Nyagowa v Olum & 2 others (Environment and Land Appeal E007 of 2026) [2026] KEELC 5362 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC APPEAL NO. E007 OF 2026** **AKOKO HILLARY NYAGOWAAPPELLANT** **VERSUS** **NAFTALI OTIENO OLUM1ST RESPONDENT** **COLLINS ODUOR DENGA2ND RESPONDENT** **COUNTY LAND REGISTRAR, KISUMU3RD RESPONDENT** ***(Being an appeal against the Ruling and Orders of Hon. M. Ochieng, Senior Principal Magistrate, delivered on 19th December 2025 in Maseno PM ELC Case No. E035 of 2024)*** **JUDGMENT** 1. The Appellant, **Akoko Hillary Nyagowa**, is dissatisfied with the Ruling and Orders of Hon. M. Ochieng, Senior Principal Magistrate, delivered on 19th December 2025 in Maseno PM ELC Case No. E035 of 2024, by which the trial court dismissed with costs his Notice of Motion dated 19th November 2024. By that Motion, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, the Appellant had sought a temporary injunction restraining the Respondents from advertising, selling, disposing of, or otherwise interfering with his asserted proprietary rights and physical occupation of the parcel of land known as **Kisumu/Korando/4790** (“the suit property”), pending the hearing and determination of the suit. 2. The appeal is interlocutory in character. An order refusing a temporary injunction made under Order 40 of the Civil Procedure Rules is appealable to this Court as of right by dint of Order 43 Rule 1(1) of the Civil Procedure Rules, and no issue was taken with the competence of the appeal. 3. The Appellant was the Plaintiff before the trial court. The 1st and 2nd Respondents were the 1st and 2nd Defendants respectively, while the 3rd Respondent, the County Land Registrar, Kisumu, was the 3rd Defendant. I shall refer to the parties as they appear in this appeal. **Background** 4. The suit property measures approximately 0.09 hectares. The certificate of official search, the copy of the title deed and the register annexed to the Appellant's supporting affidavit show that the parcel was first registered on 13th July 2010 in the names of **Naftali Otieno Olum** (the 1st Respondent) and **Joseph Njaga Olum**, with a title deed issued on 10th December 2014. The register, as exhibited, records the two proprietors by name but does not on its face disclose whether they held as joint proprietors or as proprietors in common, and no shares are indicated thereon. 5. Joseph Njaga Olum died on 29th May 2013, as evidenced by Certificate of Death No. 0030186 exhibited before the trial court. 6. By a written Agreement for Sale dated 4th January 2020, drawn by M/s Aoko, Ondieki & Co. Advocates, the 1st Respondent, executing for himself and expressly on behalf of his late brother, agreed to sell to the Appellant a portion measuring 0.04 hectares out of the suit property at a consideration of Kshs. 600,000. The Agreement is notable for its recitals and special conditions: it recited that Joseph Njaga Olum was deceased and that the process of succession had not been commenced but would be commenced within a stated period; it provided for payment of Kshs. 200,000 upon execution, a second instalment of Kshs. 200,000 upon the successful completion of succession, and the final instalment upon delivery of the original title deed and execution of transfer documents after succession; and, by special condition (a), the purchaser was to take possession of the parcel upon execution of the Agreement. 7. The Appellant's case before the trial court was that he paid a total of Kshs. 456,500 through bank transfers and M-Pesa transactions, leaving a balance of Kshs. 143,500 payable upon transfer; that he took actual possession pursuant to the Agreement, erected temporary structures and remains in occupation to date; and that he continues to hold the original title deed to the suit property, which was handed to him and was never surrendered. 8. It was the Appellant's further case that, to his surprise, the 1st Respondent thereafter quietly conducted succession in respect of the estate of the deceased co-proprietor, and proceeded to sell and transfer the *entire* parcel of 0.09 hectares to the 2nd Respondent with the facilitation of the 3rd Respondent, without the Appellant's knowledge, without surrender of the original title deed held by the Appellant, and in disregard of his prior purchase, part payment and occupation. The certificate of official search exhibited shows the 2nd Respondent registered as proprietor in 2023 with a new title deed issued. 