[1] The Notice of Motion dated 4th November 2025 was filed by the petitioner, Lucas Omondi Ochieng, pursuant to Section 1A, 1B and 3A of the Civil Procedure Act, Cap 21 of the Laws of Kenya and Order 51 Rule 1 of the Civil Procedure Rules for the following orders:
[a] Spent
[b] That pending the hearing and determination of the application, an injunction be issued restraining the respondents by themselves, their agents, employees or servants or any other persons acting under their instructions from harassing and infringing upon the constitutional rights of the petitioner.
[c] That pending the hearing and determination of the Petition, an injunction be issued restraining the respondents by themselves, their agents, employees or servants or any other persons acting under their instructions from harassing and infringing upon the constitutional rights of the petitioner.
[d] That costs be in the cause.
[2] The application was supported by the applicant’s affidavit, sworn on 18th November 2025. He averred that the 1st, 2nd and 3rd respondents being officials of a state organ, have ignored their duty of observing, respecting, protecting, promoting and fulfilling the rights and fundamental freedoms of the petitioner as enshrined in the Bill of Rights. In particular, the petitioner averred that his rights to privacy and to own property had been violated, thus making it difficult for him to work peacefully at Ugina Beach as a fisherman and fishmonger.
[3] The petitioner further deposed that, on the 10th November 2024, the 1st, 2nd and 3rd respondents together with unknown police officers under the command of the 1st respondent went to his residence within Ugina Beach in Mfangano and took 2 sacks of omena fish, 100 kgs of nile perch fish and 40 fishing nets without his consent or any justification. That again on the 11th November 2024, the 1st, 2nd and 3rd respondents took away additional property belonging to him, namely, 3 boats fitted with engines of 15 horsepower, and other property as listed at paragraph 12 of his affidavit and proceeded to detain his employees who were operating the boats.
[4] The petitioner was aggrieved that, as a result of the actions of the 1st, 2nd and 3rd respondents, he suffered massive loss and damage as his source of livelihood had ground to a halt. He also mentioned that he reported the unlawful acts to the Police at Sena Police Station; and that the 1st and 2nd interested parties ordered the property to be taken to the police station but the command was ignored by the 1st respondent. On that account, the petitioner prayed that his application be allowed.
[5] The respondents opposed the application. They relied on the Replying Affidavit sworn by the 2nd respondent, Elly Ochieng Okello alias "Laki". He averred that he is a fisherman and the treasurer of Remba Beach Management Unit (BMU) as Treasurer. According to the 2nd respondent, it was the petitioner who had made it difficult for other fishermen and women to enjoy their fundamental rights and freedoms guaranteed in the Constitution. He explained that on 10th November 2024 around 4:00 pm, he received a report from one Jane Akinyi, a fisherwoman in Remba Beach, that her missing fishing nets were at Ugina Beach within Mfangano Island, Suba west sub county. He further stated that, together with the 3rd respondent, they informed the BMU chairman, Mr. Shemekia Okoth Mamra of the report, after which the matter was reported to the Police at Remba Police Post.
[6] The 2nd respondent explained that, as was the protocal, they accompanied police officers from Remba Police Post to the scene and found the nets, which were duly identified by Jane Akinyi as her stolen property. The Police confiscated all the nets that had been identified by complainant at the applicant's house and upon completion of the exercise, the police and Ugina BMU Chairman recorded an inventory of nets and floaters and left a copy with the chairman.
[7] The 2nd respondent confirmed that some more nets and items suspected to be stolen property were recovered from the petitioner on the 11th November 2024 and were all taken to Remba Police Station and the concerned parties were asked to go and identify their nets. The complaints were able to positively identify their floaters and nets. It was therefore the respondents’ assertion that the property in question were confiscated in accordance with the law and the matter was undergoing investigation by the Police; and therefore the petitioner had not demonstrated a case to warrant the issuance of the prayers sought.
[8] The application was canvassed by way of written submissions, pursuant to the directions given herein on the 27th may 2025. Consequently, the petitioner filed written submissions dated 23rd June 2025 and proposed one issue for determination, namely, whether the application is merited.
[9] On the authority of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014) KECA 606 (KLR), Mrao Ltd. v First American Bank of Kenya Ltd & 2 others [2003] KLR 125, the applicant urged the Court to find that he had met the prerequisites for the issuance of an order of injunction. He urged the Court to note that it took 5 months after the filing of this present case for the police to release the petitioners Items all in the name of them waiting for other people to come forward and report and identify if their items were among those confiscated.
