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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioner has met the threshold for grant of orders of temporary injunction.
Key legal issues
#Whether the petitioners met the Giella v Cassman Brown threshold for a temporary injunction
They did not; no prima facie case with any real chance of success was demonstrated.
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.
Whether the court has jurisdiction over a boundary dispute re-packaged as a constitutional petition under Article 40
No; the dispute is purely a boundary dispute under sections 18 and 19 of the Land Registration Act, outside the court's jurisdiction.
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.
Legal principles established
#- 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
#- 1.The application dated 15th August 2024 is dismissed
- 2.Costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
Costs
Costs of the application awarded to the respondents
Quotable passages
#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.
A mere invoking of Article 40 on the right to property by the petitioners does not transform this dispute to a constitutional question.
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.
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
Issues in the judgment
#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.
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'.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.