https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3644

SDA East African Union (Rianyanchong’i SDA Church) & 4 others v St. Stephen Youth Polytechnic DOK Ekerubo Gietai Catholic Church & 4 others (Environment and Land Case E005 of 2026) [2026] KEELC 3644 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3644 (KLR) Republic of Kenya In the Environment and Land Court at Nyamira Environment and Land Case E005 of 2026 DO Ohungo, J June 16, 2026 Between SDA East African Union (Rianyanchong’i SDA Church) 1st Plaintiff Evans Morara Nyang’Ongo 2nd Plaintiff Richard Rioba Ongubo 3rd Plaintiff George Migwa Ochenge 4th Plaintiff Joseph Kinanga Ondieki 5th Plaintiff and St. Stephen Youth Polytechnic DOK Ekerubo Gietai Catholic Church 1st Defendant Father Paul Nyambane of Kerema Parish Catholic Church 2nd Defendant The County Government of Nyamira 3rd Defendant The County Land Registrar Nyamira County 4th Defendant The National Lands Commission Coordinator Nyamira County 5th Defendant Ruling 1.The Plaintiffs moved the Court through Plaint dated 9th March 2026 in which they averred that the parcel of land known as North Mugirango/Boisanga/1607 (suit property) was donated in the year 1973, set aside and registered as community grazing land. That the suit property was reserved for use by Gietai Community and was never allocated to any private ownership. 2.The Plaintiffs further averred that between 20th to 25th October 2025, the First, Third, Fourth and Fifth Plaintiffs were evicted from the suit property by the Second Defendant using a title owned by the First Defendant claiming ownership of part of the community grazing land. That the eviction was unlawful and was rooted on the First Defendant’s title number North Mugirango/Boisanga/4131 which was non-existent as the parcel was subdivided pursuant to mutation form dated 9th December 2009 resulting into parcel numbers North Mugirango/Boisanga/4682 and 4683 while North Mugirango/Boisanga/4130 was subdivided on the same date into parcel numbers North Mugirango/Boisanga/4684 to 4688. 3.The Plaintiffs further pleaded fraud and trespass and prayed for judgment against the Defendants for:a.A declaration that the process of setting apart parcel number North Mugirango/Boisanga/1607 was illegal for want of the proper procedure.b.A declaration is hereby issued that title for North Mugirango/Boisanga/4130, 4131 and their subsequent subdivisions are illegal.c.An order is hereby issued that the 1st Respondent has no capacity to own property either as a sole proprietor or jointly with any other entity.d.An order is hereby issued cancelling all entries resulting from the setting apart of parcel number North Mugirango/Boisanga/1607 and the same reverted back to its initial registration.e.Subsequent to issuing order number (d) above, an order is hereby issued against the 1st Defendant compelling it to give vacant possession of North Mugirango/Boisanga/1607.f.Permanent Injunction is hereby issued restraining the 1st Defendant either by itself, agents, servants and/or anyone claiming under its name from entering upon, re-entering, trespassing onto, interfering with and/or in any other manner dealing with the suit property that is North Mugirango/Boisanga/1607.g.A declaration is hereby issued to the effect that the process of eviction of the Plaintiffs was illegal for want of proper laid down procedures.h.Special damages for destruction of property following the illegal eviction.i.Mense profits for illegal possession of a portion of a suit land measuring 12 Ha by the 1st Defendant.j.General damages for trespass.k.Award of aggravated damages for psychological, emotional distress and humiliation and torture to the 2nd to 5th Plaintiffs.l.Costs and interest. 4.Together with the Plaint, the Plaintiffs filed Notice of Motion dated 9th March 2026, seeking the following orders:1.That this application be certified as urgent and the same be heard and determined on priority basis.2.That there be a stay of the eviction process pending the hearing and determination of this application.3.That there be a stay of the eviction process pending the hearing and determination of the main suit.4.That the 2nd Defendant/Respondent be stopped from further destruction the property and/or interfering with parcel number North Mugirango/Boisanga/1607 and its subsequent sub-divisions pending hearing and determination of this application.5.That the 2nd Defendant/Respondent be stopped from further destruction the property and/or interfering with parcel number North Mugirango/Boisanga/1607 (the suit land) and its subsequent sub-divisions pending the hearing and determination of the main suit.6.That a declaration is hereby made that the process of eviction is unlawful for want of due process by failure to issue sufficient notice before eviction and in total disregard of the rights of the evictees.7.That the eviction process is illegal for violation of Article 28 and Article 19 (2) of the Constitution of Kenya and section 152 B and 152 G of the Land Act 2012.8.That the Defendant/Respondents to compensate the Plaintiff/Applicants herein for the destroyed property as a result of the illegal eviction process as per the agricultural officer’s assessment report.9.That the Honourable court be pleased to issue any other orders it may deem just and expedient.10.That costs of this suit be provided for. 5.The application is supported by an affidavit sworn jointly by the Second and Fourth Plaintiffs who deposed that the suit property was reserved for the Gietai community as common grazing ground and held in trust by the defunct Gusii County Council. That the deponents were the registered proprietors of parcel numbers North Mugirango/Boisanga/5512 and 199 and that the Defendants colluded and subdivided the suit land and registered the First Defendant in the year 200I without following the laid down procedures for setting apart land held in trust contrary to Section 13 of the Trust Land Act (repealed) and the Section 117 (1) of the repealed Constitution. 