9. The 1st Respondent, by his Replying Affidavit and Defence, admitted execution of the Agreement of 4th January 2020 but contended that he received only Kshs. 200,000; that the Appellant breached the Agreement by failing to pay the sums required to facilitate succession despite demand; that he was thereby constrained to sell the parcel to the 2nd Respondent; that the Appellant forcefully entered the suit property and erected temporary structures on or about 14th November 2024, shortly before filing suit; and that his efforts to refund the Kshs. 200,000 have been in vain. 10. The 2nd Respondent's position, by his Replying Affidavit, Defence and Counterclaim, was that he is an innocent purchaser for value without notice; that by an agreement dated 27th May 2023 he purchased the whole parcel from the 1st Respondent at Kshs. 1,100,000 which was paid in full; that the parcel was unoccupied at the time of his purchase; and, by his Counterclaim, he sought a permanent injunction against the Appellant, an order of eviction from the suit property, damages for waste and costs. The Appellant filed a Defence to the Counterclaim and a Further Affidavit exhibiting screenshots of telephone messages and summaries of M-Pesa transfers said to evidence both the additional payments and the Respondents' knowledge of his occupation as early as May 2023. 11. The Motion of 19th November 2024 proceeded by way of written submissions. Only the Appellant filed submissions; the record of the trial court shows that despite the grant of leave and extensions, no submissions were filed for the 1st and 2nd Respondents, and the Attorney General did not participate for the 3rd Respondent. **The impugned ruling** 12. In the Ruling delivered on 19th December 2025, the learned trial magistrate correctly identified the governing principles in **Giella v Cassman Brown & Co. Ltd [1973] EA 358** and the definition of a prima facie case in **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125.** The learned magistrate then reasoned that the suit property was, at the time of the Agreement of 4th January 2020, registered in the names of the 1st Respondent and his deceased brother; set out Section 45 of the Law of Succession Act, which prohibits any person, except under authority of law or a grant of representation, from taking possession of, disposing of, or otherwise intermeddling with any free property of a deceased person; and concluded as follows: *“In the present case, if the Applicant entered into a Sale Agreement for a portion of land which was registered in the name of a deceased person, then under section 45 of the Law of Succession Act, he would be guilty of a crime called intermeddling. Without getting into the merits or demerits of this case, I find that the Applicant has failed to prove prima facie case at this stage. There is therefore no need to belabour whether the Applicant has proved the second and third limbs…”* 13. On that sole ground, the Motion was dismissed with costs. The remaining limbs of the *Giella* test irreparable harm and the balance of convenience were not considered. **The Appeal and submissions** 14. Aggrieved, the Appellant preferred the present appeal by a Memorandum of Appeal dated 19th January 2026 raising seven grounds, which may fairly be condensed as follows: that the learned trial magistrate erred (i) in failing to consider and apply the doctrine of *jus accrescendi* (survivorship) applicable to a joint tenancy, and in consequently finding that the 1st Respondent lacked capacity to sell after the death of his co-owner; (ii) in holding the Sale Agreement null and void for want of letters of administration, thereby misinterpreting Section 91 of the Land Registration Act; (iii) in failing to find that the Appellant had established a prima facie case with a probability of success on the *Giella* principles; (iv) in failing to consider the Appellant's rights as a buyer in possession constituting an overriding or valid equitable interest binding on third parties; (v) in failing to consider the balance of convenience, which favoured preservation of the status quo; (vi) in failing to find that the 1st Respondent's initiation of succession over property held in joint tenancy and subsequent sale of the entire parcel suggested potentially fraudulent dealing warranting restraint; and (vii) in delivering a Ruling against the weight of the evidence and the applicable principles of land law and equity. 15. When the appeal came up for directions, it was ordered to be canvassed by way of written submissions. The Appellant filed written submissions dated 17th July 2026 through M/s Juliet Dima & Associates Advocates. No written submissions were filed on behalf of any of the Respondents by the time this Judgment was prepared. 