https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3223

Odhiambo v Awino (Environment and Land Case 051 of 2025) [2026] KEELC 3223 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEELC 3223 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Case 051 of 2025 FO Nyagaka, J May 25, 2026 IN THE MATTER OF: LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA AND IN THE MATTER OF: A CLAIM FOR ADVERSE POSSESSION PURSUANT TO SECTION 38 OF LIMITATIONS OF ACTIONS ACT AND IN THE MATTER OF: LR NO. KANYADA/K/KALANYA/5252 Between Monica Akoth Odhiambo Plaintiff and Francis Okech Awino Defendant Ruling The Application 1.The Applicant filed a Notice of Motion dated 23rd August 2025. She brought it under Certificate of Urgency. She relied on Order 40 Rules 1, 2A and 9 and 51, Rules 1, 2 and 3 of the Civil Procedure Rules, 2010, Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act, Section 68 of the Land Registration Act, Section 150 of the Land Act, Sections 13 and 19 of the Environment and Land Act and Article 159 (2) (d) of the Constitution, 2010. She sought orders that:a.…Spentb.…Spentc.Pending the hearing and determination of the instant suit, the Honourable Court be pleased to grant an order of injunction restraining the Defendant/Respondent either by himself, agents/servants from entering upon, selling, evicting, trespassing onto and/or otherwise interfering or dealing howsoever with that parcels of land known as LR No. Kanyada/K/Kanyango/5252 measuring 0.06 Ha.d.Costs of this Application be borne by the Defendant/Respondent.e.Such further and/or other orders be made as the court may deem fit and expedient. 2.The application was anchored on the grounds outlined on its face as well as the Supporting Affidavit of Monica Akoth Odhiambo, the Applicant. She contended that she had at all material times been in occupation and use of that parcel of land known as LR. NO Kanyada/K/Kanyango/5252 measuring 0.06Ha, henceforth referred to as “the suit property”. She stated that Respondent was the registered proprietor of the suit property. She maintained that his title to the land had been extinguished by her adverse occupation thereon for a period exceeding 12 years. She added that the fact of her occupation of the suit property was well known to the Respondent. 3.The Applicant maintained that the Respondent had been threatening to evict her from the suit property hence she feared her property would be damaged in the event of eviction. Moreover, she stated that the Respondent was on the verge of the disposing the suit property to a third party in his attempt to evade justice. 4.The Applicant states that her rights over the suit had since crystalized by the fact of her occupation of the suit property. She maintained that she would suffer irredeemable loss should the injunctive orders she sought be not granted. She also contended that this court is enjoined to vindicate and/or protect her rights. Further, she was likely to suffer substantial loss should the relief sought not be granted. She also prayed that the application be allowed ex debitio justiciae. 5.The depositions in the Supporting Affidavit replicates the contents of the application save that they add that her occupation of the suit property begun in the year 2003. She also deponed that the occupation has been without interruption and despite his knowledge of her occupation, the Respondent had never raised a complaint over the same. 6.The Applicant attached several annexures to the Supporting Affidavit. They included a copy of the certificate of official search of the suit property, photographs of the plaintiff’s alleged rental houses erected on the suit property, a photograph of a pit latrine, a copy of a photograph showing a fenced off portion of the suit property and a copy of a Demand Notice requiring the Applicant to vacate the suit property. Response 7.The Respondent filed a Relying Affidavit dated 30th September 2025. He deponed that he was he registered owner of the suit property. He annexed a copy of the same certificate of official search as that which the Applicant annexed to her affidavit. He also stated that suit property had been the subject of a litigation in Migori ELC No. 34 of 2017 wherein he had sued one John Nyambok Awino who constructed and rented the premises. He attached a copy of the judgment in the said suit. But he never attached photographs of the rental premises the defendant then built on the land. 8.On the strength of the above stated judgment, the Respondent deponed that the Applicant was a busy body purporting to lay a claim over land whose issues had been litigated over and determined. He deponed that the instant suit was res judicata and it offended Section 7 of the Civil Procedure Act. Accordingly, he stated that the proceedings herein were barred by law. He added that they were null and void. 9.Further, the Respondent deponed that the Applicant did not give any ground report as required by law. Also, she had not demonstrated the computation of time. 10.It was the Respondent’s contention that the Application had not met the threshold established in Giella v Cassman Brown [1973] EA 358. He also stated that the suit property formed part of his father’s property. He maintained that the Applicant was not a beneficiary of his late father’s Estate and she had never occupied any portion of the suit property as alleged. 11.The Respondent deponed that the suit property was registered in the year 2018 and twelve (12) years had not elapsed from the date of registration. As such, no claim on adverse possession could be lodged when the time frame mandated by Section 37 of the Limitation of Actions Act had not lapsed. Accordingly, the Respondent maintained that the suit herein was incompetent and mischievous. 