representative. The amended certificate of confirmation of grant dated 27/6/2011 vested LR No. 2217/3 in the 1st applicant and has not been set aside or revoked. Her rights to challenge any dealings, title, use and occupation of estate land are properly before the ELC, so she cannot be said to lack capacity.
Jurisdiction as between the ELC and the High Court succession cause
The dispute over the sale agreement and third-party claims to the land falls within the ELC's jurisdiction under Article 162(2), not the probate court
Citing Re Estate & Alice Mumbua Mutua, the court reasoned that a dispute between buyer and seller of land concerns title and falls squarely under Article 162(2), ousting the High Court's jurisdiction under Article 165(5). Claims by and against third parties who are not survivors or beneficiaries are for resolution outside the probate framework, in a civil court.
Prima facie case
A prima facie case was established by the applicants
The applicants asserted an unmistakable right as legal representative and beneficiary to the suit land, invaded by the 2nd respondent, a third party to the estate. Material was laid before the court and the sale agreement giving rise to the 2nd respondent's claimed right did not comply with Section 3(3) of the Law of Contract Act and Section 38 of the Land Act.
Irreparable damage, balance of convenience and mandatory injunction
Although a prima facie case existed, the applicants failed to demonstrate irreparable loss, the balance of convenience, or special circumstances justifying temporary cultivation or mandatory orders
Following Nguruman and Mrao, speculative injury is insufficient; injunction is issued to prevent grave, actual and demonstrable injury not compensable in damages. The applicants did not specify out of which resultant titles the 30 acres lay, orders could not issue in vain, and there was non-disclosure on both sides.
Legal principles established
#- Property belonging to a deceased person's estate can only be dealt with through the legal representative; dealings without the legal representative's involvement are invalid
- Disputes between an estate and third parties over land fall within the jurisdiction of the Environment and Land Court under Article 162(2), not the probate court
- A temporary mandatory injunction requires special or exceptional circumstances and the clearest of cases
- Court orders cannot issue in vain; a party must be specific as to what the court should grant
Court orders
#- 1.An order for maintenance of status quo inhibiting the Land Registrar from registering any dealings over the register for LR No. Chepsiro/Kibuswa Block 5/4-97, the resultant titles to the conversion of former LR No. 2217/3
- 2.The application otherwise stands dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 162(2)(b) and 165 of the Constitution; Sections 68 of the Land Registration Act, 18(c) Environment and Land Court Act and 3A of the Civil Procedure Act
Relief refused
#Temporary order allowing the applicants to cultivate 30 acres of Title No. Kitale Municipality No. 2217/3
The applicants failed to demonstrate irreparable loss and damage and the balance of convenience; no special or exceptional circumstances were shown, and they did not specify out of which resultant titles the 30 acres should be carved
Order for the County Land Registrar and Surveyor to demarcate 30 acres from the larger title for handover to the applicants
Such an order amounts to specific performance which can only be issued at a final hearing
Costs
No order as to costs - the application stands dismissed with no order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I decline to grant the order of specific performance at this stage. In the interest of justice, I issue orders for the maintenance of status quo, that is to say that the Land Registrar is inhibited from registering any dealings over register for LR No. Chepsiro/Kibuswa Block 5/4-97
The application, save for issuance of inhibitory orders under inherent jurisdiction of this court under Section 68 of the Land Registration Act, Section 18(c) Environment and Land Court Act and Section 3A of the Civil Procedure Act, stands dismissed with no order as to costs.
Any sale, transfer and dealing with the estate of the deceased person without the involvement, participation and approval of a legal representative is invalid, null and void ab initio.
The sale agreement giving rise to that bona fide purchaser's 'right' unfortunately does not comply with Section 3(3) of the Law of Contract Act and Section 38 of the Land act.
From the perspective of all the parties pleading and disposition, it is quite evident that both sides are being economical with the truth.
Issues in the judgment
#The judgment refers inconsistently to the Eldoret succession cause number - once as No. 12 of 2001 and later as No. 12 of 2011
The date of the 2nd respondent's statement of defence and counterclaim is internally inconsistent with the agreement it pleads
The judgment inconsistently dates the sale agreement to the 2nd respondent (8/8/2011 in most places but 8/11/2022 in one passage)
The judgment describes non-disclosure inconsistently as 'material non-disclosure' and later 'non-material disclosure'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saina & another v Saina & another (Environment & Land Case E036 of 2022) [2025] KEELC 4475 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 28/1/2025 in a suit concerning Title No. Kitale Municipality No. 2217/3). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4475/eng@2025-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.