https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4683

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT HOMA BAY COUNTY** **COURT NAME: HOMABAY ENVIRONMENT AND LAND COURT** **ELCOS/E068/2025** **RUTH ATIENO OWUOR………….…………..PLAINTIFF/APPLICANT** **VERSUS** **RICHARD OTIENO BABU………………………………..RESPONDENT** **RULING** 1. On 19th September, 2025 the plaintiff/Applicant instituted a suit by way of Originating Summons where he sought for an Order, on behalf of the Estate of the Deceased husband for: 1. An Order that the Applicant has acquired title to a portion of land parcel Kanyamwa / Kachola / Kadwet / 658 measuring 2 Acres by adverse possession. 2. An Order of Injunction 3. An Order directing the Registrar of Lands, Homa Bay Registry to register her names as proprietor. 4. A vesting Order. 5. Costs. 2. On 27th October 2023 the plaintiff filed an application seeking for Injunction in terms of prayer 2 and 3 of the application. The application is based on the Seven (7) grounds while the supporting affidavit contains Seven (7) paragraphs. 3. The applicant states that she has been chased out of the two (2) acres that her husband bought from the respondent’s father. That it is known that she is utilizing two (2) Acres. That the Respondent has since cultivated the entire land. Lastly, that the Respondent who is the personal representative of deceased has refused to give her the rightful share. 4. The directions were given by the Court on 29th October 2025 and on 18th November 2025 and order of status quo was granted. The Court then made further directions as to filing submissions of on 18th November 2025 with leave to the respondents to file a response within Seven (7) days. The Court on 3rd April 2026 fixed the matter for ruling which is 10th July 2026. **COMPLIANCE** 1. On 19th November 2025 Counsel for the Defendant filed a replying affidavit. He states that there has been a long history of litigation over the suit property, the 1st one being Ndiwa SPMCL Succession number E28 of 2022 where he was asked to take out letters. That in the Citation Cause she approached Court solely because of a sale agreement. That in the Citation there was no agreement about using the land. 2. The Defendant states that when the Plaintiff/Applicant launched a substantive succession cause at Ndiwa as Succession Cause No. 120 of 2022, the applicant filed an Objection which was dismissed. She proceeded to file an application for review through the firm of Obach which was equally dismissed. That in the current suit she is seeking to enforce the same old agreement. 3. The Defendant/Respondent further depones that in the new ELC case at Ndhiwa she once again made allegations of possession and use of the suit property. The interim Orders sought at Ndhiwa were not granted. She withdrew the said case and filed the present suit for adverse possession. That she has not been in possession for 19 years and photograph used at Ndhiwa related to then use of property. Lastly, that the Applicant has obtained favour from the Chief. 4. To support her case, Defendant/Respondent has attached the following documents; Search Certificate, Grant of Letters of Administration, Citation to refuse to accept Letters, Grant of Letters of Administration, Sale agreement dated 10th September 1997, Objection to issuing a grant, Order in respect of the Citation, affidavit Sworn by Babu Omusi Confirming Sale of 2 Acres and application filed under Certificate of Urgency. **SUBMISSIONS** 1. The Applicant's Advocate filed Submissions on 14th January 2026 and filed in court on 16th January 2026. He addressed a single issue on whether the application has met the threshold. He submits that the applicant's husband entered into a land that she has been cultivating to the exclusion of the Respondent, until she made efforts to have the Respondent to transfer the land to her, where he became hostile, unlawfully removing her and her agents from the suit parcel and even destroyed Crops therein. 2. The Applicant relies on the Case of **AMIR SULEIMAN V AMBOSELI RESORT LIMITED (2004) KLR, CHARLES CHERUIYOT MOSONIK V GEOFFREY NGENO 2018 eKLR and Giella Versus Cassman Brown.** 3. On the other hand, the Defendant / Respondent's Counsel filed his submissions dated 27th November 2025, and addresses the same issue but differently whether the Applicant is deserving of a temporary injunction. Counsel refers to **Giella versus Cassman Brown & Company Limited, Mrao Limited v First American Bank of Kenya, Mwaura versus KIBI, Mgunumo Limited versus Jan Bonde Nielson & 2 Others, and lastly, Jasbir Singh Rai & 2 Others V Tarlochan Singh & 4 Others** 4. In Summary, the Authorities referred to by both Counsels address the principles for granting or refusing an Injunction which include; 1. A party must show a *prima facie* case with a probability of success. 2. An Injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury. 3. When the Court is in doubt, it will decide the application on a balance of convenience. 4. Further, the party on whom the burden of proof lies must show a clear and unmistakable right to be protected which is directly sought to be restrained. (**see Nguruman Limited versus Jan Bonde Nelson**) **DETERMINATION** 1. From the application and replying affidavit submitted, the issue for determination is whether the Applicant has met the conditions/ principles set out in the decisions where the Court was faced with a similar issue. 2. In considering the above principles, the court should also bear in mind that that temporary injunctions are discretionary orders and that the court should not attempt to resolve issues related to the main suit: See: **Prof. Peter Anyang Nyongo & Others Vs the Attorney General of Kenya & Others; East African Court of Justice Case Ref. No. 1 of 2006 (unreported).** 3. The law on temporary injunctions is contained in **Order 40 rules 1,2 and 3 of** the **Civil Procedure Rules**. The principles governing the grant of a temporary injunction are now well settled. For example, in the case of **American Cyanamid Co. Vs Ethicon Ltd [1975] AC 396** Lord Diplock laid down guidelines for the grant of temporary injunctions that have been followed in the Kenya which are * 1. The applicant has to show that he has a *prima facie* case with a probability of success in the main suit. 2. The applicant has to show that he is likely to suffer irreparable damage if the injunction is denied. 3. If court is in doubt as to the above considerations, it will decide the application on a balance of convenience 4. Those principles were set out in **East African Industries vs. Trufoods [1972] EA 420 and Giella vs. Cassman Brown & Co. Ltd [1973] EA 358. In Nguruman Limited vs. Jan BondeNielsen & 2 Others [2014] eKLR** the Court of Appeal restated the law as follows: “…**In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a) establish his case only at a prima facie level, (b) demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. 