https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3827

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC CONSTITUTIONAL PETITION NO. E003 OF 2025** **LAWRENCE ESONGA FESTO ……………….. PETITIONER/APPLICANT** **= VERSUS =** **OCHWADA EGESA …………………….…..…..…..….... 1ST RESPONDENT** **THE LAND REGISTRAR ………………….…………..… 2ND RESPONDENT** **THE HONOURABLE ATTORNEY GENERAL ……..... 3RD RESPONDENT** **RULING** 1. The circumstances leading to filing of this Petition and an application seeking an order of interim injunction are that vide a judgment delivered on 6th day of May 2021 in Busia CMCC ELC Case No.18 of 2016 between Opama Ochwada Egesa and Chrispinus Ekisa, the learned trial magistrate ordered the defendant in that suit, Chrispinus Ekisa, to forthwith surrender vacant possession of land parcel number South Teso/Angoromo/14174 to the plaintiff failing which he be forcefully evicted therefrom. The learned trial magistrate also issued an order of permanent injunction restraining the defendant from interfering with the suit property. 2. As can be discerned from the judgment in Busia CMCC ELC Case No. 18 of 2016 above, the parcel of land known as South Teso/Angoromo/803 (which is the subject matter in this Petition) featured in the suit before the lower court in that the defendant claimed that the parcel belonged to his brother, Lawrence Esonga Festo, who is the petitioner/applicant herein. 3. Other than being mentioned in the suit in the lower court, the petitioner/applicant herein was neither a party nor a witness in the suit before the lower court. 4. In this Petition, the petitioner/applicant contends that his father, the late Festo Eudonge Ochwada was the rightful owner of South Teso/Angoromo/803, which is the subject matter of the Petition. 5. Whilst the petitioner/applicant in his pleadings has not given the nexus between South Teso/Angoromo/803 and 14174, the 1st respondent through his replying affidavit, has deponed that the parcel of land known as South Teso/Angoromo/14174 is a subdivision of South Teso/Angoromo/1488 which was a subdivision of South Teso/Angoromo/803. 6. It is the petitioner’s/applicant’s case that the parcel of land known as South Teso/Angoromo/803 was subject of a dispute between the 1st respondent’s father and him and that the dispute was determined in his favour. 7. What I gather from the petitioner’s/applicant’s claim, is that the 1st respondent does not have a good title to the suit property and/or their use and occupation of parcel number South Teso/Angoromo/14174, which is a subdivision of South Teso/Angoromo/1488 which was created from South Teso/Angoromo/803 and is subject to an overriding interest in their favour. 8. The respondent filed a replying affidavit sworn on 12th November 2025 to the Petition and application dated 20th August 2025 in which he *inter alia* contends that: - 9. The instant suit is res judicata Busia CMCC Case No. 18 of 2016 and Busia HC ELC No. E045 of 2021 (which was dismissed for want of prosecution); 10. That the instant suit is time barred; 11. The Petition as drawn flouts the mandatory provisions of **Section 5** of the Oaths and Statutory Declarations Act as read together with **Section 8** of the said Act in that the petitioner/applicant never appeared before his advocate on record Mr. Maxwell Okeyo Ochiel for purposes of commissioning the affidavits hence the same have not been properly commissioned. 12. That this court lacks jurisdiction to entertain the suit as it relates to a boundary dispute that ought to be determined by the Land Registrar as provided under **Section 18 (2)** read with **Section 79 (1)** of the Land Registration Act, 2012. 13. Terming the Petition and the accompanying notice of motion scandalous, vexatious and otherwise an abuse of court process, the respondent urges this court to dismiss them with costs to him. 14. The application seeking an order of interim injunction to restrain the respondent, his agents and the police from enforcing eviction orders or interfering with the petitioner’s/applicant’s occupation of parcel South Teso/Angoromo/803 and an order of stay of execution in respect of the eviction orders issued in Busia CM ELC No. 18 of 2016, was disposed of by way of written submissions. 15. In his submissions dated 27th August 2025, the petitioner/applicant identifies 4 issues for the court’s determination namely; 16. Whether he has established a prima facie case with probability of success, 17. Whether he has shown risk of irreparable harm not compensable by damages; 18. Where the balance of convenience lies and whether the constitutional threshold for conservatory orders has been satisfied. 