16. Counsel for the Appellant submitted that the appeal turns on a single fundamental misdirection: the application of the Law of Succession Act to property said to be held in joint tenancy under the Land Registration Act. Counsel argued that upon the death of a joint tenant the deceased's interest is extinguished and vests automatically in the survivor by operation of Section 91 of the Land Registration Act, so that it does not form part of the deceased's estate; that there was accordingly no “free property of a deceased person” capable of being intermeddled with when the Agreement was executed; that the Appellant in any event acquired an equitable interest by virtue of the admitted agreement, part payment and possession, protected under the doctrines of constructive trust and proprietary estoppel as recognised in **Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR;** that these were substantial triable issues which the trial court impermissibly determined conclusively at the interlocutory stage; and that the three *Giella* conditions were all satisfied. The Court was urged to allow the appeal, set aside the Ruling, and substitute an order granting the injunction sought, together with an order for registration of a caution or lis pendens against the title, and costs. **Analysis and determination** 17. This being a first appeal, this Court is enjoined to re-evaluate the material that was before the trial court and to reach its own conclusions, while bearing in mind that it neither saw nor heard the deponents. But because the decision under challenge was an exercise of judicial discretion under Order 40, the threshold for appellate interference is that settled in **Mbogo & Another v Shah [1968] EA 93:** an appellate court will not interfere with the exercise of discretion unless it is satisfied that the trial court misdirected itself on the law, misapprehended the facts, took into account matters it ought not to have considered, failed to take into account matters it ought to have considered, or that the decision, albeit a discretionary one, is plainly wrong. 18. Three issues fall for determination: **(i) whether the learned trial magistrate erred in principle in finding that no prima facie case had been established;** **(ii) if so, whether upon a re-evaluation of the material the temporary injunction ought to have issued;** **(iii) what orders should follow, including as to costs.** **Issue (i): Whether the trial court erred in its determination of the prima facie limb** 19. The principles are not in doubt. Under *Giella v Cassman Brown*, an applicant for an interlocutory injunction must first establish a prima facie case with a probability of success; secondly, an injunction will not normally issue unless the applicant might otherwise suffer irreparable injury not adequately compensable in damages; and thirdly, if the court is in doubt, it will decide the application on the balance of convenience. In **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125,** the Court of Appeal defined a prima facie case as one in which, on the material presented, a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party so as to call for an explanation or rebuttal. In **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR,** the Court of Appeal cautioned that at this stage the standard is not proof on a balance of probabilities, still less proof to the hilt; the court is not to conduct a mini-trial, resolve conflicts on affidavit evidence, or make definitive findings on the merits of issues that must await trial. 20. Measured against these principles, the pathway by which the learned trial magistrate arrived at the conclusion that no prima facie case existed was, with respect, attended by three related errors of principle. 21. First, the conclusion rested entirely on an unexamined premise as to the nature of the co-ownership. Section 91 of the Land Registration Act, 2012 recognises two distinct forms of co-ownership: joint proprietorship, in which no proprietor is entitled to a separate share and upon the death of a joint proprietor the interest vests in the surviving proprietor or proprietors by survivorship; and proprietorship in common, in which each proprietor holds an undivided share which, upon death, devolves upon and forms part of that proprietor's estate. Which of the two obtained here is decisive of the very question the trial court answered: whether, at the date of the Agreement of 4th January 2020 some six and a half years after Joseph Njaga Olum's death in May 2013 there existed any “free property of a deceased person” within the meaning of Section 45 of the Law of Succession Act at all. If the registration was as joint proprietors, the deceased's interest would, on the Appellant's argument, have vested in the 1st Respondent by operation of law upon death, there would have been nothing to administer in respect of this parcel, and the intermeddling analysis would fall away entirely. If the registration was in common, the deceased's undivided share fell into his estate and materially different considerations would arise, both as to the vendor's capacity and as to the portion sold. 22. The exhibited register records two names without more. The instruments by which the proprietors were registered in 2010, which would ordinarily disclose the form of co-ownership, were not before the trial court. The question was therefore a contested question of mixed law and fact, incapable of resolution on the affidavits, and squarely one of the triable issues in the suit. Yet the impugned Ruling resolved it *sub silentio* by treating the deceased's interest as estate property requiring a grant without evidence, without argument on the point, and without saying so. That was a misdirection. 