https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4622

Arasa v Director, Physical and Land Use Planning, Kisii County Government & 2 others (Environment and Land Case E032 of 2025) [2026] KEELC 4622 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4622 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Environment and Land Case E032 of 2025 AA Omollo, J July 16, 2026 Between Pauline Moraa Arasa Plaintiff and Director, Physical and Land Use Planning, Kisii County Government 1st Defendant County Executive Committee Member, Lands, Housing, Physical Planning And Urban Development, Kisii County Government 2nd Defendant Kisii County Government 3rd Defendant Ruling 1.The Plaintiff/Applicant has moved the Court through a Notice of Motion dated October 31, 2025 which is based on Sections 1A, 1B, & 3A of the Civil Procedure Act, Cap 21, Order 40 Rules 1,2, & 3 and Order 51 Rule 1 of the Civil Procedure Rules, and Section 58(6) of the Physical and Land Use Planning Act, Cap. 303. 2.In the Motion, the Plaintiff/Applicant is seeking orders:a.Spent;b.Spent;c.THAT pending the hearing and determination of this suit, the Honourable Court be pleased to issue a temporary injunction restraining the Defendants/ Respondents by themselves, their agents, servants and/or anyone claiming under them from entering, trespassing onto, occupying, restricting the Applicant’s use, destroying the fence, interfering with and/or in any manner dealing with the Plaintiff’s parcel of land known as L.R. No. Kisii Municipality/Block III/357; andd.THAT costs of the application be provided for. 3.The grounds advanced by the Plaintiff/Applicant in support of her application are that she is the registered proprietor of all that parcel of land known as L.R. No. Kisii Municipality/Block III/357 (hereinafter the “Suit Land”). 4.The Plaintiff/Applicant further states that her late husband, Sospeter Nyagwansa Gwaro Arasa, purchased the Suit Land from the original allotee, and through a letter dated May 24, 1995, the original allotee notified the Commissioner of Lands of the sale while also requesting that the Certificate of Lease over the land be issued in the purchaser’s name. 5.The Plaintiff/Applicant proceeds further that her late husband was registered proprietor of the Suit Land from June 15, 1995 and continued as such until after his demise when the Suit Land was transferred to the Plaintiff/Applicant in 2019. 6.The Plaintiff/Applicant recounts that in November 2022, she applied to the 3rd Defendant/Respondent for approval to develop the Suit Land but she has never heard from the 3rd Defendant/Respondent in regard to this development approval application. 7.To secure the Suit Land from third parties in anticipation of future development, the Plaintiff/Applicant fenced the land with concrete poles and wire. However, on or about September 30, 2025, the Defendants/Respondents and their agents entered the Suit Land and destroyed the fence thereon erected. 8.The 1st Defendant/Respondent opposed the application by way of a Replying Affidavit sworn on October 22, 2025 by Patrick Achoki, Director- Physical Planning at Kisii County Government. 9.In his Replying Affidavit, Patrick Achoki swears that he is not aware of and did not send any agents, servants, or workmen to enter the Suit Land and to destroy the fence. 10.In response to the Plaintiff/Applicant’s assertion that her development approval application has never been acted upon, Patrick Achoki contends that the application is pending provision of approved documents and particulars from the Plaintiff/Applicant. 11.He further reiterates that no development on any land should commence within Kisii County without a development permit from the relevant authority. 12.Finally, Patrick Achoki asserts that photographs of the demolished fence, as attached to the Affidavit of Pauline Moraa Arasa, are inadmissible in evidence for lack of an accompanying certificate of electronic evidence as required by the Evidence Act, Cap. 80. 13.In her further affidavit sworn on November 07, 2025, the Applicantreiterates that in making the application for development permission, she completed the prescribed forms and paid the prescribed fees on November 30, 2022, yet, she has never heard from the 1st Defendant/Respondent with an approval, rejection, or request for further particulars relating to her application. 14.With regards to the 1st Defendant/Respondent’s assertion that the photographs of the damaged fence are inadmissible in evidence, the Plaintiff/Applicant responds that there is no set form of a certificate of electronic evidence. As such, the certificate may take any form including averments in the Affidavit of the person producing the electronic evidence. 15.Additionally, the Plaintiff/Applicant notes that the 1st Defendant/Respondent does not contend the authenticity of the said photographs, only that they are not accompanied by a certificate of electronic evidence. 16.Hearing in the matter proceeded by way of written submissions. The Plaintiff/Applicant through her Advocates on record filed her written submissions dated October 21, 2025. 17.The Plaintiff/Applicant makes reference to Order 40 Rule 1 of the Civil Procedure Rules, 2010 that provides instances when a Court may grant a temporary injunction. 18.The Plaintiff/Applicant submits that within the three-tier test for grant of temporary injunctions established by the Court in Giella v Cassman Brown & Co. LTD. [1973] E.A. 358, she has a prima facie case with a probability of success because she is the registered Lessee of the Suit Land holding a Certificate of Title that constitutes prima facie evidence of absolute proprietorship to the Suit Land. 19.Secondly, the Plaintiff/Applicant argues that her ownership of the Suit Land is at risk of being permanently undermined through interference and potential dispossession. She further argues that the Suit Land is unique, having both economic and sentimental value, thus, any potential loss cannot be quantified or reparated monetarily. 