Shitabule v Watako & another (Environment and Land Case E010 of 2025) [2026] KEELC 3241 (KLR) (14 May 2026) (Ruling)

Shitabule v Watako & another (Environment and Land Case E010 of 2025) [2026] KEELC 3241 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 3241 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Case E010 of 2025 A Nyukuri, J May 14, 2026 Between Bonface Salasya Shitabule Applicant and Vincent Mulondo Watako 1st Respondent Juma Shitabule Agwala 2nd Respondent Ruling Introduction 1.Before court is a notice of motion dated 12th March 2025 filed by the applicant seeking the following orders;a.Spentb.Spentc.That pending the hearing and determination of this suit there be an order restricting and /or inhibiting any registration, dealing with title number E/Wanga/Eluche/2266.d.Spente.That pending the hearing and determination of this suit there be an order of temporary injunction restraining the respondents from interfering with the applicant’s peaceful occupation, use stay and access to his one (1) acre of land out of land parcel No. E/Wanga/Eluche/2266f.That the OCS Shianda Police Station do ensure compliance of these orders.g.That the costs of this application be provided for. 2.The application is predicated on the supporting affidavit sworn by the applicant sworn on 12th March 2025. The applicant’s case is that he purchased one acre of land to be excised from parcel No. E/Wanga/Eluche/2266 in 2006 and took possession of the same. That subsequently, the 2nd respondent sold two acres from the same title to the 1st defendant. That the 1st defendant got himself as registered proprietor of the suit property. 3.The 2nd defendant supported the application. The 1st respondent opposed the application. He filed a preliminary objection dated 24th March 2025. He stated that this court lacked jurisdiction to entertain the application pursuant to provisions of section 7 of the Civil Procedure Act. Further that the suit was frivolous, misconceived and an abuse of the court process. 4.The 1st respondent also filed a replying affidavit dated 24th March 2025. He stated that a similar application was filed on 17th January 2024 and a ruling made in that regard on 16th July 2024. That a certificate of confirmation was made on 27th October 2005 in respect of the estate of the late Tom Omumali Shitabule. That a portion of 4 acres were awarded to one Mwanamisi Afubwa who held the land in trust for the 2nd respondent who was still a minor at the time of registration. That on 9th November 2021 the suit property was transmitted to the 2nd respondent. That he purchased the suit property from the 2nd respondent at a consideration of Kshs. 1, 500,000/= and proceeded to register the same in his name. That the sale agreement between the applicant and Mwanamisi Afubwa is void for want of capacity. That the applicant has not met the threshold for adverse possession. That the application is res judicata as a similar application was dismissed by the lower court. He attached application and ruling in Mumias court, certificate of confirmation of grant, identity card, application for land control board consent, land control board consent and green card. 5.The application was disposed by way of written submissions. On record are submissions filed by the applicant dated 11th June 2025 and those of the 1st respondent dated 24th March 2025; both of which the court has duly considered. Analysis and determination 6.The court has carefully considered the application, response thereto and the parties’ written submissions. The single issue that arises for this court’s determination is whether the applicant deserves orders of inhibition and temporary injunction pending hearing and determination of this suit. 7.An inhibition is an order prohibiting for the time being, the registration of dealings on a title and therefore, it is an order in the nature of an injunction. 8.Section 68 of the Land Registration Act provides for the power of the court to grant inhibition as follows;“The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.” 9.The power of this court to grant injunction is provided for in Order 40 Rule 1 of the Civil Procedure Rules as follows;“Cases in which temporary injunction may be granted [Order 40, rule 1]Where in any suit it is proved by affidavit or otherwise—(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 10.Principles for grant of temporary injunction are well settled. The applicant must demonstrate prima facie case, irreparable loss and show that the balance of convenience tilts in favour of granting an injunction. (See Giella v Cassman Brown [1973] EA 358) 11.In the instant matter, the fact that the applicant has been on the suit property since 2006 is not disputed by the 1st respondent. The 1st respondent’s argument is that Mwanamisi Afubwa had no capacity to transact with the applicant. From the pleadings filed by the 2nd respondent, the applicant’s right is conceded to and the 2nd respondent has made a counterclaim for the title of the suit property to be cancelled and redistributed for the applicant to get 1 acre, the 1st respondent 2 acres and the 2nd respondent one acre. 12.The plaintiff’s suit is anchored on adverse possession, hence at this stage, the applicant is obligated to demonstrate prima facie, continuous occupation of the suit property without the owner’s permission for 12 years. While the 1st respondent invoked the defence of res judicata, the pleadings before the trial court were not availed for the court to determine whether the suit is res judicata or not. The applicant’s occupation is not denied and therefore, at a prima facie level, I am convinced that the applicant has a triable case with chances of success. The applicant being currently in occupation, it is clear to me that he stands to suffer irreparable injury if the orders sought are not granted. Besides, the balance of convenience tilts in favour of granting the orders sought. Therefore, the applicant is entitled to the orders of inhibition and temporary injunction. 13.While the applicant has demonstrated that he deserves orders of inhibition and temporary injunction, I am not satisfied at this stage, the basis for involvement of the police in this matter. Court orders are to be complied with and the respondents are expected to comply with the orders made herein upon being made aware of the same. I therefore decline to grant orders sought in respect of the OCS Shianda Police Station. 14.In the premises, I am satisfied that the application dated 12th March 2025 is merited and the same is hereby allowed as follows;a.That an order of inhibition, inhibiting any registration and or dealings in respect of title number E/Wanga/Eluche/2266 is hereby granted pending the hearing and determination of this suit.b.That this Honourable court hereby grants an order of temporary injunction restraining the respondents from interfering with the applicant’s peaceful occupation, use, stay and access to one (1) acre of land out of land parcel No. E/Wanga/Eluche/2266 pending the hearing and determination of this suit.c.That the costs of this application are awarded to the applicant and shall be borne by the 1st respondent. 15.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 14TH DAY OF MAY 2026A. NYUKURIJUDGEIn the presence of;Mr. Idi for the applicantMs Obware for the 1st respondentMr. Shifwoka for the 2nd respondentCourt Assistant- Delphine