https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3525

Omaido v Mungau & another (Environment and Land Case E014 of 2026) [2026] KEELC 3525 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3525 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Case E014 of 2026 CK Nzili, J June 10, 2026 Between Elfinias Jackson Omaido Plaintiff and Benson Osundwa Mungau 1st Defendant Ezekiel Epale 2nd Defendant Ruling 1.A party seeking temporary orders of tempoary injunction pending hearing and dtermination of a suit must meet the ingredients set under Giella vs Cassman Brown & Co. Ltd [1973] EA 358, namely, establish a prima facie case with a probability of success at the hearing, demonstrate that in the absence of an injunction, there will be irreparable loss or damage, and lastly, that the balance of convenience tilts in favour of granting the injunction. 2.A prima facie case is one where, looking at the material before the court, a right exists that has been infringed to call for a rebuttal from the opposite side, as was held in Mrao Ltd vs First American Bank of (K) Ltd & Others [2003] KECA 174 eKLR. 3.Irreparable damage was defined in Nguruman Ltd vs Jan Bonde Nielsen & Others [2003] eKLR, and in Samuel Kariuki Njenga vs Jennifer Ngendo Waweru [2020] eKLR, as one that cannot adequately be remedied by way of damages in the absence of an injunction. 4.Such loss or damage must be grave, actual, substantial, and demonstrable. Courts have described irreparable loss as one that cannot be measured with accuracy in monetary terms. 5.Balance of convenience, on the other hand, as held in Pius K. Kogo vs Frank Kimeli Tenai [2018] eKLR, is the inconvenience caused to the plaintiff in the absence of an injunction being greater than that which would be caused if the defendant were granted an injunction and the suit ultimately dismissed. 6.What is before the court is the plaintiff’s application dated 27/2/2026, which is supported by an affidavit of a legal attorney of Elfinias Jackson Omaido, one Ruth Niva Ongachi Solomon. 7.It seeks:1.…spent.2.Pending the hearing and determination of this application interpartes, this honourable court be pleased to issue a temporary injunction restraining the defendant/respondent, whether by himself, his servants, agents, employees, or any person claiming under him, from ploughing, planting, cultivating, entering upon, remaining on, or in any manner whatsoever interfering with Land Reference No. 8699/12 (Amagoro Farm).3.Pending the hearing and determination of this suit, this honourable court be pleased to issue a temporary injunction restraining the defendant/respondent, whether by himself, his servants, agents, employees, or any person claiming under him, from ploughing, planting, cultivating, entering upon, remaining on, or in any manner whatsoever interfering with Land Reference No. 8699/12 (Amagoro Farm).4.The status quo obtaining on the suit property is to be maintained pending the hearing and determination of this application and the suit.5.Pending the hearing and determination of this application interpartes, this honourable court be pleased to issue a temporary injunction restraining the defendant/respondent, whether by himself, his servants, agents, employees, or any person claiming under him, from ploughing, planting, cultivating, entering upon, remaining on, or in any manner whatsoever interfering with Land Reference No. 8699/12 (Amagoro Farm).6.The Officer Commanding Station (OCS) of Sirende Police Station does assist in the enforcement of the orders issued herein.(7)Costs of this application be provided for. 8.Briefly, Ruth Niva Ongachi Solomon deposes that she holds a Power of Attorney dated 27/8/2025 registered as IP/A79004/1 in favour of the plaintiff. The same is attached as annexure RNOS-(1). The plaintiff is said to be the registered owner of LR No. 8699/12 and 107, otherwise known as Amagoro Farm, as per the certificate of titles marked RNOS-2(A) and 2(B). 9.It is deposed that in 2025, the plaintiff commenced the process of evicting the defendants and other squatters on the suit properties pursuant to a court order in Kitale ELC No. 22 of 2015, a copy of the judgment attached as RNOS-(3), whereby due to intervention of third parties and on humanitarian grounds, she agreed to allocate 51 acres out of LR No. 8699/107 to the 1st and 2nd defendants. 10.It is deposed that the two defendants were given 90 days to relocate to the designated portion as per a resettlement agreement executed on 29/12/2025, attached as RNOS-(4), and whose terms prohibited the defendants in the meantime from planning, cultivating, or otherwise utilising any portion of LR No. 8699/12, but only to remain in occupation. 11.The plaintiff deposes that despite such a clause, the defendants have encroached onto and started tilling or continued cultivating a larger portion of the land, thereby interfering with the plaintiff’s intended use of the property as per the demand letter and responses dated 17/1/2026 and 22/1/2026, attached as RMOS-(5) and (6). 12.The plaintiff deposes that such acts amount to trespass, contravene the resettlement agreement, and amount to contesting ownership of the land, which issue was long settled earlier. 13.The application is opposed through a replying affidavit of Benson Osundwa Mungau, sworn on 16/3/2026, terming the application as overtaken by events, or seeking orders that cannot issue for he has resided on the land for over 50 years, which is like his home, has extensively developed the same as per annexed photos marked BOM-1(a), (b), and (c). 14.The 1st defendant deposes that he occupies 2.5 acres of the land while his aunt and siblings occupy the remaining 2.5 acres. 15.The 1st defendant deposes that while it is true that he executed the resettlement agreement, the same does not expressly state that the resettlement is from Plot No. 8699/12 and or prohibits him from cultivating, planting, or otherwise tilling or utilising No. 8699/12 where he ordinarily resides. 16.The 1st defendant terms the application as brought too late in the day with the ulterior motive of denying him the right to occupy and utilise the land freely and without interference, which land he was given by Mr Alfred Durane, and after the plaintiff took possession, he never took steps to evict him, hence she is guilty of laches. 