Oliech & another (Suing as Co-Administrators of the Estate of Pius Awuoth Ogolla – Deceased)) v Akelo & 2 others; Family Bank Limited & another (Proposed Interested Parties) (Environment and Land Case E078 of 2025) [2026] KEELC 1788 (KLR)

2. b. An order staying and/or suspending the exercise of the statutory power of sale by the 1st Interested Party with respect to all that property known as Kisumu/Chiga/3807 pending the hearing and determination of the suit. c. Costs of the application be provided for. The grounds upon which the application was brought are that the suit land originated from land parcel No. Kisumu/Chiga/635 owned by one Pius Awuoth Ogola (deceased), who died in 1990. That the 1st Respondent, who illegally acquired the suit land, used the title thereof to obtain a loan facility from the 1st Interested Party. That the process of using the suit land as security to obtain the loan was fiawed and illegal and ought to be stopped by an order of the court. The application was supported by the averments in the Supporting Afidavit sworn by Anthony Ojenga Oliech on 11th December, 2025. 3. The application was opposed. The 1st Respondent filed a Preliminary Objection on the grounds that the suit was incompetent and an abuse of the court process, citing section 19, Order 5, Rules 1 and 22 Civil Procedure Act, Section 7, 9, and 26 of the Limitation of Actions Act, Section 13 of the Environment and Land Court Act, and Section 150 of the Land Act. 4. The 1st Interested Party filed a Replying Afidavit sworn by Sylvia Wambani on 19th December, 2025, narrating how the 1st Interested Party advanced to the 1st Defendant financial facilities on the security of the suit land. 5. The application was heard by way of written submissions. It was submitted on behalf of the applicant that the applicant has a prima facie case with a probability of success. That the deceased died intestate, leaving behind the land parcel known as Kisumu/Chiga/1635. That how the land was subsequently transferred to the 1st Defendant and later subdivided into Kisumu/Chiga/3454 and 3455 is a mystery that can only be unraveled by the 4th respondent. Counsel submitted further that if the injunctive orders are not granted, the estate of the deceased will sufier irreparable injury, which would not be compensated by an award of damages, as the property may easily change ownership. And that the balance of convenience tilts in favour of the applicant. 6. On behalf of the 1st Interested Party, it was submitted that since the administrators of the estate of Pius Awuoth Ogolla executed the sale agreement in 1985, they are estopped from alleging that the 1st Defendant illegally acquired the charged property. Counsel submitted further that the plaintifis have engaged in material non-disclosure by failing to disclose the agreement for sale dated 14th April 1985, together with the attendant facts. That the plaintifis have approached the court with unclean hands and are undeserving of the equitable remedy of injunction. The 1st Interested Party relied on the case of Fahrenheit Energy Limited vs Boit & another [2015] KEELC 8188 KLR to support the submission. 7. Counsel submitted that the estate of the deceased has no subsisting interest in the suit property. That the 1st Defendant had an indefeasible title to the charged property under section 26 (1) of the Land Registration Act, 2012. That the plaintifis do not fall under the ambit of section 103 of the Land Act, which provides for the people who may challenge the exercise of a Chargee’s power of sale. That the plaintifis failed to establish a prima facie case, having not demonstrated that the 1st Interested Party failed to conduct due diligence. That the plaintifis have also failed to demonstrate the nature of any irreparable harm they are likely to sufier should the court decline to grant the injunctive relief sought. That the balance of convenience tilts against granting the orders sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1788/eng@2026-03-19 2

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8. I have considered the application and the responses thereto. There is no doubt that at the time of the transaction between the 1st Defendant and the 1st Interested Party, the suit land was in the name of the 1st Defendant. Certificate of oficial search exhibited by both the Plaintifi and the 1st Interested Party confirms this. On the face of it, the land belonged to the 1st Defendant. Under section 26 of the Land Registration Act, a certificate of title is conclusive evidence of proprietorship, only subject to the exceptions where the certificate of title can be challenged. The 1st Interested Party narrated the steps it took in conducting due diligence before accepting the suit land as security for the financial facilities. 9. The 1st Respondent and the 1st Interested Party raise the plea of limitation against the claim by the plaintifi. According to the Applicant, the cause of action arose in the year 2010 when the 1st Respondent caused the original title No. Kisumu/Chiga/1635 to be transferred in his favour from the deceased, without Letters of Administration in respect of the estate of the deceased registered owner. The claim is for recovery of land, and the same is based on fraud allegedly committed by the 1st Defendant. Sections 4, 7, and 9 of the Limitation of Actions Act set the limitation period for bringing actions based on fraud and recovery of land. The notice of preliminary objection was filed after directions on the manner of disposal of the application had been taken; hence, no directions were taken on its disposal. I find that the Applicant has not demonstrated a prima facie case with a probability of success. The application is dismissed. Each party to bear its own costs of the application. Orders accordingly. RULING DATED AND SIGNED AT KISUMU, READ THIS 19TH DAY OF MARCH, 2026, VIRTUALLY THROUGH MICROSOFT TEAMS ONLINE APPLICATION. E. ASATI JUDGE In the presence of: Maureen: Court Assistant. Ndolo h/b for Omondi for the Applicant. Mshindi for the 1st Respondent. Edwin Otieno for the 1st Interested Party. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1788/eng@2026-03-19 3

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