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.) 1. In considering the above principles, the court should also bear in mind that that temporary injunctions are discretionary orders and that the court should not attempt to resolve issues related to the main suit: See: **Prof. Peter Anyang Nyongo & Others Vs the Attorney General of Kenya & Others; East African Court of Justice Case Ref. No. 1 of 2006 (unreported).** 2. I now proceed to consider the abovementioned principles Courts consider when granting a temporary injunction as here below: - 1. **Prima Facie Case with a probability of success.** with regard to the 1st principle whether there has been established a prima facie case with a probability of success, the Court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. ***(See American Cynamide versus Ethicon [1975] ALL ER 504).*** 3. The matter before this Court concerns land which was sold to the Applicant’s husband, Owour Asienyo, but failed to effect transfer despite several attempts from the husband, until his demise rendering the agreement void. The case before me is that the Applicant has been on the suit land for14 years and has farmed on the land uninterrupted against the interest of the Respondent. 4. The Applicant has attached a sale agreement, chief’s letter, crop damage valuation report, O.B report and photographs in support of her case. Her above allegations have been strongly countered by the Respondents who attempts to deny the issues raised by the Applicant. In the pleadings. 5. At this stage, the Law does not require Court to delve into the merits of the main suit. All that is required to be proved is that there is a serious issue to be tried by Court and that, that issue is neither frivolous nor vexatious. 6. **The applicant will suffer irreparable injury which cannot be atoned for by award of damages**. Irreparable injury does not mean that there must not be physical possibility of repairing the injury but means that the injury must be a substantial or material one that is one that cannot be adequately compensated for in damages. 7. **In Joseph Siro Mosioma vs. Housing Finance Company of Kenya Limited & 3 Others [2008] eKLR, Warsame, J (as he then was) held as follows: - “...damages is not automatic remedy when deciding whether to grant an injunction or not. Damages are not and cannot be substituted for the loss which is occasioned by a clear breach of the law, in any case, the financial strength of a party is not always a factor to refuse an injunction. More so a party cannot be condemned to take damages in lieu of his crystalized right which can be protected by an order of injunction…** 8. I note that the applicant has invested heavily in the suit property as demonstrated by the documents filed in this matter. There is evidence of interference by way of destruction of sugar cane crops and if the Respondent continues unabated their substratum of litigation may be affected substantially. Thus, this Court should not sit back and watch as the situation goes amiss. 9. **Granting an injunction on the balance of convenience.** It is trite law that if the Court is in doubt on any of the above two principles, it will decide the application on the balance of convenience. The term balance of convenience literally means that if the risk of doing an injustice is going to make the applicants suffer then probably the balance of convenience is favorable to him/her and the Court would most likely be inclined to grant to him/her the application for a temporary injunction. 1. If the applicant fails to establish a prima facie case with likelihood of success, irreparable injury and need to preserve the status-quo, then he/she must show that the balance of convenience was in his favour. 2. I note the Applicant is currently in occupation of the subject property where she occupies 2 Acres. The applicant states that her husband purchased 2 Acres , that she has been utilizing the same for over 14years , that was known to the Respondent and the entire family of the deceased that the Respondent's action are malicious with a bid to defraud and disinherit her . 3. In **Chebii Kipkoech vs. Barnabas Tuitoek Bargoria & Another [2019] eKLR, balance** of convenience was defined as follows: - **“…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 them would be greater than that caused to the defendants if an injunction is granted and suit is ultimately dismissed...”** 4. Putting all the facts into perspective, I note that the balance of convenience favours the Applicant who has been in occupation of the subject matter for over 14 years. Allowing the Respondent to move out of her residence will cause grave injustice as she will be rendered homeless. 5. The Applicant states that the Respondent is the personal representative of the Deceased and has refused to give the Applicant her rightful share 6. Having considered submissions of the Applicant visa vis the Respondent’s submission and evidence on record, I find that there are triable issues raised by the Applicant. 7. In the same vein, the respondent has raised issues which need to be determined in the main suit. In my opinion the two contrasting and aggressive positions taken is enough to give rise to serious triable issues for adjudication since the Applicant is facing a threat of eviction from the suit land by the Respondent and the main suit is still pending before me for determination. 8. I must say that the applicant has prima facie established in her pleadings and the submission, the said three principles cited hereinabove in this ruling. This application, therefore, ought to succeed. **CONCLUSION.** a) In the result and for the reasons given hereinabove in this ruling this application has merit. b) I hereby issue an order of injunction restraining the Respondent, his agents, servants and or employees from disposing, alienating, transferring, leasing and or in any other way interfering with Land parcel number KANYAMWA/KAJWANG/KACHOLA /KADWET /858 measuring 2 Acres being utilised by the Applicant pending the hearing and determination of the suit c)Costs in the costs d)The order of injunction shall be in force for a period of 180 days within which period this matter ought to heard and determined Ruling dated and delivered at Homa Bay this 10th day of July 2026. **In the presence of;** 1. Ngani holding brief for Adoyo for the respondent - present 2. Obach for the applicant – present 3. Ms. Mercy Awino – court assistant – present **JUSTICE J. W WANYONYI- JUDGE** **10.7.2026**