17.The 1st defendant terms the plaintiff as a mere trustee of the estate who has a duty of transforming the said portion to him, who has shot herself in the leg, more so when the resettlement program or agreement was extinguished by virtue of effluxion of time and lack of Land Control Board Consent to effect the transfer. 18.The 1st defendant deposes that the plaintiff, having realised that the agreement is wanting, now has tried to include LR No. 8699/12 in the agreement title of which was never part of the parcel of land said agreement. 19.The 1st defendant deposes that as per the said agreement, allocation was to be done between 90 days period lapsed, making the agreement invalid due to breach of Clause No. 6.68 by the plaintiff, hence has come to court with dirty hands. 20.The 1st defendant deposes that the demand letter did not address the purported resettlement programme, but only warned him about the use of land. The 1st defendant states that he has no place to live other than the 5 acres allocated to him; the application falls short of meeting the grounds of a temporary injunction. 21.The 2nd defendant opposes the application through a response dated 18/3/2026, stating that his family has lived on the land since 1956, he had already ploughed the land before the suit was filed, family graves exist on the land, he was never party to the former suit, he never executed the resettlement agreement, and the suit was filed before the 90 days had expired. 22.The 1st and 2nd defendants rely on written submissions dated 18/3/2026 and 23/3/2026, respectively. The 1st defendant submits that the plaintiff has failed to meet the threshold of granting a temporary injunction as held in Rex Developers Ltd & Others vs KCB Ltd & Another [2026] KEHC 2856 [KLR]. 23.It is submitted that ownership per se does not permit the grant of the reliefs sought by the plaintiff, more so given the use, occupation, and development of the land for over 50 years. 24.The 1st defendant submits that no irreparable loss has been demonstrated as held in Keino vs Uasin Gishu County Government & Another [2026] KEELC 5201 [KLR], and in Pius Kipchirchir Kogo -vs- Frank Kimeli Tenai [2018] eKLRthat the ingredients set in Giella vs Cassman Brown & Co. Ltd [1973] EA 358, Mrao Ltd vs First American Bank of (K) Ltd [2003] eKLR, and Nguruman Ltd -vs- Jan Bonde Neilsen & Others [2014] eKLR, have not been met by the plaintiff to warrant grant of the reliefs sought. 25.Order 40 of the Civil Procedure Rules provides that no court has the power to issue a temporary injunction where, in a suit, it is proved by an affidavit or otherwise that the subject matter in issue is under threat of damage, destruction, or disposal to the detriment of the plaintiff or where there is a breach of an agreement thereof. 26.The primary pleading by the plaintiff is the plaint dated 27/2/2026. The cause of action is captured in paragraphs 4 - 17 of the plaint. The plaintiff and the defendants are said to have executed the resettlement agreement dated 29/12/2025. It is not the duty of the court to rewrite agreements between parties but to enforce them unless vitiated by illegality, fraud, or where the terms are unconscionable. See National Bank of Kenya Ltd -vs- Pipe Plastic Samkolit (K) Ltd & Another [2001] KLR 112. 27.Since the entry of appearance on 13/3/2026, the 2nd defendant has not filed and served a statement of defence to deny the contents of the plaint. The same applies to the 1st defendant. The replying affidavits to the notice of motion dated 27/3/2026 have not disputed the existence of and the binding nature of the resettlement agreement or programme based on any of the elements or grounds in law to vitiate a contract or an agreement. 28.Whereas the law allows the court to grant a temporary injunction where there is a breach of a contract, there must be a valid contract in the first instance, which is enforceable in law. Parties equally have the freedom to contract. A court cannot be used to aid a party to evade its liability or get out of a bad bargain, as held in Kwanza Estates Ltd vs JKUAT SC Petition No. E001 of 2024. 29.In this suit, there is already a judgment of this court attached as annexure marked RNOS-(3). It is a judgment in rem. The 2nd defendant says that he was not a party to the same. If at all, he was not a party and was not bound by it; he had an opportunity to join the suit or object to the orders of eviction that were issued and directed at the judgment debtor, their agents, and or servants in possession of LR No. 8699/8 or its original No. 8699/6/2. 30.Court decrees are not made in vain. There is no evidence that the judgment or its decree has been appealed against, stayed, or set aside. 31.The defendants cannot feign ignorance of its implications on them and the resultant agreement, which seems to perfect the judgment and assist them in regularising their use, occupation, and possession of 51 acres to avoid the eviction. 32.A party that comes to equity must do equity. The respondents cannot turn around and invite the court to help them escape their existing and binding obligations in the resettlement agreement, which align with an existing court decree of this court. Equally, he who comes to equity must do equity. 33.Given the facts and circumstances of this suit, the court finds that the plaintiff has established a prima facie case with a probability of success, since there are valid titles to the suit land, which the court, in its earlier judgment, validated and had established rights which had been infringed by intruders to the land. The said superior rights in this suit were acknowledged by the defendants in the resettlement agreement. The defendants are estopped in law from pleading otherwise. 34.Irreparable loss or damage is likely to arise if the defendant does not honour the resettlement agreement on time or at all. The plaintiff stands to be inconvenienced more in the absence of a temporary injunction, unlike the defendants, who hold no valid rights or interests to the portion of the suit land they had agreed to move out of. 35.Prayers No. (3), (5), and (6) of the application dated 27/2/2026 are hereby allowed to last for one year. 36.Orders accordingly. RULING DATED, SIGNED, VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 10TH DAY OF JUNE 2026.HON. C.K. NZILIJUDGE, ELC KITALE.RULING DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 10TH DAY OF JUNE 2026.In the presence of:Court Assistant - Matui/NancyMr. Nakitare for the 2nd defendantMs. Keya for the 1st defendantNo appearance for the plaintiff