Okun v Otwal (Environment and Land Appeal E104 of 2024) [2025] KEELC 4825 (KLR)
The bottom line
#The Environment and Land Court in Kisumu set aside an injunction won through incomplete disclosure, holding that a title deed alone does not settle disputed land ownership in Kenya.
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 lower court erred in issuing an order of temporary injunction in favour of the Respondent on the Respondent's application dated 7th November 2024
- 2.Whether the lower court erred in dismissing the Appellant's application dated 12th November 2024 seeking to set aside the ex parte injunction issued on 7th November 2024
Key legal issues
#Whether the Respondent established a prima facie case with a probability of success for the grant of a temporary injunction
The lower court misdirected itself by treating the Respondent's certificate of title as sufficient proof of a prima facie case without considering the Appellant's challenge based on trust, long occupation and overriding interest.
The court relied on Munyu Maina v Hiram Gathiha Maina to hold that where a registered proprietor's root of title is under challenge, the instrument of title alone is insufficient. The Appellant had raised a valid challenge claiming the first registered owner held the land in trust for her family and that she had occupied it for over 40 years. The lower court failed to weigh the Respondent's case against the Appellant's response, thus exercising its discretion wrongly. The contradictory and shifting accounts by the Respondent of how he acquired the property further undermined the prima facie case.
Whether the Respondent would suffer irreparable harm if the injunction was not granted
The Respondent did not demonstrate irreparable harm; the claim of psychological effects from potential exhumation was unsupported by evidence and not pleaded in the plaint.
It was common ground that the Respondent did not live on the suit property, and there was unchallenged evidence that the property already had several graves. No affidavit or other evidence showed that the Respondent or his family would suffer serious psychological effects if exhumation became necessary. The death and burial of the Appellant's daughter were not pleaded in the plaint and thus were not the subject of the suit, so the suit could not be rendered nugatory by the burial.
Whether the ex parte injunction was properly obtained and whether the Appellant's application to set it aside should have succeeded
The ex parte orders were obtained through misrepresentation and concealment of material facts and should have been set aside; the lower court erred in dismissing the Appellant's application without considering it on merit.
The Respondent concealed that the Appellant was in possession when he purchased the property, misleading the court into believing she had forcibly entered after purchase and fencing. Relying on Bahadurali Ebrahim Shamji v Al Noor Jamal and Challis v Attorney General, the court held that a party guilty of material non-disclosure cannot benefit from the court's orders. An application alleging abuse of the court's ex parte process concerns the fair administration of justice and must be prioritised and determined on its merits.
Legal principles established
#- When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of the acquisition of title.
- To determine whether a plaintiff has established a prima facie case in a dispute over ownership of land, the court must consider and express an opinion on the challenge mounted by the defendant against the plaintiff's title.
- An applicant for ex parte relief is under a duty to make full and fair disclosure of all material facts, failing which the court will set aside any action taken on the faith of the imperfect statement.
- An application to set aside ex parte orders on grounds of misrepresentation and concealment of material facts should be considered first and on its merits before the substantive application is determined.
Court orders
#- 1.The ruling and orders made by the lower court on 6th December 2024 allowing the Respondent's application dated 7th November 2024 and dismissing the Appellant's application dated 12th November 2024 are set aside and substituted with an order dismissing the Respondent's application dated 7th November 2024 and allowing the Appellant's application dated 12th November 2024 in terms of prayer 3 thereof
- 2.The Appellant shall have the costs of the appeal, while the costs of the two applications in the lower court shall be in the cause in the lower court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court at Winam (ELC No. E053 of 2024)
- ELC No. E053 of 2024
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's Court (Environment and Land Court appeal from Winam PMCC ELC No. E053 of 2024)
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.
The ruling and orders made by the lower court on 6th December 2024 allowing the Respondent’s application in the lower court dated 7th November 2024 and dismissing the Appellant’s application in the lower court dated 12th November 2024 are set aside and substituted with an order dismissing the Respondent’s application in the lower court dated 7th November 2024 and allowing the Appellant’s application in the lower court dated 12th November 2024 in terms of prayer 3 thereof.
When a registered proprietor’s root of title is under challenge, it is not suficient to dangle the instrument of title as proof of ownership.
for a court to determine whether a plaintifi has established a prima facie case in a dispute over ownership of land, the court must consider and express an opinion on the challenge that has been mounted by the defendant against the plaintifi’s title to the land in dispute.
The ex parte orders having been obtained through misrepresentation and concealment of material facts, the same should have been set aside by the court.
I am of the view that if the lower court had considered the fact that the Appellant had lived on the suit property for over 40 years with her deceased daughter who was 36 years old and that the Respondent had purchased the suit property with the Appellant and her deceased daughter in possession, the court would not have issued an injunction stopping the burial of the Appellant’s daughter on the suit property.
The Appellant shall have the costs of the appeal, while the costs of the two applications in the lower court shall be in the cause in the lower court.
Issues in the judgment
#The plaint is dated 7th November 2024 yet includes a sale agreement dated 15th May 2020 as a basis of purchase, while background also references the agreement of 15th May 2020 predating the plaint; internally the dates of the two sale agreements (27th February 2020 and 15th May 2020) sit oddly with the Respondent's affidavit claim that he purchased on 18th March 2019.
The judgment inconsistently names the first registered owner, at one point as Joash Osula Gwako and in the analysis as Joshua Osula Gwako.
The Appellant's daughter's age is inconsistently given as 39 and as 36 within the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okun v Otwal (Environment and Land Appeal E104 of 2024) [2025] KEELC 4825 (KLR)", Case Analysis (2025). ELC Appeal from ELC No. E053 of 2024 (Memorandum of Appeal dated 16th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4825/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.