23. I would add that the material before the trial court was equivocal even on the parties' own conduct. The 1st Respondent himself treated the parcel as attracting succession: the Agreement he executed contemplated succession, and he in fact petitioned for and obtained a grant before transferring to the 2nd Respondent. The Appellant, for his part, now contends for survivorship. Nothing in this Judgment should be understood as resolving that contest either way; the point, for present purposes, is that it is a serious question to be tried, and its existence is inconsistent with a finding that the Appellant's case did not rise even to the prima facie threshold. 24. Secondly, even on the premise that succession was required, the trial court's treatment of Section 45 of the Law of Succession Act overlooked the structure of the Agreement itself. The Agreement did not purport to effect an immediate disposition of the deceased's interest. It expressly recited that succession had not been commenced and would be commenced; it deferred the second instalment until the successful completion of succession; and it deferred completion and transfer until after succession. Whether such a contract conditional in its completion upon the lawful administration of the estate, coupled with part payment and possession is void for intermeddling, or is a valid contract whose completion awaited the grant and which equity will protect through the doctrines of constructive trust and proprietary estoppel, is a weighty question of law and fact. The authorities relied upon by the Appellant, including **Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR** and the line of authority applying constructive trusts in favour of purchasers in possession who have paid part or all of the purchase price, demonstrate at the very least that the Appellant's claim was genuinely arguable. It also bears noting that the Court of Appeal in **Willy Kimutai Kitilit v Michael Kibet [2018] eKLR** held that the equitable doctrines of constructive trust and proprietary estoppel are applicable to registered land and are capable of constituting overriding interests as trusts within Section 28(b) of the Land Registration Act. Whether the Appellant will ultimately bring himself within these principles is a matter for trial; but a claim resting upon an admitted written agreement, admitted receipt of at least Kshs. 200,000, asserted further payments supported by annexures, possession and developments on the ground, cannot be dismissed at the threshold as raising no prima facie case. 25. Thirdly, and most fundamentally, the impugned finding amounted to a conclusive determination indeed a determination with a penal complexion of a substantive issue in the suit at the interlocutory stage, on affidavit evidence, and without trial. The finding that the Appellant “would be guilty of a crime called intermeddling” condemned the very transaction whose validity and consequences the plaint, the defences and the counterclaim had placed before the court for trial. That is precisely what *Nguruman* cautions against. An application under Order 40 is a preservatory proceeding; it is not the occasion to decide whether a contract is void, still less to attribute criminal culpability to a litigant. Having taken that course, the trial court also, in consequence, never weighed the second and third limbs of *Giella* a sequencing which is unobjectionable where the first limb has been correctly determined, but which here was vitiated by the errors already identified. 26. The cumulative effect is a misdirection in law within the meaning of *Mbogo v Shah*, entitling and indeed obliging this Court to interfere with the exercise of discretion. **Issue (ii): Whether, on re-evaluation, the injunction ought to issue** 27. On the first limb, and for the reasons already given, I am satisfied that the Appellant established a prima facie case with a probability of success in the *Mrao* sense. The Agreement of 4th January 2020 is admitted. Receipt of at least Kshs. 200,000 is admitted. The Appellant exhibited bank and M-Pesa records in support of the larger figure of Kshs. 456,500, which the 1st Respondent disputes a dispute for trial. The Appellant is on the ground: whatever the contest as to when he entered, the existence of his structures and occupation is common ground, and is indeed the premise of the 2nd Respondent's counterclaim for eviction and restoration. The 1st Respondent thereafter sold and transferred the whole parcel including the very portion earlier sold to the Appellant to the 2nd Respondent, while the Appellant continued to hold the original title deed. On that material, a right has apparently been infringed so as to call for explanation and rebuttal at trial. I emphasise, as I must, that nothing herein determines the merits: the 1st Respondent's plea of breach and the 2nd Respondent's plea that he is an innocent purchaser for value without notice are themselves weighty triable defences which remain fully open at the hearing. 