19. Regarding those issues, the petitioner/applicant submits/addresses the court as follows: - **“The starting point is Giella v Cassman Brown (1973) EA 358 which established the trinity test for interim injunctive relief.** **In Mrao Ltd v First American Bank of Kenya Ltd (2003) KLR 125, the Court of Appeal clarified that a prima facie case exists where the material presented demonstrates violation of a right calling for answer.** **In constitutional matters, the jurisprudence has evolved. In Centre for Rights Education and Awareness (CREW) v AG (2011) e KLR the Court held that conservatory orders are distinct from interlocutory injunctions and are meant to safeguard the substratum of the Petition.** **The supreme court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others (2014) e KLR stated that conservatory orders are grounded on the inherent merit of the case, the public interest, constitutional values and proportionality…”** 1. On whether he has established a prima facie case with probability of success, the petitioner/applicant submits as follows: - **“The petitioner/applicant has demonstrated an arguable and legally sustainable case:** **The Chakol Land Disputes Tribunal (Busia LDT Case No. 13 of 2008) and the Provincial Appeals Committee conclusively determined boundary irregularities on South Teso/Angoromo/803 and their award was adopted as a judgment of a court of competent jurisdiction under section 7 of the Land disputes Tribunals Act (repealed).** **By virtue of section 7 of the Civil Procedure Act (*res judicata*), those determinations remain binding and enforceable unless overturned by a Superior Court.** **The eviction orders in Busia CM ELC No.18 of 2016 contradict binding tribunal award and therefore raise an arguable case of violation of Article 40(1) (protection of property), Article 47 (fair administrative action) and Article 50 (right to fair hearing).** **On this basis, the Petition raises serious triable constitutional issues satisfying the definition of a *prima facie* case in Mrao (supra).”** 1. As to whether he has shown risk of irreparable harm not compensable by damages, the petitioner/applicant submits as follows:- **“…execution of eviction orders will disposess his family of their only ancestral home since 1915; permanently interfere with cultural burial rights and dignity as the remains of his mother cannot be interred on their ancestral land and cause civil imprisonment of family members, which is deprivation of liberty.”** 1. It is the petitioner’s/applicant’s case that such harm cannot be quantified in damages, aligning with the holding in **Nguruman Ltd v Jan Bonde Nielsen (2014) eKLR** that irreparable injury is that which cannot be adequately remedied by damages. 2. On where the balance of convenience lies, the petitioner/applicant submits that the balance of convenience lies in preserving the *status quo ante* until final determination since if the petitioner/applicant is evicted now, the Petition becomes nugatory. Conversely, if the respondent is restrained temporarily, he loses nothing irreversible since he will still enforce his rights if successful at the full hearing. In that regard, the petitioner/applicant has placed reliance on the case of **Kenya Commercial Finance Co. Ltd v Afraha Education Society (2001) EA 86** where it was affirmed that where the balance of convenience is in doubt, the status quo should prevail. 3. As to whether the Petition satisfies the broader constitutional test; the petitioner/applicant submits as follows: - **“public interest: enforcement of tribunal awards and certainty of land registration records is a matter of systemic importance; constitutional values: dignity, access to justice and right to property are engaged (articles 28, 40, 47 and 50); preservation of substratum: eviction would render the Petition academic.”** 1. In his submissions dated 12th November 2025, the 1st respondent submits/addresses the court as follows:- **“…the principles applicable in granting interim order of injunction pending the hearing and determination of a case were set out in Giella v Cassman Brown key among them being that the petitioner/applicant must establish a prima facie case with chances of success. In the case of Mrao v First American Bank of Kenya & two others (2003) KLR 125, a prima facie case was defined as follows:** ***‘a prima facie case in civil application includes but is not confined to “a genuine and arguable case”. it is a case 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 as to call for an explanation or rebuttal from the latter’.