Osogo & 4 others v Maseki & 6 others (6th and 7th Defendants Both Practicing Law in the Firm Name and Style of Bryant & Associates) (Environment and Land Case 1042 of 2013) [2025] KEELC 6398 (KLR)
The bottom line
#The court refused to hand back the land immediately, instead freezing everything at the registry until the ownership dispute is finally heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the 4th Defendant was entitled to restitution of the register under section 91 of the Civil Procedure Act following the setting aside of the judgment
The application was not merited insofar as it sought cancellation of the registration; the prerequisites for restitution were not established because there is no final outcome and ownership remains the very issue to be determined at the hearing
The judgment of 24th October 2019 was set aside by the ruling of 12th May 2022, but the suit has yet to proceed to hearing with a possibility of success by either party. Restitution would presuppose that the applicant is the proper owner, which the court cannot determine before trial. Rectification of the register consumes time and money and is best deferred until final determination.
What order should preserve the position of the parties pending the hearing
A status quo order maintaining the existing position at the lands registry, with no dealings on the suit property or register, pending hearing and determination of the case
The defendants feared interference with the title while the matter awaits hearing. The court held it incumbent to preserve the substratum of the suit and adopted the observation in the Baobab Beach Resort case that a status quo order merely leaves things as they stand pending hearing. This achieves preservation without the expense of rectifying the register before the issues are decided.
Legal principles established
#- Section 91 CPC requires a decree varied or reversed, an applicant entitled to restitution, and restoration to the position the party would have occupied but for the decree
- Restitution under section 91 is discretionary and must be weighed against the requirements of the section in the circumstances of each case
- Where a judgment has been set aside but the suit is yet to be heard, restitution reversing registration of title is premature; a status quo order preserving the substratum of the suit is the proper order
Court orders
#- 1.The status quo existing at the lands registry should be maintained pending the hearing and determination of the case
- 2.There should be no dealings, action on or transfer on the suit property and on the register pending the hearing and determination of the case
- 3.The parties were urged to prioritize the hearing of the matter on merit
- Jurisdiction invoked
- Section 91 of the Civil Procedure Act (restitution following variation or reversal of a decree)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osogo & 4 others v Maseki & 6 others (6th and 7th Defendants Both Practicing Law in the Firm Name and Style of Bryant & Associates) (Environment and Land Case 1042 of 2013) [2025] KEELC 6398 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6398/eng@2025-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.