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ELCDismissedNot stated in the judgment (Notice of Motion dated 15th August, 2024 in a constitutional petition)

Otiende (Suing on his behalf and as the Legal Represetative and Administrator of the Esttae of Manasseh Nyajeri Otiende - Deceased) & another v Land Registrar, Kakamega County & 3 others (Constitutional Petition E002 of 2024) [2025] KEELC 4612 (KLR)

Environment and Land Court
11 June 2025
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega dismissed landowners' bid to stop a sale, ruling the boundary dispute had already been decided and could not be revived as a constitutional claim.

What this practically means

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Executive summary

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The petitioners moved the court by Notice of Motion dated 15th August 2024 seeking a temporary injunction restraining the respondents from advertising, selling, alienating or interfering with six acres of Land Parcel No. Kisa/Doho/185, which they described as ancestral land allocated to their late father during the 1967 adjudication and registered in 1987. They complained that the respondents, acting on an award of the Khwisero Land Disputes Tribunal adopted in Kakamega CMCC Misc. Application No. 142 of 1998, had amended the area map and interfered with boundaries, reducing the suit property from 6 to 2.5 acres and enlarging parcel Kisa/Doho/184, contrary to a stay granted by the Provincial Land Appeals Tribunal in Case No. 6 of 2000, and they invoked Article 40 of the Constitution. The application was opposed and canvassed by written submissions. The court framed a single issue: whether the petitioners met the threshold for a temporary injunction under the Giella v Cassman Brown test as elaborated in Nguruman Limited v Jan Bonde Nielsen. The court held that the dispute was purely a boundary dispute previously determined by the tribunals and the High Court between the same parties, so section 7 of the Civil Procedure Act barred its retrial; that sections 18 and 19 of the Land Registration Act placed boundary matters outside the court's jurisdiction; and that invoking Article 40 did not transform the dispute into a constitutional question. The petitioners were found to have failed to establish a prima facie case. The application was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the petitioner has met the threshold for grant of orders of temporary injunction.

Key legal issues

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01

Whether the petitioners met the Giella v Cassman Brown threshold for a temporary injunction

Holding

They did not; no prima facie case with any real chance of success was demonstrated.

Reasoning

The dispute over the boundaries and acreages of parcels Kisa/Doho/184 and Kisa/Doho/185 had already been litigated before the Khwisero Land Disputes Tribunal, the Provincial Land Appeals Tribunal and the High Court. Raising the same complaint in a fresh constitutional petition was res judicata and did not disclose a prima facie case. Further, boundary determinations under sections 18 and 19 of the Land Registration Act fall outside the court's jurisdiction.

p. 4
02

Whether the court has jurisdiction over a boundary dispute re-packaged as a constitutional petition under Article 40

Holding

No; the dispute is purely a boundary dispute under sections 18 and 19 of the Land Registration Act, outside the court's jurisdiction.

Reasoning

Invoking Article 40 does not convert an ordinary boundary dispute into a constitutional question. Since previous proceedings on the same boundaries existed, the court had no jurisdiction to adjudicate the boundary dispute afresh, and any grievance with the prior decisions must be pursued through legal channels of appeal or enforcement.

p. 4

Legal principles established

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  • A court is barred from trying a suit or issue directly and substantially in issue in a former suit adjudicated by a competent court.
  • A boundary dispute does not become a constitutional question merely by invoking the right to property under Article 40.
  • Where the complaint is that a party contravenes decisions of a tribunal or another court, redress lies in the forum that made or is to enforce the decision, not a fresh suit.

Court orders

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  1. 1.The application dated 15th August 2024 is dismissed
  2. 2.Costs to the respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 40 of the Constitution invoked by petitioners; court's jurisdiction considered under Order 40 Rule 1 of the Civil Procedure Rules, sections 18 and 19 of the Land Registration Act and section 7 of the Civil Procedure Act

Relief refused

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Temporary injunction restraining respondents from advertising, offering for sale, disposing of, alienating, transferring or interfering with the petitioners' proprietary interests in six acres of Land Parcel No. Kisa/Doho/185

The petitioners failed to demonstrate a prima facie case; the dispute is a boundary dispute already determined in prior proceedings and falls under sections 18 and 19 of the Land Registration Act, outside the court's jurisdiction.

p. 4

Costs

Costs of the application awarded to the respondents

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.

Ultimately, I find and hold that the application dated 15th August 2024 lacks merit and the same is hereby dismissed with costs to the respondents.
p. 4Disposition - dismissal with costs
A mere invoking of Article 40 on the right to property by the petitioners does not transform this dispute to a constitutional question.
p. 4Constitutional petition cannot cloak a boundary dispute
there having been previous proceedings in regard to the boundaries of the suit property, This court has no jurisdiction to again adjudicate the boundary dispute between the parties.
p. 4Res judicata and jurisdiction over boundary disputes
An applicant for temporary injunction must demonstrate a prima facie case with chances of success; demonstrate that he or she stands to suffer irreparable injury that may not be compensated in damages and where the court is in doubt, it shall decide the application on a balance of convenience
p. 3Giella v Cassman Brown injunction test

Issues in the judgment

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minor

Only the 1st petitioner is named (Samwel Olewe Otiende); the 2nd petitioner and the 1st to 3rd respondents are referred to by role only and never named in the judgment.

minor

Inconsistent referencing of prior Kakamega High Court case number - the pleadings refer to 'Kakamega Civil Case No. 132 of 2023' while the list of documents refers to 'Kakamega High Court Case No. 132 of 2003'.

minor

The petitioners are described variously as 'petitioners' and 'applicants' and the 4th respondent appears to be the same person (Daniel Namatsi Okusimba) described as granted land by the Khwisero Tribunal, but his role relative to the 1st-3rd respondents is not explained.

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, "Otiende (Suing on his behalf and as the Legal Represetative and Administrator of the Esttae of Manasseh Nyajeri Otiende - Deceased) & another v Land Registrar, Kakamega County & 3 others (Constitutional Petition E002 of 2024) [2025] KEELC 4612 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 15th August, 2024 in a constitutional petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4612/eng@2025-06-11

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