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ELCDismissedNot stated in extract (Kakamega Environment and Land Court, Notice of Motion dated 15th March 2024)

Shapaya v Lukhumwa (Administrator of the Estate of Teresina Etambo Lukhumwa) (Environment and Land Case E036 of 2025) [2026] KEELC 295 (KLR)

Environment and Land Court
28 January 2026
1,254 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kakamega Environment and Land Court dismissed a land buyer's bid to block dealings on parcel Isukha/Shirere/535 because he could not prove actual possession for 12 years.

What this practically means

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Executive summary

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The applicant moved the court by Notice of Motion dated 15th March 2024 seeking an injunction restraining the respondent from interfering with his use, occupation and developments on a 0.218 Ha portion of parcel Isukha/Shirere/535, and an order prohibiting any transactions on that portion, pending the hearing and determination of the suit. The applicant's case was that he bought the portion from Teresina Etambo Lukhumwa, took possession, but the vendor died before transfer; the respondent, having conducted succession for the deceased, was allegedly in the process of transferring the property to a third party. The respondent opposed, asserting the application was an abuse of process and that the applicant's allegations were unsubstantiated. The court framed two issues: whether the applicant deserved orders of inhibition and whether he met the conditions for a temporary injunction. It noted that Section 68 of the Land Registration Act empowers the court to grant inhibition, an order in the nature of a temporary injunction governed by the Giella v Cassman Brown conditions. Applying the adverse possession doctrine underlying the claim, the court found the applicant had not shown when his occupation began, its exclusive or hostile character, or evidence of occupation, and had not produced the register to establish the respondent's proprietorship over the requisite 12 years. The prima facie case failed, rendering the other Giella limbs moot. The application was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the applicant deserves orders of inhibition, and
  2. 2.Whether the applicant has met the conditions for grant of temporary injunction pending hearing and determination of this suit.

Key legal issues

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01

Whether the applicant established a prima facie case with chances of success for a temporary injunction

Holding

No prima facie case demonstrated

Reasoning

The applicant, who claimed rights under adverse possession, failed to state when his occupation began, the manner or exclusivity of his possession, or provide evidence of occupation; sale agreements and a succession court order are not proof of occupation. He also did not provide a copy of the register to show the respondent was the registered proprietor for the entire 12-year period. Without these, the claim was not arguable.

p. 3
02

Whether orders of inhibition should issue against the suit property

Holding

Inhibition refused

Reasoning

An inhibition under Section 68 of the Land Registration Act is an order in the nature of a temporary injunction. Having failed to meet the Giella v Cassman Brown conditions, particularly the prima facie case threshold, the applicant did not deserve the orders sought.

p. 3

Legal principles established

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  • An order of inhibition restrains registration or dealings on a title of land pending an event or further order, and is in the nature of a temporary injunction
  • A claim founded on adverse possession requires exclusive, hostile, open and continuous possession without permission of the true owner for the statutory period of 12 years
  • Once no prima facie case is established, the court need not consider irreparable loss and balance of convenience

Court orders

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  1. 1.The application dated 15th March 2024 is dismissed
  2. 2.Costs of the application to the respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 68 of the Land Registration Act and Order 40 Rule 1 of the Civil Procedure Rules

Relief refused

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Order of injunction restraining the respondent from interfering with the applicant's use, occupation and developments on the 0.218 Ha portion of Isukha/Shirere/535

Applicant failed to demonstrate a prima facie case with chances of success

p. 3

Order of prohibition against any transaction on the 0.218 Ha portion of Isukha/Shirere/535

Inhibition/temporary injunction not merited as no prima facie case was established

p. 3

Costs

The application is dismissed with costs (to the respondent)

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.

Therefore, the application dated 15th March 2024 lacks merit and the same is hereby dismissed with costs.
p. 3Disposition - dismissal of the motion
I find and hold that the applicants has failed to demonstrate a prima facie case with chances of success.
p. 3Failure of prima facie case
As no prima facie case has been established, the questions of irreparable injury and balance of convenience are now moot and inconsequential and therefore the court will not interrogate them.
p. 3Sequential application of the Giella tests
A claim for land based on the doctrine of adverse possession is anchored on exclusive, hostile, open and possession of the disputed land without permission from the true owner thereof, for a statutory period of 12 years.
p. 3Elements of adverse possession

Issues in the judgment

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minor

The applicant's affidavit dates are internally inconsistent - the ruling refers to a status quo order of 7th March 2024 pending a ruling on an application dated 14th June 2024, a later date

minor

The related succession cause is referred to inconsistently as Kakamega Succession Cause No. 914 of 2011 and Kakamega HC Succession Cause No. 914 of 2011

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, "Shapaya v Lukhumwa (Administrator of the Estate of Teresina Etambo Lukhumwa) (Environment and Land Case E036 of 2025) [2026] KEELC 295 (KLR)", Case Analysis (2026). Not stated in extract (Kakamega Environment and Land Court, Notice of Motion dated 15th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/295/eng@2026-01-28

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