*”** 1. The 1st respondent further submits:- **“It is our humble submission that the application dated 20th August 2025 falls short of this threshold as the petitioner/applicant has not provided sufficient evidence to establish a prima facie case with high chances of success. The petitioner/applicant has not supplied any documents to prove the existence of the disputed parcel of land namely L.R No. South Teso/Angoromo/803 neither has he annexed a certificate of title to prove ownership of the suit property so as to qualify the court the protection as provided for under Section 26 of the Land Registration Act. This is further compounded by the fact that the parcel in question does not even exist in the first place as the subject orders issued in Busia CMC ELC No.18 of 2021 which the petitioner/applicant seeks to stay its implementation in the interim was land parcel number L.R No. South Teso/Angoromo/14174 as opposed to L.R No. South Teso/Angoromo/803. It is thus our humble submission that the petitioner/applicant has not made out a prima facie case with high chances of success hence the application should be dismissed.** **To compound the petitioner’s/applicant’s troubles, the petitioner/applicant and his family are on record for having disobeyed a valid court order and seeking to use the present Petition to stay on the very land which another court has ordered them to be evicted. ... The court’s discretion is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice….the petitioner/applicant having been properly served with orders requiring them to vacate the suit parcel and refused to vacate but turn back to file several claims including the Petition herein in attempt to get orders contrary to orders issued in another court of competent jurisdiction demonstrates bad faith on the petitioner’s/applicant’s part and is otherwise an abuse of court process hence his hands are soiled.’’** 1. Based on the decisions in the cases of **Stallion Insurance Company Ltd vs Rosemary Olao Nairobi Civil Appeal No. 85 of 1998** and **Francis J.K Ichatha vs. HFCK CA No. 108 of 2005,** the 1st respondent submits that the petitioner/applicant has not made up a case for being granted the orders sought and urges this court to dismiss the application with costs to him. 2. It is noteworthy that the petitioner/applicant did not annex any documents to the affidavits but filed what he refers in the Petition as supporting documents, namely; certified copy of the LDT Award (Busia LDT Case No. 48 of 2009); certificate of adoption by court (not attached); Chakol (LDT Case No.13 of 2008) and Provincial Tribunal Ruling; Title deeds or land search certificates for parcel number South Teso/Angoromo/802; plaint in civil suit No. 352 of 2011 and judgment in CM ELC No.18 of 2016; affidavit detailing custodial sentence and burial delay and burial permit for Juliana Atyang. 3. On whether failure to annex the documents relied on to the affidavit sworn in support of the Petition, the (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules of Constitution of Kenya (Mutunga Rules, 2013), which apply to constitutional Petitions provides as follows:- **“11 (1) the Petition filed under these rules may be supported by an affidavit** **(2) If a party wishes to rely on any document, the** **document shall be annexed to the supporting affidavit or the Petition where there is no supporting affidavit.”** 1. In the instant case, the petitioner/applicant filed a supporting affidavit but failed to annex the documents he desires to rely on thereby rendering the averments therein not supported by the intended documentary evidence. Be that as it may, I have read and considered the replying affidavit of the 1st respondent, sworn on 12th November 2025 and taken note of the following deposition: **“6. …L. R No. South Teso/Angoromo/803 and L.R. No. South Teso/Angoromo/804** (I think there is an error here, meant to refer to 802), **the subject of the Petition herein, does not exist as the same was closed on subdivision on 18th April 1984 (Attached and marked O.E-1 is a copy of Register for L.R No. South Teso/Angoromo/803 and L.R No. South Teso/Angoromo/804** (The register has not been attached as intended) ; **7. That sometime in the year 2015, the petitioner/applicant together with his family trespassed onto my parcel of land comprised in South Teso/Angoromo/1488 which is a subdivision of L.R No. South Teso/Angoromo/803. Attached and marked E.0.-2 is a copy of title deed for L.R No. South Teso/Angoromo/1488;** **8. That I took legal action against the petitioner/applicant and his family by filing Busia CMC ELC No.18 of 2016 Omama Ochwada Egesa v. Chrispinus Ekisa to protect my interest over the suit parcel. Attached and marked E.O-3 is a copy of the plaint dated 28th January 8.