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ELCPartially AllowedAppeal against ruling dated 28th January 2025 in Vihiga SPMC ELC CASE NO. E055 of 2024

Mudavadi v Nasibu Holdings Ltd (Environment and Land Appeal E002 of 2025) [2026] KEELC 126 (KLR)

Environment and Land Court
22 January 2026
3,806 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan appeal court threw out a land ruling made without reading the landowner's defence, but kept the land frozen until the case is heard.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Vihiga against a ruling dated 28th January 2025 by Hon. J. A. Agonda PM in Vihiga SPMC ELC Case No. E055 of 2024, a land dispute over North Maragoli/Bugina/1005. At the interlocutory stage the trial court granted the respondent (plaintiff) a temporary injunction, immediate possession through police assistance, and an inhibition, and dismissed the appellant's application to set aside the ex parte orders. The appellant appealed, contending the magistrate exercised discretion injudiciously by granting a mandatory injunction at the interlocutory stage without special circumstances and by ignoring the appellant's evidence of title. The respondent defended the ruling, arguing it had been in occupation for over 13 years before a violent ejection, and raised a preliminary point that leave to appeal was required because the ruling included an order of inhibition under section 68 of the Land Registration Act, which is not listed in Order 43 of the Civil Procedure Rules. The court, guided by Selle v Associated Motor Boat Company on the duty of a first appellate court, found that the trial court failed to consider the appellant's Replying Affidavit sworn by Nelson Chagenya, which demonstrated that the respondent's title had been cancelled by an order of 23rd November 2023 in Vihiga SPMC Succ Cause No. 399 of 2023, and that at the time of the application the appellant held both title and possession. The trial court also erred in summarily awarding possession of land whose ownership required trial evidence. The court allowed the appeal in part: the ruling of 28th January 2025 was set aside and the respondent's application dismissed, except the order of inhibition which was retained to preserve the register. The suit was ordered to proceed before a magistrate other than Hon. Agonda, and each party was ordered to bear its own costs of the appeal.

Questions the Court framed

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

  1. 1.Whether or not the trial court erred in allowing the respondent's application dated 23rd September 2024
  2. 2.Whether the appeal herein has merit
  3. 3.Costs of the appeal

Key legal issues

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01

Whether the trial court erred in granting the respondent a temporary injunction and possession of the suit land

Holding

Yes. The trial court misdirected itself by ignoring the appellant's Replying Affidavit, by finding the respondent had title when the respondent's title had been cancelled by an order in Vihiga SPMC Succ Cause No. 399 of 2023 dated 23rd November 2023, and by summarily awarding possession of land whose ownership was disputed and required evidence.

Reasoning

The trial court wrongly recorded that the defendant's advocate filed no Replying Affidavit when one was sworn by Nelson Chagenya on 14th October 2024. That affidavit showed the respondent's title had been revoked via the succession cause order, and that at the time of the application the appellant held title and possession. Had the trial court considered this, it might have decided differently. Fraud allegations were a matter for trial evidence, so possession should not have been awarded summarily at the interlocutory stage.

p. 7
02

Whether the order of inhibition granted by the trial court should stand

Holding

Yes. The inhibition was properly granted to preserve the records at the land registry, and the land should remain registered in the appellant's name pending hearing of the suit.

Reasoning

The court distinguished between the injunction and possession orders, which were set aside, and the inhibition order, which serves a preservation function consistent with the state of the register pending trial.

p. 7

Legal principles established

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  • On a first appeal, the court is obliged to re-analyse and evaluate the evidence afresh and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
  • A court considering an interlocutory application must take into account the respondent's replying affidavit; ignoring a filed response is a misdirection
  • An order of inhibition serves to preserve the status of the land registry records pending further orders or event and may properly be maintained pending determination of the suit

Court orders

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  1. 1.The ruling of the trial court dated 28th January 2025 is set aside and substituted with an order dismissing the application dated 23rd September 2024 together with all orders made thereunder save for the order of inhibition
  2. 2.The order of inhibition is retained, preserving the land as registered in the name of the appellant pending hearing of the suit
  3. 3.The suit to proceed to hearing before a different Judicial Officer other than Hon. Agonda who handled the application
  4. 4.Each party to bear own costs of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Vihiga Senior Principal Magistrate's Court (Environment and Land)
Vihiga SPMC ELC CASE NO. E055 of 2024
Jurisdiction invoked
First appellate jurisdiction over the ruling of the Senior Principal Magistrate's Court (ruling dated 28th January 2025 in Vihiga SPMC ELC Case No. E055 of 2024)

Relief refused

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Remission of the entire case file with all interlocutory orders set aside including the injunction restoring possession to the appellant

The court allowed the appeal only in part; the order of inhibition was preserved and the suit ordered to proceed before a different magistrate

p. 7

Costs of the appeal against the respondent

The court ordered each party to bear own costs

p. 8

Costs

Each party to bear own costs of the appeal.

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.

The ruling of the trial court dated 28th January 2025 is hereby set aside and substituted with an order dismissing the application dated 23rd September 2024 together with all orders made thereunder save for the order of inhibition.
p. 7Final orders - setting aside the trial court's ruling
The suit to proceed to hearing before a difierent Judicial Oficer other than Hon Agonda who handled the application.
p. 8Final orders - reassignment of the suit
Each party to bear own costs of the appeal.
p. 8Final orders - costs
This being a first appeal, this court is obligated to re-analyse the evidence/material placed before the trial court and draw its own conclusions.
p. 5Duty of a first appellate court
It is clear from the ruling that the trial court did not take into account the appellant's response to the application.
p. 6Trial court's failure to consider the replying affidavit
given that the purpose of an order of inhibition is to preserve the status of the records of the land at the registry pending further orders or event, the court finds that the same was necessary to preserve the land pending determination of the suit.
p. 7Purpose and retention of the order of inhibition

Issues in the judgment

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minor

The judgment's opening paragraph describes the matter as 'the appeal herein' and the parties as appellant/respondent, consistent with an appellate decision; this is correctly captured, but the introductory recital of the memorandum of appeal refers to 'Vihiga MCLE No. E055 of 2024' in one place and 'Vihiga SPMC ELC CASE NO. E055 of 2024' in another, an internal inconsistency in the suit number.

minor

Typographical errors throughout the judgment (e.g. 'difierent', 'oficer', 'Afidavit', 'plaintifi') apparently from OCR/formatting.

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, "Mudavadi v Nasibu Holdings Ltd (Environment and Land Appeal E002 of 2025) [2026] KEELC 126 (KLR)", Case Analysis (2026). Appeal against ruling dated 28th January 2025 in Vihiga SPMC ELC CASE NO. E055 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/126/eng@2026-01-22

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