The application before the court for determination is the Notice of Motion application dated 27th January, 2026 brought by the Plaintiff pursuant to the provisions of Articles 22, 40 & 47 of the Constitution of Kenya, sections 1A, 1B, and 3A of the Civil Procedure Act, Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules and section 13 of the Environment and Land Court Act.
The application seeks an order of temporary injunction restraining the Defendants/Respondents, their agents, servants, employees, or any persons acting under them from trespassing upon, demolishing fences or structures, inciting the public, harassing or intimidating the Applicant/Applicant’s family members or in any manner interfering with land parcels numbers KISUMU/ALUNGO/204, 205 and 212 pending hearing and determination of the suit.
The Applicant also prayed for an order directing the Officer Commanding Station (OCS) of the nearest police station to enforce compliance with the court's orders and maintain peace. The Applicant further sought that the costs of the application be in the cause.
The application was supported by the averments in the Supporting Affidavit sworn by Henry Otieno Otieno on 27th January, 2026, and the annexures thereto.
The application was opposed by the 1st and 6th Respondents who filed Grounds of Opposition dated 7th May, 2026. The 3rd Respondent filed a Replying Affidavit sworn by Brian A. Ikol on 17th April, 2026.
When the application came up for hearing interpartes on 7th May, 2026, Counsel for the Attorney General informed the court that she was not opposing the application. The Applicant chose to rely on the grounds on the face of the application and in the Supporting Affidavit and made no further submissions.
Similarly, the County Attorney appearing for the 1st and 6th Respondents chose to rely on the grounds of opposition, and indicated to the court that the 1st and 6th Respondents fully associate themselves with the Plaintiff.
Counsel for the 3rd Respondent relied on the contents of the Replying Affidavit filed.
The substantive relief sought is an order of temporary injunction. The grounds for the grant of the same are set out in Order 40 Rule 1 of the Civil Procedure Rules, pursuant to which the application is brought which provides 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.
These grounds are amplified 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.
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.”
The Applicant’s case is that he is the lawful beneficiary and occupant of the suit lands, having been apportioned the same by his late father and having occupied the land for 30 years without interference. That the Defendants, particularly the 2nd, 3rd, and 4th Defendants, have claimed that the suit land is public land. That he now faces imminent demolition and dispossession. That the dispossession will permanently alter the character of the suit land.
That he has a prima facie case with a probability of success.
To the Supporting Affidavit, the Applicant annexed a copy of certificate of official search for parcel No. KISUMU/ALUNGO/204 in the name of the Plaintiff, a copy of the green card for land parcel number KISUMU/ALUNGO/212 in the name of Kisumu County Council, among other documents.
Although the 1st and 6th Defendants filed grounds of opposition, they associated themselves with the Plaintiff.
The case of the 3rd Defendant, as contained in the Replying Affidavit, is that the Applicant is the owner of land parcel No. KISUMU/ALUNGO/204 as was adjudicated. That the action to claim ancestral interest in land parcels Numbers KISUMU/ALUNGO/205 and 212 is overtaken by statutory limitation. That the Applicant has not demonstrated the occurrence of imminent risk to warrant the grant of an order of temporary injunction. That if anything, a permanent injunction should issue in favour of the County Government of Kisumu against the Plaintiff.
From the documents filed by Applicant, the 3 land parcels are independent and products of the land adjudication process.
There is no evidence so far placed before the court that land parcel numbers KISUMU/ALUNGO/205 and 212 were products of the subdivision of parcel No. KISUMU/ALUNGO/204 as claimed by the applicant. The certificate of search exhibited by Plaintiff shows that land parcel No KISUMU/ALUNGO/204 is an independent parcel.
The court is not satisfied that grounds for the grant of an order of temporary injunction have been demonstrated. It has been demonstrated that there exists a right which is threatened with violation. I find that the application lacks merit. The result is that;
i. The application is dismissed.
ii. Each party to bear its own costs of the application.
Orders accordingly.
Ruling dated and signed at Kisumu, read this 28th day of May, 2026, virtually, through Microsoft Teams online application.
E. ASATI,
JUDGE.
In the presence of
Atika: Court Assistant
Odhiambo h/b for Mwamu for the Applicant
N/A for the Respondents.
| ELC LC E016/2026 RULING 2 |