12.The Respondent deponed that he stood to suffer prejudice should the Applicant’s application be allowed without an order for security for costs and mesne profits. On the flip side, he deponed that the Applicant would not suffer any prejudice should the orders not be granted. The Respondent deponed that one JOHN NYAMBOK AWINO filed an application in court over the suit property challenging the judgment the court in MIGORI ELC Case No. 34 of 2017. It was dismissed. He annexed to the affidavit the said ruling. He added that the Applicant ought to have challenged the proceedings in the aforestated case if indeed she was in occupation of the suit property. 13.Finally, the Respondent deponed that litigation must come to end, and maintained that the instant suit amounted to abuse of court process hence it should be dismissed with costs. Submissions 14.The application was canvassed by way of written submissions. The Applicant filed her submissions dated 23rd September 2025. She identified one issue for determination, being, whether the Applicant had satisfied the test/ conditions for the grant of the injunctive orders sought. 15.The Applicant submitted that the test/conditions to be met before an injunction is granted by courts were as set out Giella v Cassman Brown & Co. Limited [1973] EA 358. He submitted that the Applicant must prove that he has a prima facie case with a probability of success, demonstrate that he will suffer irreparable loss that can be adequately compensated by way of damages, and if the court is in doubt, determine the case on a balance of convenience. 16.On the question of the prima facie case, the Applicant submitted that she had annexed evidence demonstrating her occupation of the suit property, including buildings erected on the said land. She added that the Respondent intended to dispose the suit land. 17.Concerning the second limb of the test in Giella v Cassman Brown, the Applicant submitted that the Respondent would proceed and effect his threat by disposing the suit property and evicting the Applicant therefrom. This loss the Applicant submitted, cannot be compensated by way of damages. He relied on Mbuthia v Jimba Credit (sic) to submit that courts usually grant injunctions to protect parties’ interests in land matters. 18.Finally, the Applicant submitted that her assertion that she has been in open, continuous occupation of the suit property had not been controverted by the Respondent. She also submitted that a party claiming an interest in land should be given an opportunity to be heard, considering that land matters are sensitive in nature. She equally submitted that the court should, at this interlocutory stage, preserve the substratum of the suit so that the suit is not rendered nugatory. 19.The Applicant concluded her submissions by arguing that she had satisfied all the conditions necessary for the grant of injunctive relief. 20.The Respondent filed his submissions dated 12th October 2025. 21.At the very outset, I must state that the Respondent’s submissions were not edited as they contained numerous typographical errors and were jumbled up. In the circumstances, the court can only try the best it can to decipher what the Respondent was communicating in the said submissions. But that is sad because as stated often, whether filing or presenting pleadings or submissions parties should be very deliberately thorough in clarity and coherence. It is the hallmark of the legal profession but it appears that some parties just opt to do a shoddy job and leave it to courts to sort out their mess. 22.The Respondent submitted that the Respondent’s suit is res judicata. Despite his long incompressible submission on this heading, he did not demonstrate or show how the instant suit is res judicata given that the suit referred to in relation to that argument was between different parties from those herein. In any event the subject was different also. 23.On the question as to whether the Applicant had demonstrated a prima facie case, the Respondent submitted that Applicant’s suit amounted to a collateral attack on a valid judgment. He submitted that the Applicant’s act of seeking an injunction was tantamount to preventing the registered owner from enjoying his land. This, he submitted, was against the very rationale behind injunctions which should be granted to protect property. 24.On irreparable harm, the Respondent submitted that in as much as the Applicant claims that she had built rental units on the suit property, her mere occupation and construction of the said structures does not confer her ownership of the suit property. He submitted further that the said occupation did not entitle the Applicant to claim adverse possession over the suit property, observing that she was claiming against a title registered in 2018. He emphasized that 12 years had not lapsed since the alleged occupation. Further, he would suffer irreparable harm should he restrained from utilizing his land. He also submitted that equity cannot be invoked to protect illegal trespass. 25.Lastly, the Respondent submitted that balance of convenience titled in his favor and reiterated that the court should not use its equitable jurisdiction to protect a trespasser. The Respondent concluded that the Applicant had not satisfied the conditions for grant of injunctions and prayed that the application be dismissed with costs. Issues, analysis and determination 26.The issues that arise for determination in the instant application are: whether the Applicant’s suit is res judicata; whether the Applicant has met the conditions for grant of a temporary injunction; and, who should bear the cost of the application. Whether the Applicant was a busy body due the suit being res judicata as alleged. 