Charles Kibasi Magembe v Kennedy Omari Atina
The bottom line
#A Kisii court stopped a landowner from evicting a man who has lived on the disputed land for years, pending the full trial.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case
Established by the Applicant's long possession and the Respondent's undenied threats of eviction and sale
The Applicant annexed a sale agreement with the original owner and alleged over 12 years' possession conferring rights by operation of law. The Respondent did not deny the Applicant's presence on the portion nor the allegation that he was soliciting buyers and threatening forcible eviction. Undenied occupation plus direct threats showed an apparent infringement of a right warranting interlocutory protection.
Irreparable injury
Eviction from the Applicant's home would cause emotional and economic loss damages cannot redeem
The Applicant demonstrated the suit land is his home where he has lived over time. Abrupt or forcible relocation before trial would cause emotional and economic loss, and the court held damages may not redeem such loss, satisfying the second Giella condition.
Balance of convenience
Tilts in favour of the Applicant, who has been in possession all along
The court held the balance of convenience favours the party in continuous possession. The Respondent's request for an undertaking or Kshs. 1 million security was declined because the Respondent retains the opportunity at trial to establish grounds for general damages for loss of use of the land.
Non-joinder of co-registered proprietors
Not fatal; curable by amendment and does not alter the possession alleged
The Respondent argued he was wrongly sued alone since the title is registered in three names. The court held this omission does not change the possession alleged and can be cured by amendment, so it did not defeat the injunction application.
Legal principles established
#- Undenied allegations of occupation and threats of eviction demonstrate a prima facie case for interlocutory injunction
- Non-joinder of co-registered proprietors does not defeat a possession-based injunction application and is curable by amendment
Court orders
#- 1.Application dated 16th June 2026 allowed in terms of prayers 3, 4 and 5 of the motion
- 2.Temporary injunction restraining the Respondent from evicting the Applicant, demolishing structures, selling, transferring, alienating or interfering with the Applicant's possession of LR NO. BASSI/BOGETAORIO II/1615 pending hearing of the Originating Summons
- 3.Land Registrar, Kisii County to place a restriction/caveat/caution on the register of LR NO. BASSI/BOGETAORIO II/1615 pending outcome of the suit
- 4.O.C.S. Itumbe Police Station to enforce compliance and maintain peace during the subsistence of the interim orders
- 5.Costs of the application in the cause
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over the land dispute; application brought under Order 40 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Kibasi Magembe v Kennedy Omari Atina", Case Analysis (2026). ELC Case No. E007 of 2026 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5936/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.