6.They further deposed that the Plaintiffs were never served with an eviction notice to give them time to salvage their property before eviction commenced and that the Defendants were destroying property in a very inhumane manner and if the court did not intervene, more destruction could be caused leading to further losses. They also deposed that they had a copy of an affidavit from the Nyamira County Council indicating that the process of subdivision of the suit land was unlawful and that there was need to protect the suit land before the court made a final decision on the issues raised. 7.When the application initially came up for inter parte hearing on 24th March 2026, the Counsels on record informed the Court that there was a related matter being Nyamira MCELC No. E014 of 2026 in which all the parties herein were parties and in which an injunction was granted on 19th March 2026. Since the parties did not agree on how to deal with the two pending cases, the Court ordered that parties address the issue of whether any of the two cases was to be stayed in the responses and submissions. 8.After giving the parties several opportunities to file and serve responses and submissions, the Court gave final directions and timelines on 28th April 2026, with a condition that any response or submissions filed outside the respective timelines would stand struck out. The effect of the orders of 28th April 2026 is that any response or submissions filed in contravention of the said orders is not on record and hence unavailable for consideration. 9.The Fourth and Fifth Defendants opposed the application through Grounds of Opposition dated 7th May 2026 raising the following grounds:1.That the Applicants lack the requisite locus standi to institute and maintain the present Application and suit since they are not the registered proprietors of the suit property known as North Mugirango/ Bosianga/1607 and they have not acquired any lawful proprietary interests thereto.2.That the Applicants’ cause of action is substantially a claim over public land which constitutes a historic land injustice within the exclusive jurisdiction of the National Land Commission by virtue of the express provisions of Article 67 (2) (e) of the Constitution of Kenya, 2010 as read together with section 15 of the National Land Commission Act (Cap. 281, Laws of Kenya) and the enabling provisions under the National Land Commission (Investigation of Historical Land Injustices) Regulations 2017.3.That the issuance of the orders sought in the Application is tantamount to granting the final reliefs sought in the Plaint at an interlocutory stage prior to the hearing and determination of the main suit on merit.4.That the Application is not supported by factual evidence and/or law.5.That the Application is fatally defective, lacks merit and amounts to a complete abuse of the court process. 10.The First and Second Defendants did not file any response within the timelines given on 28th April 2026. On their part, the Third Defendant neither filed a response nor participated in the hearing of the application. 11.The Plaintiffs filed a supplementary affidavit sworn on 12th May 2026 by the Second Plaintiff. He deposed that the Plaintiffs had been evicted from the suit property which was their ancestral land and that the First Defendant filed Nyamira MCELC No. E014 of 2026 against the Plaintiffs herein on 13th January 2026 after entering appearance in this matter on 12th January 2026. That in the said case, the First Defendant herein was seeking eviction of the Plaintiffs herein from parcel number North Mugirango/Boisanga 4131 despite the green card in respect of the parcel having been closed in 2009. 12.The Application was canvassed through written submissions. The Plaintiffs filed submissions dated 13th April 2026 while the Fourth and Fifth Defendants filed submissions dated 22nd May 2026. The First and Second Defendants did not file any submissions within the given timelines. 13.I have carefully considered the application, the affidavits and the submissions. The issues that arise for determination are whether any of the two suits should be stayed and whether the reliefs sought in the application should issue. 14.Section 6 of the Civil Procedure Act provides:Stay of suitNo court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.Explanation.—The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court. 15.There is no dispute that Nyamira MCELC No. E014 of 2026 exists. I have had occasion to peruse the said file through the Case Tracking System (CTS). The case was filed by on 16th March 2026 at 13:49 hours by St. Stephen Youth Polytechnic DOK Ekerubo Gietai, which is the First Defendant herein. There are a total of 21 Defendants in the matter, including the Plaintiffs herein and the Fourth Defendant herein. 16.The case pleaded by St. Stephen Youth Polytechnic DOK Ekerubo Gietai in Nyamira MCELC No. E014 of 2026 is that it was the registered proprietor of parcel number North Mugirango/Boisanga/4131 which was a subdivision of North Mugirango/Boisanga/1607. That the Defendants in the case trespassed on North Mugirango/Boisanga/4131 and commenced construction thereon and that on 9th December 2009 the said parcel was subdivided illegally, fraudulently and through forgery into North Mugirango/Boisanga/4682 and 4683. 