20.Finally, on the third limb of the test- balance of convenience- the Plaintiff/Applicant refers to the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR where it was held that the Applicant for an injunction should demonstrate that they stand to suffer more inconvenience than the Respondents should the orders sought fail to be granted. The Plaintiff/Applicant submits that her application meets the requirements of this limb because she is the registered proprietor of the Suit Land. 21.On behalf of the Defendants/Respondents, the County Attorney, Kisii County Government filed written submissions dated April 17, 2026. They set out the background facts where at paragraph 6 they submit that vide a letter dated 18th March, 2026 they explained to the Applicant that the suit land was planned and designated as recreational. That this letter requested the Applicant to provide a PDP which replanned it from recreational to commercial. 22.The Defendants/Respondents argue that the application does not meet the legal threshold for the grant of a conservatory order. This is even though the Plaintiff/Applicant’s motion does not seek a conservatory order, but a temporary injunction against the Defendants/Respondents. 23.The Defendants/Respondents also submit that the Plaintiff/Applicant has not placed any material before the Court to prove that the fence was demolished by the Respondents. Issues For Determination 24.The following are the issues for determination in this application:a.Whether a temporary injunction should issue against the Defendants/Respondents restraining them from entering, trespassing onto, occupying, restricting the Applicant’s use, destroying the fence, interfering with, and/or in any manner dealing with the Suit Land; andb.Who is to bear the costs of this application? Analysis 25.The Plaintiff/Applicant has stated that she is the registered proprietor of the Suit Land. However, the Defendants/Respondents, through their submissions, are challenging the Plaintiff/Applicant's title, arguing that the suit plot was planned for recreational facilities. The Respondents, in the replying affidavit, did not annex or make mention of the letter dated 18/3/2026 but referred to it in the submissions. Although the law does not permit annexing evidence to submissions, as the Respondents have done, the matter is still at an interlocutory stage. 26.The Plaintiff/Applicant’s motion is premised on Order 40 Rule 1 of the Civil Procedure Rules 2010 which reads as follows:“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; orb.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, 27.The three hurdles are that the Plaintiff/Applicant must:a.Establish a prima facie case;b.Demonstrate the irreparable harm or injury that she will suffer if a temporary inunction is not granted; andc.If the Court has doubts as to whether any injury occasioned upon the applicant may be adequately compensated through damages, demonstrate that the balance of convenience in the matter tilts in her favour. 28.In Mrao Limited V. First American Bank of Kenya Limited & 2 Others [2003] KLR 125 the Court of Appeal held thus:“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case”. 29.The Plaintiff/Applicant stated that on September 30, 2025, the Defendants/Respondents entered the Suit Land and destroyed the fence thereon. She annexed photos of the fence before and after destruction. The admissibility of the said photos is contested by the Defendants/Respondents on account of lack of an accompanying certificate of electronic evidence. 30.Nonetheless, at this interlocutory stage, all that the Plaintiff/Applicant is required to do is to establish a prima facie case. In addition, a Court is not required to pronounce on the veracity of the evidence, the Plaintiff’s claim, or the Defendant’s defence at this stage. It is my considered view that the Applicant has demonstrated a prima facie case based on evidence of interference with her quiet possession (though denied) and the Respondents' challenge to her title. 31.Under the heading of irreparable loss, the Plaintiff/Applicant argues that her ownership of the Suit Land is at risk of being permanently undermined through interference and possible loss of possession. She extends her argument that the land is unique, carrying both economic and sentimental value that cannot be quantified or restored through monetary compensation. 32.In answering the balance of convenience, this court finds that the interest of justice requires the property be preserved pending determination of the interests of both parties. This means that as I grant the Applicant orders of temporary injunction restraining the Respondents from interfering with the suit property, she also must not part with possession and/or dispose of it. 33.For the foregoing reasons, the Plaintiff/Applicants application dated 3rd October, 2025 is allowed in terms of prayer (c) by issuing orders of temporary injunction restraining the Defendants/ Respondents by themselves, their agents, servants and/or anyone claiming under them from entering, trespassing onto, occupying, interfering with and/or in any manner dealing with the Plaintiff’s parcel of land known as L.R. No. Kisii Municipality/Block III/357. Costs in the cause. RULING DATED, SIGNED AND DELIVERED AT KISII THIS 16TH DAY OF JULY, 2026.A. OMOLLOJUDGE