https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5349

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY **ELC LC NO. E013 OF 2026** **RULING.** DANIEL OGEDHO ……………………………………………..…. PLAINTIFF VERSUS GILBERT OTIENO …………………….….………………….1ST DEFENDANT MARIUS OTIENO ………………………...……………….2ND DEFENDANT GEORGE OTIENO……………………….………………….3RD DEFENDANT 1. **BACKGROUND** 2. This suit was commenced by way of Plaint dated 27th March ,2026 seeking for inter-alia: 3. **A declaration that the grandchildren of Bwana Ogedho are** **all entitled to Parcel number 481 in Kayambo Kwamo Sheet** **number 8 and Parcel number 539 and 540 in Kayambo** **Kwamo sheet No 14 the same being their ancestral land.** 1. **An injunction restraining the defendants from entering,** **remaining in, selling, charging, leasing or in any other** **manner is adverse to the interests of the named beneficiaries** **c) Costs of the suit** **2.** The suit was filed together with the application dated 27th March ,2026 under certificate of urgency and the court gave directions for disposal of the application. **3.** The application dated 27th March ,2026 is brought under Section 3A and 63(e) of the Civil Procedure Act CPA and Order 40 Rule 1 and 2 Civil Procedure Rules seeking for: **(1) Spent** **(2) Spent** **(3) The defendants by themselves, their agents, employees** **, and any other person acting on their instruction from** **entering, remaining in, charging, leasing, or in any other** **manner dealing with that property known as Parcel Nos.** **481 in Kayambo Kwambo Sheet No. 8, Parcel number** **539, 540 Kayambo Kwambo Sheet No.14 in any manner** **adverse to the interests of Daniel Ogedho Bee, Maurice** **Bee Akama, Joseph Mboya, Thomas Fredrick Otieno Bee,** **Francis Polycarp Bee, Benard Bwana Bee, Felix Bee Akama, Evans Bwana Bee, Geoffrey Ouma Oloo, Baraka Odallo, Walter Ogutu, Zachary Ooko Bee, Packom Kizito Bee pending the hearing the suit.** **(4) Costs of this application be provided for.** **5.** The application is premised on the grounds and supporting affidavit of Daniel Ogedho Bee. **6.** The supporting affidavit contains 31 paragraphs detailing the issues stated in the grounds raised. **7.** In sum the Applicant states thus: a) That the Defendants are grandchildren of Bwana Ogedho who died sometimes in 1997 before conclusion of the Adjudication process. b) That the Applicant is the son of Ernest Bee Akama and a grandchild of Bwana Ogedho. c) That the entire property constituting parcel numbers 481, 482, 484, 488 Kayambo Kwambo Sheet No. 8 and parcel Nos. 539, 540 Kayambo Kwambo Sheet No. 14 are all pieces of ancestral onto the family from one generation to another. d) That Bwana Ogedho had two daughters namely Awino and Adoyo. e) Awino had two children namely Airo and Obonyo – who are Deceased but are survived by sons, daughters, and grandchildren. 1. Adoyo has three sons namely: 2. Leonardus Otieno Bwana 3. Edward Oginga 4. Chrisphine Ochieng Oginga 5. The above are all entitled to land as descendants. 6. Before his demise, Bwana Ogedho apportioned the land as follows: 7. Ernest Bee Akama – Parcel number 488 Sheet No. 8 8. Leonardus Otieno – Parcel No. 484 Kayambo. 9. Tobias Oloo – parcel number 481 and part of 482 Kayambo Kwambo sheet 8. 10. Gilbert Okeyo Otieno (son of Leonardus) – Apportioned part of Parcel 478 – Kayambo sheet No5. 11. Walter Ogutu Bee – Eldest son of Bwana Ogedho was not given anything 12. In total the grandchildren of Bwana Ogedho that were directly given a portion are: 13. Gilbert Okeyo Otieno – Parcel 478 Kayambo Kwambo Sheet No. 5. 14. Peter Kwame Bee – Kayambo Kwame sheet number 8. 15. The grandchildren of Bwana Ogedho whose names appear as number 1to 14 are yet to be given their respective portions and they are entitled to portions of plot number 481 in Kayambo Kwamo sheet no8 and parcels number 539 and 540 in Kayambo Kwamo sheet No. 14. 16. That Gilbert Okeyo Otieno has moved to parcel number 481 in Kayambo Sheet number 8 where he has built a home while at the same time claiming Parcel number 540 17. That by moving in he has disregarded the interests of other descendants and stopped the widows of Ernest Bee Akama from cultivating the land 18. That the actions of Gilbert Okeyo Otieno are unfair, unjust and intended to extinguish the rights of grandchildren 19. Gilbert is currently processing titles and there is real danger of the property being sold to third parties 20. That there is a real danger of the Defendants moving into the property **B. RESPONSE TO APPLICATION** 8. In Opposing the application Gilbert Okeyo Otieno swore an Affidavit. 