17.Consequently, St. Stephen Youth Polytechnic DOK Ekerubo Gietai sought judgment against the Defendants in Nyamira MCELC No. E014 of 2026 for cancellation of all titles arising from subdivision of North Mugirango/Boisanga/4131 and eviction of the Defendants, among other reliefs. 18.A perusal of Plaints in both matters thus reveals that title numbers North Mugirango/Boisanga/4131, North Mugirango/Boisanga/4682 and North Mugirango/Boisanga/4683 are common threads in both cases. So too is the question of their legality. 19.Thanks to CTS, it is now possible to determine with precision the date and time of filing of cases and pleadings. A perusal of the CTS reveals that the present suit (ELCLC No. E005 of 2026) was filed on 9th March 2026 at 18:50 hours and that the First Defendant herein filed Memorandum of Appearance on 12th March 2026 at 10:08 hours. Thus, the present case predated Nyamira MCELC No. E014 of 2026 and St. Stephen Youth Polytechnic DOK Ekerubo Gietai was aware of that position even as it filed the latter case. It was also aware that the issue of legality of title numbers North Mugirango/Boisanga/4131, North Mugirango/Boisanga/4682 and North Mugirango/Boisanga/4683 was also directly and substantially in issue in ELCLC No. E005 of 2026, a previously instituted suit. 20.The head note to Section 6 of the Civil Procedure Act refers to stay of suit. The effect of the provision is that it bars Courts from proceeding with trial of any suit in which the matter in issue is also in issue in a previously instituted suit between the same parties. Another effect of the provision is that an offending suit should not proceed but instead give room to the previously instituted suit. 21.An infraction of Section 6 of the Civil Procedure Act is also curable by other interventions such as consolidation, with a view to hearing and determining the entire dispute at a go. Whenever possible, consolidation is the better option since it ensures efficiency in justice delivery and better use of judicial time. I will order transfer of Nyamira MCELC No. E014 of 2026 to this Court and its consolidation with this case. 22.The next issue for determination is whether the reliefs sought in the application should issue. A reading of prayers 6 to 8 of the application reveals that they seek orders that can only be granted upon final hearing and determination of the suit. Those orders cannot issue at this interlocutory stage. Further, prayers 1, 2 and 4 of the application are spent. 23.Prayers 3 and 5 of the application seek an interlocutory injunction. To succeed in such an application, the Plaintiffs/Applicants must establish a prima facie case with a probability of success. Even if they succeed on that first limb, an injunction will not issue if damages can be an adequate compensation to them. Finally, if the Court is in doubt as to whether damages will be an adequate compensation then the Court will determine the matter on a balance of convenience. See Giella –vs- Cassman Brown & Co Ltd [1973] EA 358. 24.As the Court of Appeal held in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the foregoing conditions and stages are to be applied as separate, distinct, and logical hurdles which the Plaintiffs/Applicants are expected to surmount sequentially. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. 25.Regarding what constitutes “prima facie case,” the Court of Appeal gave a useful guidance in Mrao Ltd v First American Bank of Kenya Ltd& 2 others [2003] eKLR thus:So what is a prima facie case? I would say that 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… [it] is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case. 26.As pleaded in the Plaint, the Plaintiffs acknowledge that the First Defendant has been the registered proprietor of parcel number North Mugirango/Boisanga/4131. They however dispute validity of the said title and contend that the said parcel was subdivided into parcel numbers North Mugirango/Boisanga/4682 and 4683. They seek cancellation of all ensuing titles and reversion to North Mugirango/Boisanga/1607 in vacant possession and as community or public land. 27.The Plaintiffs have not sought declaration of any proprietorship in their favour. The State Law Office which is representing the Land Registrar and the National Land Commission is firmly opposed to the Plaintiffs’ case and has asserted that the Plaintiffs have no locus standi. The issue of locus standi will be resolved at a later stage in the proceedings. 28.In the absence of claim of title accompanied by proof of proprietorship, the Plaintiffs have not established a prima facie case with a probability of success. It must be restated that a prima facie case is more than an arguable case and that it is not enough to simply raise issues. In the absence of a prima facie case, I need not consider whether the tests on irreparable injury and balance of convenience have been satisfied. I find no merit in Notice of Motion dated 9th March 2026. 29.In view of the foregoing, I make the following orders:a.Nyamira MCELC No. E014 of 2026 is hereby withdrawn from the Subordinate Court, transferred to this Court for hearing and determination and consolidated with Nyamira ELCLC No. E005 of 2026.b.Having been filed earlier in time, Nyamira ELCLC No. E005 of 2026 shall be the lead file.c.Parties shall be at liberty to seek further directions to facilitate hearing and disposal of the consolidated cases.d.Notice of Motion dated 9th March 2026 is dismissed.e.Costs shall be in the cause. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 16TH DAY OF JUNE 2026.D. O. OHUNGOJUDGEDelivered in the presence of:Mr Masolo for the PlaintiffsMr Anyoka for the 1st and 2nd DefendantsNo appearance for the 3rd DefendantMr Ondima holding brief for Mr Ndiritu for the 4th and 5th DefendantsCourt Assistant: B Kerubo