[10] He posited that the Police were not acting on reports that had been made but were waiting for fresh reports and identifications while illegally detaining his property even after an express court order for release of the same had been made. He submitted that the respondents did this knowing very well that he relied on the confiscated items for his livelihood. He therefore urged the Court to grant the interim prayers sought to prevent further harassment and infringement of his rights.
[11] Article 23 of the Constitution is explicit that:
(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
(e) an order for compensation; and
(f) an order of judicial review.”
[12] Hence, in South Imenti Bar Owners S.H.G through its Chairman James Gikunda Ntaragwi v County Government of Meru [2018] eKLR, it was held:
“Provision of the relief of an injunction in constitutional petitions is doubtless a development of law…Such development of law on injunctions orchestrated by the new Constitution justifies what Ojwang Ag. J. (as he then was) stated in the case of SULEIMAN vs. AMBOSELI RESORT LTD (2004) eKLR 589 at page 607 that:-
‘…counsel for the defendant urged that the shape of the law governing the grant of injunctive relief was long ago in Giella Vs Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel on that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before. Justice Hoffman in the English case of Films Rover International made this point regarding the grant of injunctive relief (1986) 3 All ER 772 at page 780-781:-
“A fundamental principle is that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”...”
Traditionally, on the basis of the well accepted principles set out by the court of Appeal in Giella Vs Cassman Brown the court has had to consider the following questions before granting injunctive relief.
i) Is there a prima facie case…
ii) Does the applicant stand to suffer irreparable harm…
iii) On which side does the balance of convenience lie? Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The Court in responding to prayers for interlocutory injunctive relief, should always opt for the lower rather than the higher risk of injustice…”
[13] Therefore, the key issue for determination is whether the petitioner has satisfied the conditions for the grant of the injunctive orders sought. At this stage, the Court need not examine the merits of the case closely. This was aptly captured in the Muslim for Human Rights & 2 Others v Attorney General & 2 Others [2011] eKLR as follows:
“The court must be careful for it not to reach final conclusion and to make final findings. By the time the application is decided; all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis-à-vis the case of either party. The principle is similar to that in temporary or interlocutory injunctions in civil matters…”
[14] It suffices therefore that an applicant demonstrates the existence of a prima facie case. As to what amounts to a prima facie case, the decision of the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 123 is pertinent. The Court held:
"A prima facie case in a civil application includes but not confined to a genuine and arguable case. 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."
[15] Similarly, in Kevin K Mwiti & others v Kenya School of Law & others (supra), it was restated that:
“A prima facie case, it has been held is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words the Petitioner has to show that he or she has a case which discloses arguable issues and in this case arguable Constitutional issues. It has been held that in considering an application for conservatory orders, the court is not called upon to make any definite finding either of fact or law as that is the province of the court that will ultimately hear the petition. At this stage the applicant is only required to establish a prima facie case with a likelihood of success. Accordingly in determining this application, the Court is not required-indeed it is forbidden- from making definite and conclusive findings on either fact or law.
[16] In the instant application the petitioner is essentially seeking an order of injunction pending the hearing and determination of the Petition to ward off harassment and further infringement of his constitutional rights. In his Further Affidavit sworn on 28th April 2025 the petitioner averred that, following orders of the Court in Mbita Magistrates Court Criminal case Number 237 of 2024, the following items were released to him as per the Inventory attached to the said affidavit:
[a] 64 fishing nets
[b] All the boats that were confiscated, having damaged one of the boats.
[c] Two boat engines.
[17] He pointed out that at the time the police were confiscating the nets, they did not take care to seize only what had been identified by the alleged complainants, but took everything they were pleased to take to the police station and thereafter asked members of the public to go and identify the same. He averred that the third engine boat was later released to him after several visits to the police station.
[18] In the premises, I am satisfied that the petitioner’s application is meritorious and that a justification has been shown to warrant the issuance of the orders sought. In the result, the Notice of Motion dated 4th November 2024 is hereby allowed and orders granted as hereunder:
[a] That pending the hearing and determination of the Petition, an injunction be issued restraining the respondents by themselves, their agents, employees or servants or any other persons acting under their instructions from harassing and infringing upon the constitutional rights of the petitioner; and in particular his right to privacy and to own and use his property.
