Saina & another v Saina & another (Environment & Land Case E036 of 2022) [2025] KEELC 4475 (KLR)
The bottom line
#A Kenyan court protected disputed estate land from registration but refused to let heirs cultivate it yet, since they couldn't prove which exact parcel they were owed.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the 1st applicant as administratrix
The 1st applicant, as legal representative of the estate which included the suit land, has locus standi to file the suit challenging dealings over the estate land
The estate of a deceased person vests in the legal representative. The amended certificate of confirmation of grant dated 27/6/2011 vested LR No. 2217/3 in the 1st applicant and has not been set aside or revoked. Her rights to challenge any dealings, title, use and occupation of estate land are properly before the ELC, so she cannot be said to lack capacity.
Jurisdiction as between the ELC and the High Court succession cause
The dispute over the sale agreement and third-party claims to the land falls within the ELC's jurisdiction under Article 162(2), not the probate court
Citing Re Estate & Alice Mumbua Mutua, the court reasoned that a dispute between buyer and seller of land concerns title and falls squarely under Article 162(2), ousting the High Court's jurisdiction under Article 165(5). Claims by and against third parties who are not survivors or beneficiaries are for resolution outside the probate framework, in a civil court.
Prima facie case
A prima facie case was established by the applicants
The applicants asserted an unmistakable right as legal representative and beneficiary to the suit land, invaded by the 2nd respondent, a third party to the estate. Material was laid before the court and the sale agreement giving rise to the 2nd respondent's claimed right did not comply with Section 3(3) of the Law of Contract Act and Section 38 of the Land Act.
Irreparable damage, balance of convenience and mandatory injunction
Although a prima facie case existed, the applicants failed to demonstrate irreparable loss, the balance of convenience, or special circumstances justifying temporary cultivation or mandatory orders
Following Nguruman and Mrao, speculative injury is insufficient; injunction is issued to prevent grave, actual and demonstrable injury not compensable in damages. The applicants did not specify out of which resultant titles the 30 acres lay, orders could not issue in vain, and there was non-disclosure on both sides.
Legal principles established
#- Property belonging to a deceased person's estate can only be dealt with through the legal representative; dealings without the legal representative's involvement are invalid
- Disputes between an estate and third parties over land fall within the jurisdiction of the Environment and Land Court under Article 162(2), not the probate court
- A temporary mandatory injunction requires special or exceptional circumstances and the clearest of cases
- Court orders cannot issue in vain; a party must be specific as to what the court should grant
Court orders
#- 1.An order for maintenance of status quo inhibiting the Land Registrar from registering any dealings over the register for LR No. Chepsiro/Kibuswa Block 5/4-97, the resultant titles to the conversion of former LR No. 2217/3
- 2.The application otherwise stands dismissed with no order as to costs
- Jurisdiction invoked
- Articles 162(2)(b) and 165 of the Constitution; Sections 68 of the Land Registration Act, 18(c) Environment and Land Court Act and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saina & another v Saina & another (Environment & Land Case E036 of 2022) [2025] KEELC 4475 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 28/1/2025 in a suit concerning Title No. Kitale Municipality No. 2217/3). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4475/eng@2025-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.