** **9. That I later subdivided L.R No. South Teso/Angoromo/1488 into 2 portions and transferred a portion thereof to a 3rd party and remained with L.R No. South Teso/Angoromo/14174 in my name and was forced to amend the plaint. Attached and marked E.0-3 (3a)-(b) are copies of amended plaint dated 22nd October 2019;** **10. That upon hearing both parties, the suit was decided in my favour on 6th May 2021 and the Defendant Chrispinus Ekisa together with his agents ordered to vacate L.R No. South Teso/Angoromo/14174 and a permanent injunction issued to that effect. Attached and marked E.O 4 is a copy of the order in Busia CMC ELC No.18 of 2016 dated 6th May 2021.** **11. That the petitioner/applicant herein was not a party to Busia CMC ELC No. 18 of 2021 hence he cannot purport to interfere with a Court Order that he is not party to.** **12. That the said Court Order together with the Eviction Notice was served upon the Defendant and his agents including the petitioner/applicant herein on 27th August 2021 but the Defendant and his family including the petitioner/applicant have refused to obey the said orders and are thus using the present application in an attempt to disobey the previous orders of the court. Attached and marked E.O-5 is a copy of the affidavit of service dated 2nd September 2021.… ”** 1. Whereas in his affidavit the 1st respondent depones that parcel numbers South Teso/Angoromo/1488 from which South Teso/Angoromo 14174 was created is a subdivision of parcel No. South Teso/Angoromo/803, the evidence attached to the affidavit namely the title deed for title number. South Teso/Angoromo 1488 does not support that claim. The title deed shows that parcel number South Teso/Angoromo 1488 is a subdivision of 802. 2. What I gather from the petitioner/applicant’s pleaded case, is that there was an error in registration of the parcels of land known as South Teso/Angoromo 802 and South Teso/Angoromo 803 in that the registration of the said parcels did not capture the parties entitlement of the parcels of land on the ground. It is the petitioner/applicant’s case that the dispute concerning the parties’ entitlement to those parcels was subject of a dispute before the Land Disputes Tribunal Case and that the dispute was resolved in his favour. I note that the 1st respondent has not denied the said claim by the petitioner/applicant and has instead addressed it as follows: - **“16. That this court lacks jurisdiction to entertain the claim herein as this is a boundary dispute which ought to be heard by the Land Registrar as provided for under section 16(1), Section 18(2) and Section 79(1) of the Land Registration Act, Cap 300 Laws of Kenya;** **….** **19. That the suit herein is time barred by dint of Section 4(1) as read with Section 7 of the Limitation of Actions Act as the registers for land parcels number L.R No….802 and L.R No….803 which the petitioners/applicants seek to rectify were closed on subdivision on 18th April 1984;** **That the Petition offends the provisions of section 4(4) of the Limitation of Actions Act Cap 22 Laws of Kenya as the claim seeks to implement a court order issued in the year 2008, a period of more than 12 years as stipulated by the law...”** 1. Concerning the 1st respondent’s claim that this court lack’s jurisdiction to entertain the dispute presented before it on account of it being a boundary dispute, I wonder whether by that claim, the 1st respondent is impliedly admitting that the dispute he took before the lower court was also a boundary dispute in respect of which the lower court had no jurisdiction to hear and determine. I say so because, the defendant in the suit below the lower court, claimed that he was in occupation of parcel number South Teso/Angoromo 803 which is claimed by the appellant. 