https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4269

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELCL CASE NO. E009 OF 2026** NICHOLAS STEPHEN OTIENO NYASEME ………..…..... 1ST PLAINTIFF FRANKLIN ERIC ODHIAMBO NYASEME (Suing as the Administrators of the Estate of JOEL ELIJAH DOLFUS NYASEME) …….…………..……. 2ND PLAINTIFF V E R S U S CHARLES ODUOR MUFUANA …………………….……. 1ST DEFENDANT ERIC OMONDI OGOT …………………………….....……. 2ND DEFENDANT MICHAEL OLENG AUDO .……………….………..……... 3RD DEFENDANT DAMARIS ATIENO OCHIENG …….………….………..… 4TH DEFENDANT RACHEL AKINYI ONYANGO …………….…………..…… 5TH DEFENDANT JANE OLANG …………………..……….……..……………. 6TH DEFENDANT JOHN MARK WANDOLO ………………..…..………….… 7TH DEFENDANT FRANSCISCA OWUOR ….…..…………..…..……..…….. 8TH DEFENDANT FRANSCISCA AKHUTU LUYO …………..…..…………… 9TH DEFENDANT FRANK OUMA ODHIAMBO ………….…………..…….. 10TH DEFENDANT ALBERT ODUOR KOMBO ………….………..…..…..... 11TH DEFENDANT SAILASH RATILAL KACHRA, HARAKHCHAND KACHRA SHAH & KIRAN RATILAL SHAH ……….………………. 12TH DEFENDANT CHRISTOPHER OMONDI ADIKINYI OMIJA .……... 13TH DEFENDANT COUNTY GOVERNMENT OF KISUMU ……….…….. 14TH DEFENDANT THE DIRECTOR OF SURVEYS ………….…….…….. 15TH DEFENDANT REGISTRAR OF LANDS, KISUMU LAND REGISTRY ………………………………16TH DEFENDANT CHIEF LAND REGISTRAR, MINISTRY OF LANDS ……………………………….…... 17TH DEFENDANT HONOURABLE ATTORNEY GENERAL ………………. 18TH DEFENDANT **R U L I N G** 1. The Application before Court for determination is the Notice of Motion dated 2nd March, 2026, brought by the Plaintiffs pursuant to the provisions of Article 159 of the Constitution of Kenya 2010 and sections 66 and 79 of the Law of Succession Act. 2. The Application seeks Orders that; 3. Pending the hearing and determination of the suit, a temporary order of injunction be issued prohibiting the 1st to 3rd Defendants, their agents, employees or person acting on their behalf or acting upon their instructions or any other party from entering, remaining on, charging, selling, transferring, leasing or otherwise disposing of or erecting any construction on the properties known as LR 17477 or to the now illegally issued titles known as KISUMU/KANYAKWAR B/1321, 1325, 1350, 1402, 1403, 1404, 1405, 1406,1408, 1409, 1411 – 1428 and 1497. 4. An order do issue to the effect that any transaction carried out on the parcel of land number LR. 17477 measuring 7 acres and currently illegally sub-divided into plots described as KISUMU/KANYAKWAR B/1321, 1325, 1350, 1402, 1403, 1404, 1405, 1406,1408, 1409, 1411 – 1428 and 1497 or any other subsequent title numbers of such other descriptions not mentioned herein but arising from LR. No. 17477 situated in Kanyakwar Area on the foot hill of Rick Hills be cancelled, and the ownership of the suit parcel of land thereof be ordered to revert to the Estate of Joel Elijah Dolfus Nyaseme – deceased. 5. The Application was supported by the averments in the Supporting Affidavit sworn by Nicholas Stephen Otieno Nyaseme on 2nd March, 2026, and the annexures thereto. The case of the Applicants is that the Respondent intermeddled with the Estate of the deceased by trespassing, occupying, and developing the suit parcel of land without any justifiable cause. That the Respondent unlawfully entered the suit land, subdivided it, and unlawfully obtained registration of titles to the suit land. That the suit land is the property of the deceased, who died on 4th February, 2012, and any dealings with the suit land without a Grant of Letters of Administration amount to intermeddling with the Estate. 6. The Application was opposed vide the contents of the Replying Affidavit sworn by Frank Ouma Odhiambo, the 10th Respondent, on 23rd March, 2026. The case of the 10th Respondent is that he has been in occupation of the land parcel No. KISUMU/KANYAKWAR B/1417 from 2009 and has built thereon. That the instant suit is therefore time-barred, given the duration of his stay on the suit land. That the equitable remedy of injunction is not applicable in this matter, as he has been on the land for 17 years, and that to grant an injunction would amount to granting final orders, thus abrogating the right to fair hearing. That there is a high possibility that the Plaintiffs’ land is different from his land, as the Plaintiffs’ land is a leasehold and his land is a freehold. 