1. He swears under the authority of his two brothers 2. He says all parcels are correct save for Plot number 448 which was given to Peter Kwame Bee 3. He admits the contents of paragraphs 5,6,7,8 ,9 ,11 and 12 4. He says it is not true Tobias was given Plot number 481 and part of 482. 5. Leonidus otieno was given the homestead 6. Children of Ernest Bwana were given Parcel number 539 7. That parcel number 540 is in the name of Leonidas Otieno as the registered owner 8. That it is not true that Gilbert Okeyo Otieno has moved and prepared to cultivate parcel number 540 rather the same was given to Leonidus who is the registered owner 9. it is not true the widows of Leonidus Otieno Bwana cultivated parcel number 540 as theirs but it was their husbands land until their death. 10. The wives of Ernest Bee never cultivated parcel number 540 instead they cultivated number 539 11. All children named are the children of Ernest Bee Bwana who had the right to parcel number 488,492 and 539 12. That Mzee Bwana Ogedho distributed his land to his three sons equally, none was left out The distribution was as hereunder: Parcel number 481, 482, and 539 -Bwana Ogedho: Parcel No. 488 & 492 – Ernest Bee Bwana Part of Parcel 484 and 540 – Leonardus Otieno Bwana Parcel No. 482 and part of 481 – Tobias Oloo Bwana Parcel No. 448 – Peter Kwame Bwana Parcel number 478 – Gilbert Okeyo Otieno The Respondents has annexed search Certificates for Parcel 488 and 482 in the name of Bee Bwana, Parcel number 540 in the name of Marcus Bartholomew Gilbert and George in equal shares That the application is made in bad faith and is a waste of time **C. FURTHER DIRECTIONS** **9. Further** Court Directions were given on 19th May ,2026 Leave was granted to the Applicant to file a supplementary affidavit within ten (10) days, and the Respondent ten (10) days to file Submissions The Applicant filed a supplementary affidavit dated 12th June 2026 outside the period granted The affidavit was filed outside the prescribed period without leave to regularize. I therefore strike out the Applicant's supplementary affidavit for failure to comply with court timelines. **D.** SUBMISSIONS BY THE DEFENDANT / RESPONDENT 10.Submissions were filed by Counsel for the Plaintiff were also filed outside the timelines. They are dated 12th June 2026 but filed on 13th June ,2026. The submissions also suffer the same fate E.DETERMINATION: **11. Flowing from the application and the replying affidavit I** **gather the following issues which are pertinent to the** **determination of this application.** That the Defendants are grandchildren of Bwana Ogedho who died sometimes in 1997 before conclusion of the Adjudication process. It has not been stated whether the administration of the estate has been done and whether distribution is in process. The Applicants assert derivative entitlement within the Bwana Ogedho lineage. That any person registered as owner holds the same in trust. That the defendants have been allocated land save for the Plaintiffs. That the remainder of the ancestral land is yet to be allocated and which is available to the plaintiffs. The Applicants contend that all grandchildren have equal entitlement. The plaintiff seeks preservation of the said parcels in issue The Respondent disputes these claims, and maintains that no destructive activity has occurred. They state that most of the land has been distributed and parties are settled as per the searches produced That the application is made in a bad faith and meant to distribute the property of the deceased. It is against that contested background that the present application falls for determination. 1. ISSUES FOR DETERMINATION 2. i. **Whether the Applicants have established a prima facie** **case with a probability of success; ii. Whether they stand to suffer irreparable injury not compensable by damages; and iii. Where the balance of convenience lies issue** **Issue No.1: Whether the Applicants have established a prima** **facie case** **13**.