https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5113

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E107 OF 2025** **GEOFREY ASHITIBA………………..........................APPELLANT** **VERSUS** **LWANGU JOHN PAUL KALASIA……………......RESPONDENT** ***(Being an appeal against the ruling*** ***of Hon. J. J Masiga (SPM) delivered on 28th November, 2025 in Kakamega MCELC Case No. E113 of 2024)*** **JUDGMENT** **Introduction** 1. This appeal arises from the ruling of Hon. J. J Masiga (SPM) delivered on 28th November, 2025 in Kakamega MCELC Case No. E113 of 2024. In the impugned ruling made pursuant to an application for injunction dated 24th March 2025 filed by the defendant who is the appellant herein, the trial court held that the defendant had not demonstrated a prima facie case with a probability of success and had not demonstrated the irreparable injury he will suffer if the injunction is not granted. For the said reasons, the trial court held that the application seeking temporary injunction lacked merit and therefore dismissed the same with costs. **Background** 1. By a plaint dated 6th May, 2024, the plaintiff who is the respondent herein and registered proprietor of parcel No. Idakho/Shikulu/1807 sued the defendant claiming that the defendant’s entry and occupation of the suit parcel is unjustified and unlawful and requiring the defendant, his agents, servants and anybody acting under the instructions of the defendant be evicted from the suit parcel; the court be pleased to direct that the plaintiff has suffered special damages for the value of his damaged trees and tea crop in the value of Kshs.1,080,475.20/= and Kshs.1,013,000/= respectively; and the court award the plaintiff general damages suffered at the incidence of the defendant; costs and any other further reliefs the court may deem just and expedient. 2. The plaintiff averred that early 2019, the defendant unlawfully entered into the plaintiff’s land parcel and unlawfully fell the plaintiff’s trees and uprooted his tea crop. That the defendant’s acts of entering and destroying the plaintiff’s tees and crop were unjustified and unlawful and have occasioned loss and damages. 3. The defendant filed defence dated 3rd December, 2024. He denied the plaintiff’s claim and denied allegations that the suit property belongs to the plaintiff as alleged; that he entered into the said parcel and that his entry thereon was not unlawful or at all. He stated that prior to 2009, the title of the parcel of land was not in the name of the plaintiff and the same was procured unlawfully and irregularly after the ruling of the court in Kakamega High Court Succession No. 300B of 2005. 4. That the suit property was during adjudication in 1975 registered in the name of Andayi Ingotso – deceased father of Christina Wirunda and that the deceased died in 1986. That David Lwangu Kalasia (now deceased) the father to the plaintiff irregularly had the title to the parcel transferred into his name in 1992, long after the death of the original proprietor Andayi without carrying out succession proceedings which transfer Christina Wirunda successfully challenged and revoked vide Kakamega High Court Succession No. 300B of 2025 whereupon the title parcel was transferred and registered in the name of Christina Wirunda on 3rd January, 2019. 5. That he is the bona fide purchaser for value from Christina Wirunda who was the sole registered proprietor as of 2019, where he entered and took possession of the suit land which was vacant and his occupation was and is still lawful in view of the aforesaid ruling of the High Court and pending the proceedings before the Court of Appeal. That the plaintiff’s title is irregular and unlawful and he is not entitled to orders of eviction or compensation by way of special or general damages. 6. The defendant filed a notice of motion application dated 24th March, 2025 seeking an order of temporary injunction restraining the plaintiff either by himself, his servants or agents from evicting and attempting to evict him and in any way interfering with the defendant’s property on the suit parcel and an order to maintain status quo pending hearing and determination of the suit. The defendant averred that the plaintiff had threatened to evict him and had gone ahead to destroy his property. That the defendant had ploughed down the defendant’s crops and trees worth Kshs. 38150/=. That status quo ought to be maintained. 7. The said application was opposed by the plaintiff through a replying affidavit dated 29th April, 2025. The plaintiff deponed that the whole land parcel is registered in his name as the sole proprietor on 31st January, 2023. That he has duly developed the parcel of land by planting trees and tea crop and the defendant destroyed and damaged the same during the period he forcefully gained occupation of the land, which was the basis of the suit. That the process that led to the registration of his name as the sole proprietor has not been reviewed to date. Further that the defendant had not demonstrated that he fulfilled the conditions essential for an award of injunction and he is therefore not entitled to the orders sought in his application. 