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ELCPartially AllowedNot stated in judgment· [2026] KEELC 3241 (KLR)

Shitabule v Watako & another (Environment and Land Case E010 of 2025) [2026] KEELC 3241 (KLR)

Environment and Land Court
14 May 2026
ANA. Nyukuri
1,334 words in judgment
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The bottom line

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The Environment and Land Court in Kakamega protected a buyer who has occupied his one-acre plot since 2006, freezing the land title until the dispute is fully heard.

What this practically means

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Executive summary

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The applicant moved the court by notice of motion dated 12th March 2025 seeking an inhibition against any registration or dealing with title number E/Wanga/Eluche/2266 and a temporary injunction restraining the respondents from interfering with his occupation of one acre excised from that parcel, pending the hearing of a suit anchored on adverse possession. He said he bought the acre in 2006 and took possession, after which the 2nd respondent sold two acres of the same title to the 1st respondent, who registered himself as proprietor. The 1st respondent opposed, raising a preliminary objection on jurisdiction under section 7 of the Civil Procedure Act and contending the application was res judicata following a dismissed application in Mumias court; he relied on a certificate of confirmation of grant and his purchase of the property for Kshs 1,500,000. The 2nd respondent supported the application and counterclaimed for cancellation and redistribution of the title, conceding the applicant one acre. Applying the Giella v Cassman Brown principles, the court found the applicant's occupation since 2006 undisputed, found a triable case with chances of success, irreparable injury and balance of convenience in his favour, and declined the res judicata objection because the prior pleadings were not availed. The court granted the inhibition and temporary injunction and awarded costs to the applicant against the 1st respondent, but declined to involve the OCS Shianda Police Station in enforcing compliance.

Key legal issues

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01

Whether the applicant is entitled to orders of inhibition and temporary injunction pending trial

Holding

Yes - a prima facie triable case with chances of success was shown, the applicant is in occupation and would suffer irreparable injury, and the balance of convenience favours granting the orders

Reasoning

The applicant's occupation since 2006 was not disputed. The plaintiff's suit is anchored on adverse possession, requiring prima facie continuous occupation without the owner's permission for 12 years. The res judicata objection failed because the pleadings before the trial court were not availed. The 2nd respondent conceded the applicant's right and counterclaimed for redistribution giving him one acre. Inhibition and injunction followed.

p. 3
02

Res judicata objection based on a prior dismissed application in Mumias court

Holding

Objection failed at this interlocutory stage because the pleadings before the trial court were not availed for the court to determine the question

Reasoning

The 1st respondent invoked section 7 of the Civil Procedure Act and a prior ruling of 16th July 2024, but did not produce the pleadings in the earlier suit. Without those pleadings the court could not compare the causes of action or determine whether the suit was res judicata, so the objection could not be sustained on the material before it.

p. 3

Legal principles established

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  • An inhibition is an order prohibiting for the time being the registration of dealings on a title and is in the nature of an injunction
  • An applicant for adverse possession must demonstrate prima facie continuous occupation of the suit property without the owner's permission for 12 years

Court orders

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  1. 1.An order of inhibition, inhibiting any registration and or dealings in respect of title number E/Wanga/Eluche/2266 pending the hearing and determination of this suit
  2. 2.An order of temporary injunction restraining the respondents from interfering with the applicant's peaceful occupation, use, stay and access to one (1) acre of land out of land parcel No. E/Wanga/Eluche/2266 pending the hearing and determination of this suit
  3. 3.Costs of the application awarded to the applicant and borne by the 1st respondent
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, "Shitabule v Watako & another (Environment and Land Case E010 of 2025) [2026] KEELC 3241 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3241/eng@2026-05-14

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