(1)A prima facie case is one that raises a serious question fit for trial and is not frivolous, as explained in **American Cyanamid** **Co. vs Ethicon Ltd [1975] AC. 396** **Lord Diplock** laid down principles that guide the grant of a Temporary Injunction. On this principle, the Court should be satisfied that the Applicant’s claim is not frivolous or a waste of court’s time. There must be triable issues for consideration by the Court, which raise a prima facie case. The Applicant relies on alleged beneficial entitlement within the lineage of mzee Bwana Ogedho. At this interlocutory stage, the Court is not required to finally determine capacity or entitlement. It is sufficient that the Applicants have raised a bona fide and arguable dispute regarding the entitlement of each grandson, the I am satisfied that the dispute discloses a serious question for trial. The threshold of a prima facie case is therefore met, albeit narrowly. **Issue 2: Whether the applicants will suffer irreparable injury** **14**.Irreparable harm must be such that the Applicant will suffer material or substantial harm that cannot be compensated by damages. See ***Giella vs. Cassman Brown & Co. [1973] EA 358***. 1. *Irreparable damage does not mean that there must not be* *physical possibility of repairing injury but means that the* *injury must be a substantial or material one, that is one that* *cannot be adequately compensated for in damages* 1. The Applicants alleged interference and threatened alteration of the suit land. 1. It has been claimed that the Defendants have invaded a portion reserved for the rest of the grandchildren 1. Land of this nature carries a unique and sentimental value not easily quantifiable in monetary terms. 1. Permanent alteration before trial may occasion prejudice incapable of adequate compensation. 1. However, no evidence in terms of photographs and any supporting document such as a survey report has been availed to support the nature of illegal activities on the ground and there are also no evidence that the Applicant has been in possession of the said portion (VIII) It is admitted that the Defendants and other parties who are not party to this suit are already in possession 1. I therefore find no need to disrupt the existing status quo as it exists currently. **Issue 3: Where the balance of convenience lies** 15. (i) The Respondents are in occupation while the Applicant asserts beneficial interests. 1. The main suit is pending. 2. The purpose of an interlocutory injunction is to preserve the Subject matter so that the Court does not adjudicate in the face of a fait accompli (**see American Cyanamid Co. v Ethicon Ltd (supra)).** 3. Here, the issue is not determination of the legal rights to the property but merely preservation of the property in its actual condition until legal title or ownership can be established or declared. 4. Where the Court is in doubt of the three principles mentioned above, it will determine the application on a balance of convenience. 5. The term balance of convenience means that the court should determine if the Applicant would suffer if the Application were not to be granted. 6. Where refusal to grant the Application would make the Applicants suffer, then the balance of convenience would be favourable to him and the court would most likely be inclined to grant to him the application for a Temporary Injunction. 7. Additionally, the Court must consider where the balance of convenience lies. In other words, where the respective inconvenience or loss to each party lies, if the order is granted or not. 8. Maintaining the status quo does not determine ownership; it merely holds the ring until the parties’ substantive rights are adjudicated. 9. The Court will further consider the circumstances of each case. 10. Having taken into account all the available evidence, I am convinced that there are serious and triable issues in this matter, to be resolved by the Court 11. However, the balance of convenience favours the Respondents who are parties in possession 12. Counsel for the Applicant submitted that if not stopped the Defendants are likely to sell off the suit property, which loss, may not be quantified. This fact has been denied by the Defendants. 13. However, in the court’s view granting the injunction will alter the existing status and may occasion more harm than good to other parties in occupation 14. Further there is no ground status report that has been availed to confirm the respective positions the parties on the ground are currently occupying F. **LOCUS STANDI** 1. The court has been told that part of the property which form the Estate has been distributed while the rest remains though how the distribution was done has not been disclosed. 2. Under the Succession Act, the property of a deceased person vests in the personal representatives upon grant of probate or letters of administration. To this court beneficiaries without such grant ordinarily lack capacity to institute proceedings. 