7. The Application was heard orally on 23/3/2026. It was submitted on behalf of the Plaintiffs/Applicants that the suit is based on fraud, which will be considered at the full trial. That about 10 people have constructed on the land, and that the Court can issue an injunction to restrain the others from building. That titles may be transferred to unsuspecting persons. That this should be restrained by the Court. Counsel relied on the doctrine of sanctity of title and the right to property as enshrined in the Constitution. 8. On behalf of the 10th Respondent, it was submitted that the Application does not meet the principle in *Giella -vs- Cassman Brown* case. That the Surveyor’s Report filed by the Applicants shows that the suit lands are developed with permanent structures. That injunctions are meant to prevent events that have not yet occurred. That there are 2 sets of competing titles: the leasehold and the freehold titles. That these can only be canvassed in the full trial by hearing the evidence. Counsel urged the Court to maintain a defined status quo and to dismiss the Application. 9. I have considered the Application. The only prayer thereof for determination is prayer number 3, which seeks an order of temporary injunction. Prayers 1, 2, and 4 are spent as they sought relief pending the hearing of the Application. Prayer 5 seeks final orders reverting the suit land to the Estate of the Deceased, which prayer can only be addressed in the trial. 10. The grounds for grant of temporary injunction are provided for in Order 40 Rule 1 Civil Procedure rules, 2010, pursuant to which the application is brought that where it is proved by Affidavit or otherwise, 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, the court may, by order, grant a temporary injunction to restrain such act. In the case of *Giella vs Cassman Brown Co. Ltd (1973) 358* the grounds were expounded that the Applicant must establish a *prima facie* case with a probability of success, secondly, that an interlocutory injunction will not normally be granted unless the Applicant would suffer irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience. 11. It is not denied that the Respondents took possession of the suit lands, which are currently registered in their respective names, and have done developments of permanent structures on the lands. The 10th Respondent, who filed a Replying Affidavit, averred that he has been in occupation of the suit land since the year 2009, and that he has developed the land. 12. The purpose of an order of temporary injunction is to prevent an event that is yet to occur, thereby preserving the suit property from wastage, damage, or destruction in the interim period before the suit is heard and the rights of the parties over the suit land are finally determined. In the circumstances of the present case, an order of temporary injunction is not available. The prayer for temporary injunctions is therefore declined. However, to preserve the records in respect of the suit lands, both parties are hereby ordered to maintain the status quo of the said records; neither party shall subdivide, transfer, sell, charge, mortgage, alienate, or take any step that may alter or interfere with the status of the records in respect of the suit land as they exist in the Land Registry on the date hereof pending hearing of the suit. No orders as to costs. Orders accordingly. **Ruling dated and signed at Kisumu, and read on this 9th day of July, 2026, virtually, through Microsoft Teams online application.** **E. ASATI,** **JUDGE.** **In the presence of** Atika - Court Assistant. Wangalwa for the Plaintiffs/Applicants. No appearance for the Defendants/Respondents.