8. On 20th May, 2025 the court directed that the application dated 24th March, 2025 be canvassed by written submissions. Upon consideration of submissions by the parties, the trial court made a ruling dated 28th November, 2025 and held that the defendant had not demonstrated a prima facie case with a probability of success and had not demonstrated the irreparable injury he will suffer if the injunction is not granted and for the said reasons held that the application seeking temporary injunction lacked merit and therefore dismissed the same with costs. 9. Aggrieved with the decision of the trial court, the appellant herein appealed against the same vide his Memorandum of appeal dated 1st December, 2025 citing the following grounds of appeal; * + 1. **The learned trial magistrate erred in law and fact by dismissing the appellant’s application dated 24th March, 2025 when the same was merited and proper and valid evidence, material and grounds had been placed before the court to warrant its being granted.** 2. **The learned trial magistrate erred in law and fact by dismissing the appellant’s application thereby exposing him to eviction by the respondent before their case is heard and determined which will render the case before the subordinate court otiose, nugatory and a mere academic exercise.** 3. **The learned trial magistrate erred in law and fact by failing to appreciate that by failing to issue an order for status quo or an injunction restraining the respondent from evicting the appellant pending hearing of their case the appellant risks eviction which will occasion him irreparable loss and damage.** 4. **The learned trial magistrate failed to identify and determine the correct issues and the said ruling was arrived at in a cursory manner and is flawed, erroneous and has occasioned a miscarriage of justice.** 10. Consequently, the appellant sought the following orders; 11. **That the this appeal be allowed with costs.** 12. **That the ruling and orders of 28th November, 2025 by the subordinate court be set aside or quashed and the same be substituted with an order allowing the appellant’s application dated 24th March, 2025 with costs.** 13. **Any other or further relief deemed just and expedient.** 14. The appeal was canvassed by way of written submissions. The appellant filed submissions dated 23rd March, 2026 while the respondent’s submissions are dated 30th March, 2026. **Appellant’s submissions** 1. The appellant submitted that despite being fully aware that the appellant was currently in exclusive possession and use of the suit parcel No. Idakho/Shikulu/1807 in ignorance of the ongoing proceedings at the subordinate court, and the dispute as to ownership of the suit land pending the hearing and determination by the Court of Appeal vide Kisumu Court of Appeal case No. E022 of 2021 the respondent started threatening to evict the appellant from the suit land without any court order. That he was using unorthodox means including damaging the appellant’s crops and trees on the suit land. Afraid of the threats, the appellant filed the application which was dismissed. That the ruling paves way for the respondent to proceed with unlawful acts of eviction and the same will render the appellant destitute and occasion him irreparable loss and damage which led to the present appeal. 2. For the said reasons, the appellant’s appeal for an order allowing the application dated 24th March, 2025 so that pending hearing of the respondent’s suit, he be restrained from evicting the appellant and or status quo prevailing the suit be maintained otherwise the appellant risks irreparable injury and loss. He urged the court to consider the concept of irreparable injury which seeks to preserve the suit property and the suit from being negated. Reliance was placed on the case of **Pius Kipchirchir Kogo vs Frank Kimeli Tenai(2018)eKLR,** where the court held: ***“irreparable injury means that the injury must be one that cannot be adequately compensated for in damages..”