27.The Respondent deponed that the Applicant’s suit is res judicata and annexed the judgment and a ruling in Migori ELC NO. 34 of 2017, arguing that the Applicant was a mere busy body. The res judicata principle is provided in section 7 of the Civil Procedure Act which provides that:No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court 28.I have analyzed the instant suit as well the judgment and ruling in Migori ELC Case no. 34 of 2017. It is my finding that the suits are different for a number of reasons. The first one is that in Migori ELC case no. 34 of 2017, the Applicant was not a party. On the contrary, the Land Registrar and John Nyambok Awino were parties (defendants) in the suit which was brought by the plaintiff. The subject matters in the two suits are partly, and completely, different. To be clear, in Migori ELC No. 34 of 2017, the Respondent herein sought the cancellation and rectification of the land register so as to reflect the mode of distribution provided in the Confirmed Grant of representation. But in the instant suit, the Applicant seeks to acquire the suit property by way of adverse possession. Those subjects are diametrically different from each other. For these reasons, the instant suit cannot be said to be res judicata MIGORI ELC CASE NO.34 of 2017. The Applicant is not a busy body but a bona fide claimant in relation to occupation and use of the suit property. With regard to whether her claim is merited or not, particularly, regarding the length or period of occupation, it is my view that that is a matter of evidence to be adduced at the trial. To decide on it at this stage would be premature and improper. Whether the Applicant has satisfied the conditions for grant of temporary injunction 29.Having settled the argument on whether the suit is not res judicata, the next issue id whether the applicant has satisfied the requirements for the grant of an injunction. The law temporary of injunctions is provided for in Order 40 of the Civil Procedure Rules, 2010. Rule 1 thereof provides that: 1.Where in any suit it is proved by affidavit or otherwise— a.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; orb.that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. 30.The principles governing the grant of injunctions were elaborated in Giella v Cassman Brown [1973] EA 358, where the court established that party seeking an injunction should fulfil three conditions, namely:a.The Applicant must establish his case at the prima facie level;b.The Applicant should demonstrate that he stands to suffer irreparable harm/injury, which cannot be remedied by way of damages; andc.If the court is in doubt concerning the above two stated conditions, the balance of convenience should tilt in favor of the Applicant. 31.In Mrao Limited v the First American Bank of Kenya & 2 others [2003] KLR 125, at paragraph 17, the Court of Appeal defined a prima facie case in the following terms:‘‘In civil cases it is a case in 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’’. 32.In Pius Kichirchir Kogo V Frank Kimeli Tenai [21018] eKLR, Ombwaya, J noted that ‘‘a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed.’’ 33.Irreparable injury was defined in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) as loss that cannot be remedied by way of damages. Similarly, the court in re estate of Magdalena Kabon Sawe (deceased) Succession Cause E 034 of 2023 [2024] KEHC 9228 (KLR), while placing reliance on the Halsbury’s laws of England and held that:‘‘...by irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages, an injunction may be granted, if the act in respect of which relief is sought is likely to destroy the subject matter.” 34.What constitutes ‘‘balance of convenience in favour of the plaintiff’’ was expounded by the court in Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR the court established that:The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed... 35.The ourt of Appeal Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) clarified that the issue of balance of convenience only arises where there is doubt as the adequacy of the respective damages available to either party, such that the court must balance the inconvenience to either party if an interlocutory injunction is granted or otherwise denied. 36.In the same Nguruman decision (supra), the Court of Appeal held that the conditions established in Giella v Cassman Brown (supra) should be surmounted separately and sequentially, and that if, say, a prima facie case is not established, the court should not proceed to evaluate the other conditions set out n the test. Thus, the court held that:These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the Applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the Respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the Respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the Applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the Applicant to injunction directly without crossing the other hurdles in between. 37.I have carefully analyzed the application, the response thereto, the submissions and the applicable law. The Applicant stated that she has been in occupation and use of the suit property since the year 2003, which period she states is more that the 12-year limitation period provided in the Limitation of Actions Act for one who is the owner to recover his land. She also stated that her occupation and use of the suit property is now threated by the Respondent who had issued a notice of eviction and was intent on selling it to another party. She had annexed to the to supporting affidavit a copy of the Demand letter which, upon perusal, the court confirms that it indeed calls on her to vacate the suit land. 38.Again, in the Respondent’s submissions, he argues, contrary to his depositions, that the applicant is a mere trespasser on his land. These two facts of issuance of the demand letter and also of allegations of trespass confirm that indeed the applicant is in occupation of the suit land. The Respondent, as some other parties always err, is underrating the intelligence of the Court, and it is sad. One cannot abate and reprobate by swearing falsely that a party is not in occupation when he has at the