2. With regard to the alleged time bar, this being a Constitutional Petition in respect of which the Constitution prescribes no time lines for bringing a claim alleging violation of constitutional rights, I find and hold that the 1st respondent cannot rely on the alleged time bar to defeat the petitioner’s/applicant’s claim. Moreover, from the affidavit evidence adduced in this case, I gather that the petitioner/applicant and his family have been in use and occupation of the parcel of land in question, based on their alleged claim to entitlement thereof way before the 1st respondent acquired title to parcel number South Teso/Angoromo 14174. That being the case, by operation of law, particularly **Section 28** of the Land Registration Act, 2012, the occupation of the suit property by the petitioner/applicant and his family members is an overriding interest to the rights of the 1st respondent as a registered proprietor of the suit property. That being the case, the 1st respondent may not legally evict the petitioner/applicant from the suit land without affording him and/or any other persons in alleged unlawful possession and occupation of the suit land without affording them an opportunity to be heard on their claim to entitlement to occupy and possess the suit land. 3. Whilst there is evidence that the 1st respondent obtained eviction orders against the petitioner/applicant’s brother, which eviction orders, unless varied, reviewed, stayed and/or set aside he is entitled to enforce against the defendant in that suit, it is the view of this court that the said eviction orders cannot be enforced against the petitioner/applicant herein or any other member of the petitioner’s/applicant’s family who was not made a party to the suit and offended an opportunity to be heard in the suit in which the orders were sought and obtained. It is the considered view of this court, that if the 1st respondent needed to enforce the eviction orders against the petitioner/applicant and the other members of his family alleged to occupy the suit land unlawfully, the 1st respondent needed to make them parties to the suit or at least make it clear that the defendant in that suit had been sued in a representative capacity. I have seen the plaint annexed to the 1st respondent’s replying affidavit and I am unable to see anything that suggests that the suit against the defendant therein was a representative suit. 4. The upshot of the foregoing is that whereas the 1st respondent may pursue the defendant in the suit before the lower court, he cannot use the orders issued therein to evict the petitioner/applicant herein or the other members of the petitioner/applicant’s family who were not afforded an opportunity to be heard in the suit in the lower court. 5. Having determined that the petitioner/applicant and his family members, other than the defendant in the suit before the lower court cannot be evicted from the suit land using the eviction orders issued in the lower court and further having determined that the use and possession of the suit property by the petitioner/applicant and his family is an overriding interest to the 1st respondent registered interest in the suit property, I do find that the petitioner/applicant has made up a prima facie case with high probability of success as relates to some of the prayers sought in the Petition. 6. In the circumstances of this case, where I have determined that the petitioner/applicant and his family members have been in use and occupation of the suit land for a long period of time pursuant to their claim of entitlement to possession of the suit property they occupy, I am satisfied that unless conservatory reliefs are issued, the petitioner/applicant and his family members may unlawfully be evicted from the suit property thereby causing them irreparable damage. 7. On balance of convenience, I am of the view that it tilts in favour of the petitioner/applicant and his family members who have been in use and occupation of the suit property for a long period of time pursuant to their claim of entitlement of the suit property. 8. The upshot of the foregoing is that the petitioner/applicant has made up a case for: - 9. Grant of an order of interim injunction restraining the 1st respondent, by himself, his agent and the police from enforcing eviction orders or interfering with the petitioner’s/applicant’s occupation of parcel number South Teso/Angoromo/803 and/or any resultant portion therefrom, which order I hereby grant to him pending the hearing and determination of the Petition; 10. Grant of an order of stay of execution of the eviction order issued in Busia CM ELC No. ELC No.18 of 2016 pending the hearing and determination of the Petition; 11. Costs of the application shall abide the outcome of the Petition. 12. To ensure that the Petition is heard and determined without unreasonable delay, I direct the parties to the Petition to, with the help of the Deputy Registrar of this Court, ensure the Petition is heard and determined within 6 months. 13. Orders accordingly. **Ruling dated, signed and delivered, at Busia this 11th day of June, 2026.** **L. N. WAITHAKA** **JUDGE** **In the presence of:** Ms Juma for the Petitioner/Applicant Mr Aburili for the 1st Respondent N/A for the 2nd & 3rd Respondents Sikolia: Court Assistant