https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3815

Odhiambo v Ogwang’ alias Oketha (Land Case E005 of 2026) [2026] KEELC 3815 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3815 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Land Case E005 of 2026 E Asati, J June 18, 2026 Between Newton Lee Odhiambo Plaintiff and Joshua Ouma Ogwang’ alias Oketha Defendant Ruling 1.The application before court for determination is the notice of motion dated 18th February, 2026. It seeks orders of temporary injunction restraining the respondent from interfering with the land parcel known as Kisumu/Wawidhi A11/1585 pending hearing and determination of the suit. 2.The grounds upon which the application is brought are that the applicant is the legal and registered owner of the suit land, that the respondent has encroached onto the suit land and is in the process of erecting a permanent structure thereon. 3.That the respondent has stationed individuals (goons) on the property who intimidate, harass and attack anyone attempting to access the land, including the applicant and his agents. That the respondent’s actions are ongoing and unless restrained, will occasion further irreparable loss and damage to the applicant. 4.The application was supported by the averments in the supporting affidavit sworn by Newton Lee Odhiambo, the applicant, on 18th February, 2025 and the annexures thereto. 5.The application was opposed vide the averments in the replying affidavit sworn by the respondent Joshua Ouma Ogwang on 23rd February 2026 and the annexures thereto. 6.The respondent’s case is that his activities are confined within his land parcel number Kisumu/Wawidhi A II/831. 7.The substantive relief sought is an order of temporary injunction pending hearing of the suit. 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. 8.In the case of Giella vs Cassman Brown Co. Ltd (1973) 358 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. 9.The applicant has exhibited a copy of the title deed showing that the suit land belongs to him. His ownership of the suit land is not contested. Although the respondent claimed that his activities are confined within his land parcel No. Kisumu/Wawidhi A II/831, a copy of the Surveyor’s Report exhibited by the applicant dated 17th June, 2025 established that the owner of land Parcel No. Kisumu/Wawidhi A II/831 had encroached onto the suit land on the eastern side. No evidence has so far been exhibited to rebut the surveyor’s report. 10.In Mrao Ltd vs First American Bank Kenya Ltd & 2 Others [2003] eKLR, the Court of Appeal held that:“A prima facie case in a 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.” 11.In the present case, the applicant’s proprietary right as a registered owner of the land encroached upon is threatened with further violation. 12.I find that a prima facie case with a probability of success has been demonstrated and that application has merit. The application is hereby allowed as follows:i.An order of temporary injunction is hereby granted restraining the Respondent by himself or his agents from accessing, destroying, altering, further developing, constructing, alienating and/or in any manner adverse to the rights of the applicant over land parcel Number Kisumu/Wawidhi A II/1585 pending hearing and determination of the suit.ii.Costs of the application shall be in the main suit.Orders accordingly. RULING DATED AND SIGNED AT KISUMU, READ THIS 18TH DAY OF JUNE, 2026, VIRTUALLY, THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATIJUDGEIn the presence ofAtika - Court Assistant.Cheruiyot h/b for Juliet Dima Advocate for the Plaintiff/Applicant.Abande for the Defendant/Respondent.