https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3799

Ngeywo & another v Kwalia & another (Land Case Appeal E028 of 2025) [2026] KEELC 3799 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELC 3799 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Land Case Appeal E028 of 2025 AK Bor, J June 11, 2026 Between Moses Museser Ngeywo 1st Appellant Chepkeses Kiptanui Robinson 2nd Appellant and Benson Kwalia 1st Respondent Geoffrey Kimai Motongoro 2nd Respondent Judgment 1.The Appellant lodged this appeal against the decision of Hon. J.R. Ndururi, Senior Principal Magistrate (SPM), delivered on 29/5/2025 in Kimilili SPM ELC Case No. E006/2025. The grounds of appeal were that the Learned Magistrate erred by failing to find that the Appellants had established a prima facie case with a probability of success and that the trial court failed to appreciate that the Appellants were in long standing occupation and use of the land known as Chepyuk Phase II Settlement Scheme No. 2625 (suit land) since 1990 and stood to suffer irreparable loss if the court did not grant an injunction. 2.The other grounds were that the Learned Magistrate erred by relying on letters from the Deputy and Assistant County Commissioners, which could not determine land ownership and that the trial court failed to invoke the balance of convenience in favour of the Appellants who had established continuous use and occupation of the suit land for over three decades. 3.The Appellants sought to have the ruling and the orders made by the Learned Magistrate on 29/5/2025 set aside and for an interlocutory injunction to restrain the Respondent from interfering with the Appellants’ peaceful possession and occupation of the suit land pending hearing and the determination of the main suit. 4.The appeal was canvassed through written submissions. The Appellants submitted that they had satisfied the requirements for the grant of a temporary injunction as enunciated in Giella v Cassman Brown (1973) EA 358. The argued that they had demonstrated that they were e allocated the suit land vide the letter of allotment dated 3/7/2002. Further, that they had demonstrated possession and development of the suit land. It was their contention that the Respondents unlawfully entered the suit land, cut down trees, destroyed vegetation and continued to interfere with the land. 5.They faulted the Learned Magistrate for relying on the letter from the Land Adjudication and Settlement Officer dated 18/10/2010 as well as the letters from the Deputy County Commissioner and Assistant County Commissioner dated 30/1/2025 and 7/2/2025 respectively. They maintained that the letters did not confer ownership on the Respondents and went on to challenge the legality of those letters while placing reliance on the legal position regarding double allocation of land. Those submissions are not relevant to the issue at hand since the trial court is yet to make a determination on the ownership of the suit land. 6.The Appellants emphasized that they had a protectable interest over the suit land and that they had demonstrated a prima facie case. They faulted the trial court for focusing on the absence of proof of harm rather than the actual harm pleaded by the Appellants to the effect that they would suffer irreparable loss from the Respondent’s continued trespass, destruction of trees and indigenous vegetation and disturbance of the Appellant’s family’s peaceful occupation of their home. They urged that the balance of convenience tilted in their favour. 7.The Respondents submitted that the Appellants failed to annex any documents to prove that the suit land belonged to them. That on the contrary, the Respondents produced concrete evidence from the Land Adjudication and Settlement Officer, which showed that the suit land belonged to the 1st Respondent. 8.Regarding irreparable loss, the Respondents submitted that since the Appellants did not produce any documents to prove ownership of the suit land, then they failed to establish that they were likely to suffer any loss because the suit land did not belong to them. By the same stretch, that the balance of convenience tilted in favour of the trial court declining to grant the orders which the Appellants sought. 9.The issue for determination is whether the appeal has merit. The Appellant’s claim before the trial court as can be gleaned from the plaint dated 12/2/2025 is that the Respondents had encroached on the Appellants’ land. The Appellants sought a permanent injunction to restrain the Respondents from dealing with the suit land and an order for their eviction from the suit land. In the defence and counterclaim dated 25/5/2025, the Respondents stated at paragraph 6 that the 1st Respondent was the legal owner of the suit land and that the 2nd Appellant had encroached on the suit land to the extent of 3 acres. The Respondents counterclaimed a declaration that the 1st Respondent was the legal owner of the suit land to the exclusion of the Appellants. 10.The impugned ruling given by the Learned Magistrate on the application dated 12/2/2025 was to the effect that the 1st Appellant and the 1st Respondent were the owners of parcel numbers 2626 and 2625 Chepyuk Phase 2 Settlement scheme respectively. The trial court noted that there was a long standing dispute between the 1st Appellant and the 1st Respondent over the correct measurement of the two parcels of land. Further, that the dispute had been the subject of administrative intervention by the Deputy County Commissioner, Kopsiro division and The Assistant County Commissioner, Kospiro Sub County. The Learned Magistrate found that the Appellant had not demonstrated that they had a prima facie case or the irreparable loss they were likely to suffer if the administrative decisions of the Deputy County Commissioner and the Assistant County Commissioner, Kospiro remained in force until the suit was heard and determined. 11.The 1st Respondent admitted at paragraph 7 of the replying affidavit which he swore on 17/2/2025 that the 2nd Appellant had trespassed onto 3 acres of his land since 2020 and had been cultivating the land without his consent. 12.It is evident that neither the 1st Appellant nor the 1st Respondent holds a title over the suit land contrary to the finding by the Learned Magistrate that the 1st Respondent was the owner of the suit land. In making this finding, the Learned Magistrate relied on the letter from the Land Adjudication and Settlement Officer yet the end result of adjudication under the Land Adjudication Act was a title deed. 13.The minutes which were attached to the Respondents Replying Affidavit show that the committee resolved that parcel number 2625 would remain under Benson Kwalia while plot no. 2626 would remain under Syphoros Laikong. This contradicts the Respondents’ assertion in their defence and their affidavits that the 1st Appellant owns parcel number 2626, which is adjacent to the suit land. The question of ownership of the suit land cannot be conclusively determined at the interlocutory stage. 14.This court is satisfied that the Appellants proved a prima facie case with a probability of success before the trial court and therefore deserved injunctive relief based on their complaints that the Respondents had invaded the suit land and were cutting down trees and the Respondents’ admission that the Appellants had been in possession of 3 acres of the suit land since 2020 or thereabouts. The balance of convenience tilted in favour of granting the injunctive relief sought. 15.The appeal is allowed. The ruling delivered on 29/5/2025 is set aside. A temporary injunction is issued restraining the Respondents from alienating, selling, subdividing, transferring or otherwise interfering with the Appellants’ use of parcel no. 2625 Chepyuk Phase 2 Settlement Scheme pending hearing and determination of the suit before the trial court. The Appellants are awarded the costs of the appeal. 16.Parties are directed to fast track the hearing of the case before the trial court. DELIVERED VIRTUALLY AT NAIVASHA THIS 11TH DAY OF JUNE 2026.K. BORJUDGEIn the presence of: -Court Assistants-Bett & MetrineNo appearance for the parties