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ELCPartially AllowedNot stated in the judgment (arising from an Originating Summons pending before the Environment and Land Court, Migori)

Mwita & 2 others v Mangera (Enviromental and Land Originating Summons E047 of 2025) [2026] KEELC 1825 (KLR)

Environment and Land Court of Kenya
19 March 2026
2,199 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Migori court froze all dealings on disputed land so an adverse possession claim can be fairly heard, protecting occupiers who've farmed it for decades.

What this practically means

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Executive summary

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The applicants, plaintiffs in a pending Originating Summons before the Environment and Land Court at Migori, moved the court by Notice of Motion dated 5th November 2025 seeking an order directing the County Land Registrar, Migori to place a restriction stopping any dealings on land parcel Bukira/Buhirimonono/581, registered in the name of the deceased Muturi Nyagena Maroa in 1986 and transmitted to the respondent, Sibora Nyakehore, in 1995. The applicants claimed to have been in open, quiet and uninterrupted occupation and cultivation of the land for over 37 years since 1988, asserting an adverse possession claim, and feared the registered owner would transfer the land to third parties, complicating the litigation. The respondent opposed the application, asserting the applicants each had their own parcels of land, that the 1st applicant's occupation of nine years was with her permission, and that the other applicants were strangers to her land. The applicants, relying on Giella v Cassman Brown, submitted they had established a prima facie case, irreparable loss and balance of convenience; the respondent filed no submissions. The court framed two issues: whether the application was merited, and costs. Distinguishing a restriction (made by the Registrar under Section 76 of the Land Registration Act, 2012) from an inhibition (granted by the court under Section 68), the court treated the prayer as one for an inhibition. Although the applicants had not demonstrated a risk of alienation, the court held it had a duty to preserve the suit property pending hearing, and allowed prayer 3 by directing the Land Registrar, Migori County, to place an inhibition on the register. Costs were placed in the cause, and the matter was set for mention on 20th May 2026 for Order 11 compliance.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants' application for an order of temporary injunction/restriction over land parcel Bukira/Buhirimonono/581 is merited
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Whether the court should grant preservatory orders (inhibition) over the suit property pending hearing and determination of the Originating Summons

Holding

The court allowed prayer 3 and directed the Land Registrar to place an inhibition on the register of the suit parcel, acting under Section 68(1) of the Land Registration Act.

Reasoning

The applicants claimed the suit land through adverse possession and demonstrated occupation and utilization. Although they did not demonstrate risk of alienation, the court held it has a duty to preserve suit property, since alienation would complicate the litigation and render any future order nugatory. Inhibition is the judicial equivalent of the restriction sought, and the conditions for inhibition were sufficiently engaged by the applicants' demonstrated occupation and arguable adverse possession claim.

p. 5
02

The distinction between a restriction and an inhibition under the Land Registration Act, 2012

Holding

A restriction is made by the Registrar under Section 76, while an inhibition is made by the court under Section 68; the applicants' prayer for a restriction was therefore properly treated as a prayer for an inhibition.

Reasoning

The court compared Section 68 (power to inhibit registered dealings) with Section 76 (restrictions by the Registrar) and concluded that because the applicants sought the order from the court rather than the Registrar, the order sought could only be understood as an inhibition. The court adopted the reasoning in Miriti v Kalayu that an inhibition is in the nature of a prohibitory injunction restraining dealings on land pending further orders.

p. 4

Legal principles established

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  • Under Section 68(1) of the Land Registration Act, 2012, the court has discretion to inhibit registered dealings with land to preserve the subject matter of a suit pending determination.
  • A restriction is an order made by the Registrar under Section 76 of the Land Registration Act, whereas an inhibition is granted by the court under Section 68.

Court orders

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  1. 1.Pending the hearing and determination of the summons, an order directing the Land Registrar in charge of Migori County to place an inhibition stopping any dealings on the register of land parcel no. Bukira/Buhirimonono/581
  2. 2.Costs of the application to be in the cause
  3. 3.Matter to be mentioned on 20th May 2026 for compliance purposes under Order 11 of the Civil Procedure Rules, with trial bundles to be filed before then
  4. 4.Applicants directed to serve both the outcome and the mention notice on the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya), Order 51 Rule 1 and Order 40 Rule 1 of the Civil Procedure Rules, and Section 68 of the Land Registration Act, 2012

Relief refused

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Temporary injunction as sought in the application (Prayer 2 was spent; the court instead granted an inhibition under Section 68 of the Land Registration Act rather than the restriction the applicants sought)

The applicants sought a restriction but such orders are made by the Registrar; the court treated the request as an inhibition, and although the applicants did not demonstrate a risk of alienation, the court preserved the property under Section 68(1)

p. 5

Costs

The costs of this application shall be in the Cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Pending the hearing and determination of the summons herein, this Court hereby issues and order directing Land Registrar in charge of Migori County to place an inhibition stopping any dealings on the register of land parcel no. Bukira/Buhirimonono/581.
p. 5Final orders - inhibition over suit property
Although the applicants approached this court seeking a restriction, this reprieve is granted by the registrar while inhibitions are granted by the court.
p. 4Distinction between restriction and inhibition under the Land Registration Act
Whenever the court is of the opinion that there is need to preserve a property by issuance of an order, it acts under Section 68(1) of the Land Registration Act, and this is the provision this court will act on herein.
p. 5Court's power to preserve suit property
The costs of this application shall be in the Cause.
p. 5Costs

Issues in the judgment

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minor

The judgment does not state the case number of the Originating Summons or the names of the 2nd and 3rd plaintiffs; the record refers only to 'the 1st Plaintiff' and 'the 2nd and 3rd defendant' in the supporting affidavit, apparently in error

minor

The judgment inconsistently uses both 'restriction' (as sought) and 'inhibition' (as granted), clarifying the distinction only in the analysis

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, "Mwita & 2 others v Mangera (Enviromental and Land Originating Summons E047 of 2025) [2026] KEELC 1825 (KLR)", Case Analysis (2026). Not stated in the judgment (arising from an Originating Summons pending before the Environment and Land Court, Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1825/eng@2026-03-19

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