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ELCAllowedELC LC E338 OF 2025· [2026] KEELC 4054 (KLR)

Auma & another v Agak & 7 others (Environment and Land Case E338 of 2025) [2026] KEELC 4054 (KLR)

Environment and Land Court
26 June 2026
3,497 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court protected homebuyers who paid in full and moved in, even after the original sale was nullified in succession proceedings.

What this practically means

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Executive summary

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This is a first-instance interlocutory ruling of the Environment and Land Court by Hon. T. Murigi J. The Plaintiffs, purchasers of L.R No. 209/8477 (IR 29259) under a sale agreement dated 30th October 2017 for Kshs 15,500,000, sought temporary injunctions restraining the Respondents - vendors acting as intended administrators of the estate of Beniah Kingsley Nyabul and the beneficiaries - from transferring, alienating, selling or charging the property, and from evicting the Plaintiffs and their tenants, pending the hearing of the suit. The sale was nullified in the succession proceedings (Milimani Succession Cause No. 534 of 2017) under section 71 of the Law of Succession Act, and a ruling of 26th June 2025 ordered surrender of the original title documents, prompting this application. The 2nd Respondent swore a replying affidavit on behalf of the 3rd, 4th, 6th, 7th and 8th Respondents stating they did not oppose the application and wished to regularise the transaction. Applying the Giella v Cassman Brown principles, the Court held the Plaintiffs established a prima facie case: they paid the full purchase price, took possession from March 2018, made substantial improvements, and acquired an equitable interest which survives nullification of the sale. Irreparable harm was demonstrated given the risk of transfer to third parties, and the balance of convenience favoured maintaining the status quo. The application was allowed with both injunctions granted, and costs were ordered to abide the outcome of the main suit.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with probability of success

Holding

Yes - full payment of the purchase price, possession since March 2018, and the imminent surrender of title pursuant to the 26th June 2025 succession ruling demonstrate a recognisable equitable interest at risk

Reasoning

The Court found the Plaintiffs entered a sale agreement with the intended administrators at Kshs 15,500,000, paid in full, and took possession from March 2018 with the consent of all beneficiaries, some of whom did not oppose the application. The equitable interest arising from full payment and long possession survives nullification of the sale under section 71 of the Law of Succession Act and is the subject of the main suit. The succession ruling ordering surrender of the title creates an imminent risk of transfer prejudicial to the Plaintiffs.

p. 13
02

Whether the Plaintiffs would suffer irreparable harm not compensable by damages

Holding

Yes - dispossession from a property in which the full purchase price and improvement costs are invested, with a real risk of transfer to third parties, cannot be adequately remedied by damages

Reasoning

The Court noted the Plaintiffs paid the full purchase price, occupied the property for over seven years, made substantial improvements raising its value to an estimated Kshs 30,000,000, and have sitting tenants. Surrender of the title creates a real and immediate risk of transfer to third parties, which would make recovery of the Plaintiffs' interests difficult if not impossible. The Court applied the principles in Nguruman Limited and Isaac Musyoki Komoni on irreparable harm.

p. 15
03

Where the balance of convenience lies

Holding

It favours the Plaintiffs - maintaining the status quo causes no significant prejudice to the Respondents, whereas ending the occupation could cause serious and possibly irreversible harm

Reasoning

The Plaintiffs had physically occupied the suit property for over seven years, invested substantial sums in improvements, and had sitting tenants. Most Respondents supported the application and wished to regularise the transaction. The Court weighed the hardship on each side and concluded that preserving the status quo pending trial favours the Applicants.

p. 16

Legal principles established

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  • A purchaser who has paid the entire consideration under a sale agreement and taken possession with the consent of all interested parties acquires a recognisable equitable right pending formal conveyance
  • Nullification of a sale under section 71 of the Law of Succession Act does not extinguish a purchaser's equitable interest arising from full payment and long possession

Court orders

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  1. 1.A temporary injunction restraining the Respondents, their agents, servants or any persons acting on their behalf, from transferring, alienating, selling, charging or dealing in any manner with L.R No. 209/8477 (IR 29259) pending the hearing and determination of the suit
  2. 2.A temporary injunction restraining the Respondents, their agents, servants or any persons acting on their behalf, from evicting the Plaintiffs and their tenants from L.R No. 209/8477 (IR 29259) pending the hearing and determination of the suit
  3. 3.Costs shall abide with the outcome of the main suit

Authorities

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Legislation

  • Constitution of KenyaArticles 40 and 159
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(c) and (e)
  • Civil Procedure RulesOrder 40 Rule 1, Order 40 Rule 3, Order 40 Rule 4(1), Order 51 Rules 1, 3 and 13(2)
  • Law of Succession ActSection 71

Cases cited (6)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Nguruman Ltd v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kanorero River Farm Ltd & 3 Others v National Bank of Kenya Ltd
    [2002] 2 KLR 207
  • Wanaina Kenyanjui & 2 Others v Andrew Ng'ang'a
    [2013] eKLR
  • Isaac Musyoki Komoni v Sammy Kaumbulu Mbuvi
    [2022] eKLR
Jurisdiction invoked
Articles 40 and 159 of the Constitution of Kenya 2010; Sections 1A, 1B, 3, 3A and 63(c) and (e) of the Civil Procedure Act; Order 40(1) rules 3, 4(1), Order 51 Rules 1, 3 and 13(2) 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, "Auma & another v Agak & 7 others (Environment and Land Case E338 of 2025) [2026] KEELC 4054 (KLR)", Case Analysis (2026). ELC LC E338 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4054/eng@2026-06-26

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