Sawa & another v Nyongesa (Environment and Land Case E008 of 2025) [2025] KEELC 5781 (KLR)

The court observed that a 2012 judgment awarded the Respondent 5 acres of the suit land and that an inhibition reflecting that judgment appears on the title. It held that the title, though prima facie evidence of ownership, is subject to overriding interests such as adverse possession and/or trust under section 28 of the Land Registration Act, and whether such an overriding interest exists must be determined at the main hearing.

The Applicants were apprehensive that the Respondent would transfer the land to himself and sell it to third parties. Applying the principles in Giella v Cassman Brown and the definition of balance of convenience in Pius Kipchirchir Kogo v Frank Kimeli Tenai, the court concluded that the risk of harm was lower if the injunction was granted than if it was refused, preserving the suit property pending full hearing.

The court noted the application sought orders pending determination of the application itself, but declined to penalise the procedural lapse. Guided by Article 159(2)(d) of the Constitution and the oxygen principles under sections 1A, 1B and 3A of the Civil Procedure Act, it held that courts should not give undue weight to procedural technicalities where the intention is clear and no prejudice results.