[e] That costs be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF APRIL 2026
[a] Spent
[b] That pending the hearing and determination of the application, an injunction be issued restraining the respondents by themselves, their agents, employees or servants or any other persons acting under their instructions from harassing and infringing upon the constitutional rights of the petitioner.
[c] That pending the hearing and determination of the Petition, an injunction be issued restraining the respondents by themselves, their agents, employees or servants or any other persons acting under their instructions from harassing and infringing upon the constitutional rights of the petitioner.
[d] That costs be in the cause.
[2] The application was supported by the applicant’s affidavit, sworn on 18th November 2025. He averred that the 1st, 2nd and 3rd respondents being officials of a state organ, have ignored their duty of observing, respecting, protecting, promoting and fulfilling the rights and fundamental freedoms of the petitioner as enshrined in the Bill of Rights. In particular, the petitioner averred that his rights to privacy and to own property had been violated, thus making it difficult for him to work peacefully at Ugina Beach as a fisherman and fishmonger.
[3] The petitioner further deposed that, on the 10th November 2024, the 1st, 2nd and 3rd respondents together with unknown police officers under the command of the 1st respondent went to his residence within Ugina Beach in Mfangano and took 2 sacks of omena fish, 100 kgs of nile perch fish and 40 fishing nets without his consent or any justification. That again on the 11th November 2024, the 1st, 2nd and 3rd respondents took away additional property belonging to him, namely, 3 boats fitted with engines of 15 horsepower, and other property as listed at paragraph 12 of his affidavit and proceeded to detain his employees who were operating the boats.
[4] The petitioner was aggrieved that, as a result of the actions of the 1st, 2nd and 3rd respondents, he suffered massive loss and damage as his source of livelihood had ground to a halt. He also mentioned that he reported the unlawful acts to the Police at Sena Police Station; and that the 1st and 2nd interested parties ordered the property to be taken to the police station but the command was ignored by the 1st respondent. On that account, the petitioner prayed that his application be allowed.
[5] The respondents opposed the application. They relied on the Replying Affidavit sworn by the 2nd respondent, Elly Ochieng Okello alias "Laki". He averred that he is a fisherman and the treasurer of Remba Beach Management Unit (BMU) as Treasurer. According to the 2nd respondent, it was the petitioner who had made it difficult for other fishermen and women to enjoy their fundamental rights and freedoms guaranteed in the Constitution. He explained that on 10th November 2024 around 4:00 pm, he received a report from one Jane Akinyi, a fisherwoman in Remba Beach, that her missing fishing nets were at Ugina Beach within Mfangano Island, Suba west sub county. He further stated that, together with the 3rd respondent, they informed the BMU chairman, Mr. Shemekia Okoth Mamra of the report, after which the matter was reported to the Police at Remba Police Post.
[6] The 2nd respondent explained that, as was the protocal, they accompanied police officers from Remba Police Post to the scene and found the nets, which were duly identified by Jane Akinyi as her stolen property. The Police confiscated all the nets that had been identified by complainant at the applicant's house and upon completion of the exercise, the police and Ugina BMU Chairman recorded an inventory of nets and floaters and left a copy with the chairman.
[7] The 2nd respondent confirmed that some more nets and items suspected to be stolen property were recovered from the petitioner on the 11th November 2024 and were all taken to Remba Police Station and the concerned parties were asked to go and identify their nets. The complaints were able to positively identify their floaters and nets. It was therefore the respondents’ assertion that the property in question were confiscated in accordance with the law and the matter was undergoing investigation by the Police; and therefore the petitioner had not demonstrated a case to warrant the issuance of the prayers sought.
[8] The application was canvassed by way of written submissions, pursuant to the directions given herein on the 27th may 2025. Consequently, the petitioner filed written submissions dated 23rd June 2025 and proposed one issue for determination, namely, whether the application is merited.
[9] On the authority of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014) KECA 606 (KLR), Mrao Ltd. v First American Bank of Kenya Ltd & 2 others [2003] KLR 125, the applicant urged the Court to find that he had met the prerequisites for the issuance of an order of injunction. He urged the Court to note that it took 5 months after the filing of this present case for the police to release the petitioners Items all in the name of them waiting for other people to come forward and report and identify if their items were among those confiscated.
