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ELCPartially AllowedNotice of Motion dated 30th April 2025· [2025] KEELC 5522 (KLR)

Walukaya (Suing as the administrator of the Estate of Francis Sibabo Salasya - Deceased) v Wabuko & 4 others (Enviromental and Land Originating Summons E015 of 2025) [2025] KEELC 5522 (KLR)

Environment and Land Court
23 July 2025
ANA. NYUKURI
3,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated 30th April 2025 in which the applicant, widow of the late Francis Sibabo Salasya, sought inhibition and prohibitory orders, a temporary injunction and, in the alternative, maintenance of status quo over title Nos. E. Wanga/Eluche/4120, 4121, 4122 and 4123 pending hearing of the suit. She claimed her late husband bought land out of parcel 1024 from the respondents' father in 1973, took possession, built a residence and slaughterhouse, and that after succession the respondents secretly subdivided and transferred the land to the 4th and 5th respondents. The respondents denied the claim and the alleged threats, asserting the 1973 agreement related to parcel 1024, not the suit titles, and that the applicant failed to establish a prima facie case, irreparable loss or the Giella conditions. The court framed three issues: entitlement to inhibition, satisfaction of injunction conditions, and whether status quo should issue. Applying the Giella test and Mrao definition of a prima facie case, the court held the applicant failed to demonstrate a prima facie adverse possession claim: she never specified the acreage claimed, and her assertion that parcel 1043 (0.09 ha) was subdivided into the four suit parcels (0.502 ha) was contradicted by green cards showing subdivision from parcel 4066. Inhibition and injunction were therefore refused. However, since the respondents acknowledged the applicant's occupation since 1973, the court granted status quo over the parcel she physically occupies, barring alienation, dealing or eviction pending trial, with no order as to costs.

Key legal issues

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01

Whether the applicant demonstrated a prima facie case of adverse possession to warrant inhibition or injunction

Holding

No - the applicant failed to specify the acreage and title claimed, and the green cards contradicted her alleged subdivision chain.

Reasoning

The applicant claimed parcel 1043 (0.09 ha) was subdivided into the four suit parcels (total 0.502 ha), which is arithmetically impossible since the alleged mother title is smaller than the resultant titles. Green cards showed the four titles derive from parcel 4066, and no nexus between 1043 and 4066 was proved. Without clarity on the specific title and area occupied, the court could not halt the registered proprietors' indefeasible rights.

p. 6
02

Whether status quo orders should issue in the alternative

Holding

Yes - since occupation since 1973 was uncontested, status quo on the applicant's actual occupation was maintained.

Reasoning

The respondents did not contest that the applicant and her late husband occupied the land and erected permanent structures since 1973 under a 1973 sale agreement. The court found she might be in adverse possession of the undisclosed area she occupies, and to preserve the suit, ordered status quo over the physically occupied parcel, barring alienation, dealing or eviction pending hearing.

p. 7

Legal principles established

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  • An applicant seeking inhibition or injunction over registered land based on adverse possession must first demonstrate a prima facie case regarding the adverse possession claim.
  • Registration confers absolute and indefeasible rights which can only be halted with clarity, specificity and justification.
  • A prima facie adverse possession claimant must identify the specific title and the specific area of land occupied.

Court orders

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  1. 1.That the status quo obtaining in regard to the parcel of land physically occupied by the applicant be maintained so that none of the parties shall alienate, transfer, subdivide, charge or in any way deal with that parcel of land, and there will be no eviction on, or invasion of, the said land occupied by the applicant, pending hearing and determination of this suit
  2. 2.No order as to costs
Jurisdiction invoked
Section 68 of the Land Registration Act and Order 40 Rule 1 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, "Walukaya (Suing as the administrator of the Estate of Francis Sibabo Salasya - Deceased) v Wabuko & 4 others (Enviromental and Land Originating Summons E015 of 2025) [2025] KEELC 5522 (KLR)", Case Analysis (2025). Notice of Motion dated 30th April 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5522/eng@2025-07-23

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