same time issued a written notice that the party vacates. Wherefrom is the party to vacate other than the suit land? So, if that is the case, is the Respondent not a liar who commits false swearing deliberately and should be charged under the law? 39.I am of the humble view that the Respondent is a suspect who should be investigated and charged, with the appropriate offences. I emphasize this call for the office of the Director of Criminal Investigation to be called upon to take up this matter of direct lies on oath because, even besides the instant application there is evidence that the Respondent lied falsely earlier before this court, before my brother Justice Ongondo regarding the instant title. This is because when one John Nyambok Awino applied to set aside the Judgment in ELC. No. 34 of 2017 the Respondent swore falsely that the judgment had been fully executed hence there was nothing to set aside. What content was of the judgment of 15th February 2018? It is that one of the reliefs was that the title in issue herein, parcel No. LR No. Kanyada/K/Kanyango/5252 was to be cancelled. He stated that the judgment was already perfected. That was way back on 3rd April 2024. He stated that the judgment was executed long before and the Estate distributed. Does it mean that the title was processed again in the same numbers as had been cancelled? If so, then he did not mislead the court. But if not, then the Respondent misled the court deliberately on oath and should be punished accordingly. 40.That aside, the applicant maintained that the Respondent was intent on disposing off the suit property hence exposing her to the risk of eviction and eventual destitution. She also feared that her property, which included structures erected on the suit property, may be demolished in the course of the intended eviction. The Applicant annexed photographic evidence to demonstrate her alleged occupation and use of the suit property. 41.The Respondent denied on the other hand denied that the Applicant is in occupation and use of the suit property. As I have stated above that was contrary to the demand notice and his submissions. The applicant was in occupation. In his replying affidavit, the Respondent raised the issue of the suit being res judicata, which issue I have already determined above. He also submitted that the Applicant had not demonstrated the time computation of her alleged occupation of the suit property, which issue I have found to be prematurely raised. Besides, he maintained that the Applicant’s suit was not tenable as she has annexed any ground report of the suit property as required by law. I know not of any such report. The Respondent maintained that the Applicant was a mere trespasser who was liable to pay mesne profit for the alleged trespass. All these are issues that this court finds not to hold water in regard to the response as to whether the prima facie case has been established. 42.Therefore, as to whether the Applicant has proved a prima facie case, I note the applicant has annexed photographs of her annexed occupation of the land, including buildings of which she says are her rental units. Although the Respondent denied that Applicant’s occupation of the suit property in his Replying Affidavit, I have also noted that besides evidence of the said photographs, the Respondent issued a demand notice to the applicant and the stated in his submissions that she was a trespasser to the suit property. The Respondent has not denied that the structures were put up by the Respondent, and on his property from which he demanded that she vacates. He submitted that the Applicant trespassed into the suit property and the alleged trespasser has not met the 12-year threshold set by the limitation of actions act for claims on adverse possession. These discrepancies regarding the Respondent’s evidence, which discrepancy casts doubt on his credibility and confirm the applicant’s position on occupation of the suit property. It is my finding that the Applicant has established, on a balance of probability that she is in occupation of the suit property, which is registered in the name of the Respondent and thereby established a prima facie case. 43.On the question of irreparable harm that may not be compensated by way of damages, it follows that, the Applicant having invested in on the suit property, is likely to suffer loss that may not be compensated by way of damages. The court notes the structures erected on the suit property now form part of the said land and the same need to be protected pending the hearing and determination of the suit, by way of injunction. If they are not, the Respondent who has already issued a demand notice may move and destroy them thereby occasioning the Respondent irreparable loss no capable of compensation by damages because to restore the tenants back to the premises my not be possible and in time if their tenancies are destroyed. 44.As to the issue of the balance of convenience, the court is not in doubt as to the question of prima facie case and irreparable harm. Even so, the Applicant having established that she is in occupation of the suit land and has some economic activities going on the said land, the balance of convenience tilts towards granting the injunction sought. 45.The upshot of the foregoing is that the Applicant has established the conditions for grant of temporary injunction and the same is hereby granted as prayed in her application. 46.On costs, they follow event: the Respondent has lost the application. He shall pay them. 47.This matter shall be mentioned for compliance with Order 11 of the Civil Procedure Rules by the filing of trial bundle in thirty days. Mention on 7th July 2026. 48.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 25TH DAY OF MAY 2026.HON. DR. IUR NYAGAKAJUDGEFrom 11:31 AM, in the presence ofMr. Omuthe for the ApplicantMr. Kirianki holding brief for Nyambati for the Applicant