*** **Respondent’s submissions** 1. The respondent argued that he is a law-abiding citizen and he filed the suit seeking eviction orders against the appellant, and he therefore would not engage in any other means to evict the appellant when the suit is pending. That would be criminal in nature and unlawful and the application filed was unnecessary in the first instance and was merely meant to delay the hearing and disposal of the substantive suit and therefore the application lacked merit and the trial court was right t decline it. 2. That further the appellant brought no counterclaim to the claim raised in the trial court or even to this appeal and therefore the appeal had no merit and is purely meant to delay the determination of the substantive suit as the respondent would not proceed to evict the appellant without a court order. Regarding Kisumu Court of Appeal case, the respondent argued that the relevance therein has not been brought to bear in the instant appeal; that there is no explanation as to why the appellant has moved the court of appeal for orders of restraining or stay against him and there is no disclosure by the appellant as to progress in the appeal. Therefore, the respondent submitted that the appeal lacks merit, is brought in bad faith with the view of delaying speedy disposal of the substantive case and should be dismissed with costs. **Analysis and determination** 1. The court has carefully considered the appeal, the trial court record and rival submissions. This appeal challenges the exercise of discretion by the trial court in refusing to allow an application for temporary injunction against the respondent herein. Therefore, the only issue determination is for whether there is justification for this court’s interference with the exercise of discretion by the trial court, in dismissing the application dated 24th March 2025. 2. This court will not ordinarily interfere with the exercise of discretion by the trial court, merely on the basis that it would have arrived at a different conclusion if it had heard the matter. This court will only interfere with the exercise of discretion by the trial court where it is demonstrated that the trial court failed to act judiciously or made an error of law or principle or took into account irrelevant considerations or failed to take into account relevant considerations; or the decision is plainly wrong. 3. The Supreme Court of Kenya in the case of **Apungu Arthur Kibira v Independent Electoral and Commission Boundaries & 3 Others [2019] e KLR** stated that: **“We reiterate that in an appeal from a decision based on an exercise of discretionary power, an Appellant has to show that the decision was based on a whim, was prejudicial or was capricious. This was as determined in the New Zealand Supreme Court case of Kacem v Bashir [2010] NZSC 112; [2011]2 NLRI (Kacem) where it was held para 32]:“In this context a general appeal is to be distinguished from an appeal against the decision made in exercise of discretion. In that kind of case, the criteria for a successful appeal are stricter: (i) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.”** 1. Also, in the case of **Mbogo & Another vs. Shah [1968] EA. 93 at page 96,** the Court of Appeal maintained that: - **“…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been injustice….’’** 1. In the instant case, the trial court dismissed the appellant’s prayer for injunction on the basis that he had not produced any evidence to show that the suit property belonged to him, while the respondent had shown that he was the registered proprietor thereof. 2. It is trite that a party seeking a temporary injunction must demonstrate a prima facie case, show irreparable injury and where the court is in doubt it ought to consider the balance of convenience. **(**See **Giella v Cassman Brown (1973) 358 EA).** In the instant case, the party seeking the injunction was a defendant who did not have a counterclaim and therefore did not have a case, leave alone a *prima facie* case in so far as ownership of the suit property was concerned. From the ruling, the trial court interrogated the elements for proof of injunction and found that no prima facie case was proved and that no irreparable harm was demonstrated as the injury referred to was in the sum of Kshs 38, 150/= which could be compensated in damages. 3. I do not find anything in the impugned ruling where the trial court considered irrelevant matters or failed to consider relevant matters. The court considered the question of prima facie case and adequacy of damages in respect to the harm complained about. Therefore, I am satisfied that the trial court considered all relevant matters and did not consider any irrelevant matters in declining to grant injunctive orders. It is therefore clear that in dismissing the appellant’s application for injunction, the trial court exercised its discretion judiciously. In the premises, there is no basis or justification for this court’s interference with the exercise of discretion by the trial court. 4. In the end, I find no merit in this appeal which I hereby dismiss with costs to the respondent. 5. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT /VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 30TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** No appearance for the appellant Mr. Mukavale J. for the respondent Court Assistant: Delphine