3. I note that the respondent has not challenged the issue of locus and Beneficiaries without such grant ordinarily lack capacity to sue on behalf of the estate us standi. 4. The defence has also not been filed as of now and the court is left groping in the dark as to whether the Defendants harbour an intention of seriously challenging the suit. 5. The court has also not been updated as to whether adjudication is still on or has been finalized 6. However, it is quite clear matters or disputes falling under land adjudication do not strictly speaking require a party to have letters of grant so as to advance claims for and on behalf of deceased estate. 7. Odunga J in [*Republic vs District Commissioner Machakos and another exparte Kakui Mutiso*](https://kenyalaw.org/akn/ke/judgment/kehc/2014/309) (2014) eKLR held under the land consolidation and adjudication processes, the issue before the relevant tribunal is the determination of interests in land rather than individual ownership since individual land tenure only comes into being on registration and before such registration the land in question is either ancestral or falls under communal ownership, where the strict succession legal regime does not apply, since the issue of an estate may not be applicable to ancestral or communal property. 8. Angote J. in [*Peter N. Ngandi & 2 others Vs John Muthomi & another*](https://kenyalaw.org/akn/ke/judgment/keelc/2022/1838) 2022 eKLR took the view that proceedings under the [*Land Adjudication Act*](https://kenyalaw.org/akn/ke/judgment/keelc/2021/3267) do not require one to have letter of administration. **G. Disposition.** **12.**The Applicant, through his Affidavit, has showed that he has an interest in the suit land and if the Respondents are not stopped, the Applicant is bound to lose. 13.I find that in a case like this where the respondents have been in possession of the suit land and the applicant is neither occupying , nor accessing the same, preserving the *status quo* would be preserving the situation as it is, that is the respondents **to** continuing to occupying the land pending the determination of the rights of the parties in the main suit. 14.I find the *status quo* to be in favour of the respondents who are in actual possession of the suit land rather than the applicant. As such, restraining the respondents would alter the *status quo* rather than maintain it. 15. The cases in point is a Uganda Court of Appeal decision in **Godfrey Sekitoleko & Ors V Seezi Mutabaazi & Ors [2001 –** **2005] HCB 80;** where it was held; - ***“The court has a duty to protect the interests of parties pending the disposal of the substantive suit. The subject matter of a temporary injunction is the protection of legal rights pending litigation. In exercising its jurisdiction to protect legal rights to the property from irreparable or serious damage pending the trial, the court does not determine the legal rights to property but merely preserves it in its actual condition until legal title or ownership can be established or declared.”*** 16. It is my finding therefore that the applicants in this application have not led sufficient evidence to warrant a grant of a temporary injunction. **FINAL ORDERS** **17.** I hereby dismiss the application for injunction for the reason that there is doubt as to the actual status of parties in occupation on the disputed land parcels on the ground. Granting an injunction may create conflicts and disharmony 18. I will hold that Respondents do remain in possession of whatever they claim but do halt any subdivision, sale, transfer or erection of permanent structures which have the capacity to alienate/damage or change the *status quo* of that land as at time of suit till the final disposal of the main suit. I so further order. 19**.** In lieu, thereof I grant an order of status quo pending the hearing and determination of the suit. 20. The order of status quo shall be in force for a period of One Hundred and Eighty days (180) days with a view of fast tracking the disposal of this matter. 21. On costs since parties are related there shall no order as to costs the Order sought in this Application. **Ruling, dated and delivered at Homabay on 27th July ,****2026 virtually through Microsoft teams Video Conferencing Platform** **HON JUSTICE J.W WANYONYI** **JUDGE** **27th July 2026** **In the presence of:** 1. Mr. Osoro for the Defendant 2. Omeyo for the Plaintiff (Absent) 3. Daniel Ogedho -Plaintiff **Court: Mention on 21st September ,2026 for compliance.**