28. On the second limb, land is by its nature unique, and the loss the Appellant apprehends is not the loss of money but the loss of the land itself together with his developments thereon. The 2nd Respondent's Counterclaim expressly seeks the Appellant's eviction, and the 2nd Respondent, as the now-registered proprietor, is in a position to deal further with the title. Were the parcel to be further alienated, charged or developed, or the Appellant evicted and his structures demolished in the pendency of the suit, the judgment ultimately rendered could well be rendered nugatory. Damages would not, on the material before me, be an adequate remedy for a purchaser in possession asserting an equitable entitlement to the land itself. 29. On the third limb, the balance of convenience firmly favours preservation of the status quo. An order restraining alienation and preserving the Appellant's occupation pending trial preserves the res for whichever party ultimately succeeds. It divests the 2nd Respondent of nothing: his registered title remains intact and his counterclaim proceeds to trial. Conversely, the refusal of any restraint would leave the subject matter of the suit exposed to dealings that could defeat the suit altogether. The lower risk of injustice lies in restraint. 30. The three conditions being satisfied, the temporary injunction ought to have issued, suitably tailored to preserve rather than to grant final relief. **Issue (iii): The appropriate orders and costs** 31. The Appellant additionally prayed for an order directing the 3rd Respondent to register a caution or lis pendens against the title. In my view, an injunction in the terms set out below, coupled with a direction that the order be served upon the Land Registrar, Kisumu, for noting against the register, sufficiently secures the subject matter. The Appellant remains at liberty to pursue any statutory protections available to him under the Land Registration Act, and I decline to grant that prayer as framed. 32. The suit was filed in November 2024 and stands at the pre-trial stage. Interlocutory skirmishes ought not to hold the parties' substantive dispute hostage. The fitting course is to direct the expeditious hearing and disposal of the suit and counterclaim on their merits. 33. As to costs, it is hereby directed that each party shall bear own costs of this Appeal. **Disposition** 34. In the end, and for the reasons set out above, I make the following orders: **I. The Appeal is hereby allowed.** **II. The Ruling and Orders of Hon. M. Ochieng, Senior Principal Magistrate, delivered on 19th December 2025 in Maseno PM ELC Case No. E035 of 2024 are set aside in their entirety.** **III. In substitution therefor, a temporary injunction is hereby issued restraining the Respondents, jointly and severally, whether by themselves, their agents, servants, employees, successors in title, assigns, personal representatives or any person claiming under their authority, from selling, advertising for sale, transferring, charging, leasing, subdividing, or in any other manner alienating or dealing with the parcel of land known as Kisumu/Korando/4790, and from evicting the Appellant from, demolishing his structures on, or otherwise interfering with his occupation of the portion measuring approximately 0.04 hectares thereof in his possession, pending the hearing and determination of Maseno PM ELC Case No. E035 of 2024.** **IV. For the avoidance of doubt, Order III above is preservatory only; it does not determine any issue in the suit or the counterclaim, and it does not bar the prosecution of the suit and counterclaim to their conclusion.** **V. The trial court is directed to fix and hear Maseno PM ELC Case No. E035 of 2024 together with the counterclaim on a priority basis. The lower court file shall be remitted forthwith.** **VI. Each party to bear own costs of this Appeal.** **DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 31ST DAY OF AUGUST 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:** **Ms. Atemi for the Appellant.** **Mr. Matete for the Respondents.** **Court Assistant: Joanne Omondi.**