[10] He posited that the Police were not acting on reports that had been made but were waiting for fresh reports and identifications while illegally detaining his property even after an express court order for release of the same had been made. He submitted that the respondents did this knowing very well that he relied on the confiscated items for his livelihood. He therefore urged the Court to grant the interim prayers sought to prevent further harassment and infringement of his rights.
[11] Article 23 of the Constitution is explicit that:
(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
(e) an order for compensation; and
(f) an order of judicial review.”
[12] Hence, in South Imenti Bar Owners S.H.G through its Chairman James Gikunda Ntaragwi v County Government of Meru [2018] eKLR, it was held:
“Provision of the relief of an injunction in constitutional petitions is doubtless a development of law…Such development of law on injunctions orchestrated by the new Constitution justifies what Ojwang Ag. J. (as he then was) stated in the case of SULEIMAN vs. AMBOSELI RESORT LTD (2004) eKLR 589 at page 607 that:-
‘…counsel for the defendant urged that the shape of the law governing the grant of injunctive relief was long ago in Giella Vs Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel on that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before. Justice Hoffman in the English case of Films Rover International made this point regarding the grant of injunctive relief (1986) 3 All ER 772 at page 780-781:-
“A fundamental principle is that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”...”
Traditionally, on the basis of the well accepted principles set out by the court of Appeal in Giella Vs Cassman Brown the court has had to consider the following questions before granting injunctive relief.
i) Is there a prima facie case…
ii) Does the applicant stand to suffer irreparable harm…
iii) On which side does the balance of convenience lie? Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The Court in responding to prayers for interlocutory injunctive relief, should always opt for the lower rather than the higher risk of injustice…”
[13] Therefore, the key issue for determination is whether the petitioner has satisfied the conditions for the grant of the injunctive orders sought. At this stage, the Court need not examine the merits of the case closely. This was aptly captured in the Muslim for Human Rights & 2 Others v Attorney General & 2 Others [2011] eKLR as follows:
“The court must be careful for it not to reach final conclusion and to make final findings. By the time the application is decided; all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis-à-vis the case of either party. The principle is similar to that in temporary or interlocutory injunctions in civil matters…”
[14] It suffices therefore that an applicant demonstrates the existence of a prima facie case. As to what amounts to a prima facie case, the decision of the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 123 is pertinent. The Court held:
"A prima facie case in a civil application includes but not confined to a genuine and arguable case. 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."
[15] Similarly, in Kevin K Mwiti & others v Kenya School of Law & others (supra), it was restated that:
“A prima facie case, it has been held is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words the Petitioner has to show that he or she has a case which discloses arguable issues and in this case arguable Constitutional issues. It has been held that in considering an application for conservatory orders, the court is not called upon to make any definite finding either of fact or law as that is the province of the court that will ultimately hear the petition. At this stage the applicant is only required to establish a prima facie case with a likelihood of success. Accordingly in determining this application, the Court is not required-indeed it is forbidden- from making definite and conclusive findings on either fact or law.
[16] In the instant application the petitioner is essentially seeking an order of injunction pending the hearing and determination of the Petition to ward off harassment and further infringement of his constitutional rights. In his Further Affidavit sworn on 28th April 2025 the petitioner averred that, following orders of the Court in Mbita Magistrates Court Criminal case Number 237 of 2024, the following items were released to him as per the Inventory attached to the said affidavit:
[a] 64 fishing nets
[b] All the boats that were confiscated, having damaged one of the boats.
[c] Two boat engines.
[17] He pointed out that at the time the police were confiscating the nets, they did not take care to seize only what had been identified by the alleged complainants, but took everything they were pleased to take to the police station and thereafter asked members of the public to go and identify the same. He averred that the third engine boat was later released to him after several visits to the police station.
[18] In the premises, I am satisfied that the petitioner’s application is meritorious and that a justification has been shown to warrant the issuance of the orders sought. In the result, the Notice of Motion dated 4th November 2024 is hereby allowed and orders granted as hereunder:
[a] That pending the hearing and determination of the Petition, an injunction be issued restraining the respondents by themselves, their agents, employees or servants or any other persons acting under their instructions from harassing and infringing upon the constitutional rights of the petitioner; and in particular his right to privacy and to own and use his property.
[e] That costs be in the cause.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF APRIL 2026