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ELCAllowedELC Appeal from ELC No. E053 of 2024 (Memorandum of Appeal dated 16th December 2024)· [2025] KEELC 4825 (KLR)

Okun v Otwal (Environment and Land Appeal E104 of 2024) [2025] KEELC 4825 (KLR)

Environment and Land Court
26 June 2025
11,678 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~47 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu set aside an injunction won through incomplete disclosure, holding that a title deed alone does not settle disputed land ownership in Kenya.

What this practically means

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Executive summary

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The Respondent, registered owner of Kisumu/Korando/3976 since April 2020 following purchases from Beatrice Achieng Osulah (administrator and beneficiary of the estate of the first registered owner, Joash Osula Gwako), sued the Appellant at Winam PMCC seeking her eviction, an injunction and damages for trespass. Simultaneously he obtained ex parte orders on 7th November 2024 restraining the Appellant from burying her deceased daughter on the suit property. The Appellant, who had lived on the land since 1980 with her deceased husband and whose relatives including her husband and parents-in-law were buried there, applied to set aside the ex parte orders, claiming the property was ancestral/family land held in trust, or alternatively that she had acquired it by adverse possession, creating an overriding interest. On 6th December 2024 the lower court allowed the Respondent's injunction application and dismissed the Appellant's setting-aside application without considering it. Allowing the appeal, the Environment and Land Court held that the lower court misdirected itself by treating the certificate of title alone as establishing a prima facie case; where root of title is challenged, the proprietor must prove legality of acquisition, and the court must consider the defendant's challenge, including claims of customary trust and overriding interests. The Respondent also failed to demonstrate irreparable harm, the burial issue not being pleaded in the plaint. Further, the ex parte orders were obtained through concealment of the Appellant's possession, breaching the duty of full and frank disclosure. The court set aside the lower court's ruling, dismissed the Respondent's application and allowed the Appellant's application, awarding the Appellant costs of the appeal with lower court application costs in the cause.

Key legal issues

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01

Whether the Respondent established a prima facie case with a probability of success for the grant of a temporary injunction

Holding

The lower court misdirected itself by treating the Respondent's certificate of title as sufficient proof of a prima facie case without considering the Appellant's challenge based on trust, long occupation and overriding interest.

Reasoning

The court relied on Munyu Maina v Hiram Gathiha Maina to hold that where a registered proprietor's root of title is under challenge, the instrument of title alone is insufficient. The Appellant had raised a valid challenge claiming the first registered owner held the land in trust for her family and that she had occupied it for over 40 years. The lower court failed to weigh the Respondent's case against the Appellant's response, thus exercising its discretion wrongly. The contradictory and shifting accounts by the Respondent of how he acquired the property further undermined the prima facie case.

p. 13
02

Whether the Respondent would suffer irreparable harm if the injunction was not granted

Holding

The Respondent did not demonstrate irreparable harm; the claim of psychological effects from potential exhumation was unsupported by evidence and not pleaded in the plaint.

Reasoning

It was common ground that the Respondent did not live on the suit property, and there was unchallenged evidence that the property already had several graves. No affidavit or other evidence showed that the Respondent or his family would suffer serious psychological effects if exhumation became necessary. The death and burial of the Appellant's daughter were not pleaded in the plaint and thus were not the subject of the suit, so the suit could not be rendered nugatory by the burial.

p. 16
03

Whether the ex parte injunction was properly obtained and whether the Appellant's application to set it aside should have succeeded

Holding

The ex parte orders were obtained through misrepresentation and concealment of material facts and should have been set aside; the lower court erred in dismissing the Appellant's application without considering it on merit.

Reasoning

The Respondent concealed that the Appellant was in possession when he purchased the property, misleading the court into believing she had forcibly entered after purchase and fencing. Relying on Bahadurali Ebrahim Shamji v Al Noor Jamal and Challis v Attorney General, the court held that a party guilty of material non-disclosure cannot benefit from the court's orders. An application alleging abuse of the court's ex parte process concerns the fair administration of justice and must be prioritised and determined on its merits.

p. 17

Legal principles established

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  • When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of the acquisition of title.
  • To determine whether a plaintiff has established a prima facie case in a dispute over ownership of land, the court must consider and express an opinion on the challenge mounted by the defendant against the plaintiff's title.
  • An applicant for ex parte relief is under a duty to make full and fair disclosure of all material facts, failing which the court will set aside any action taken on the faith of the imperfect statement.
  • An application to set aside ex parte orders on grounds of misrepresentation and concealment of material facts should be considered first and on its merits before the substantive application is determined.

Court orders

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  1. 1.The ruling and orders made by the lower court on 6th December 2024 allowing the Respondent's application dated 7th November 2024 and dismissing the Appellant's application dated 12th November 2024 are set aside and substituted with an order dismissing the Respondent's application dated 7th November 2024 and allowing the Appellant's application dated 12th November 2024 in terms of prayer 3 thereof
  2. 2.The Appellant shall have the costs of the appeal, while the costs of the two applications in the lower court shall be in the cause in the lower court
On appeal from
Principal Magistrate's Court at Winam (ELC No. E053 of 2024)
ELC No. E053 of 2024
Jurisdiction invoked
First appellate jurisdiction over the Principal Magistrate's Court (Environment and Land Court appeal from Winam PMCC ELC No. E053 of 2024)

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, "Okun v Otwal (Environment and Land Appeal E104 of 2024) [2025] KEELC 4825 (KLR)", Case Analysis (2025). ELC Appeal from ELC No. E053 of 2024 (Memorandum of Appeal dated 16th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4825/eng@2025-06-26

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