REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISII
ELCLC No. 34 of 2025
(FORMERLY KISII ELCEPCC No. E003 of 2025)
NYABOGA WEKESA PHILIP ………………………..………………………… PLAINTIFF
VERSUS
MOSES C. BAKORA ……………………………………..………………….. DEFENDANT
RULING
1. The application herein is one dated 15 October 2025 filed by the defendant. The applicant seeks that the plaintiff be restrained by an order of injunction from continuing with construction on the land parcel Bassi/Bondonya/2057 which is the land in dispute in this suit. At the time the application was being heard inter partes, nothing had been filed by the plaintiff/respondent and counsel for the respondent did not also appear at the inter partes hearing.
2. I have considered the application.
3. I see that this suit was commenced by the respondent through a plaint filed on 29 April 2025. The respondent pleaded that through an agreement dated 31 March 2022, the applicant sold to him a portion measuring 13 by 100 feet (the first portion) out of the land parcel Bassi/Bondonya/2057 for Kshs. 1,200,000/= which land measures 26 by 100 feet. He averred that subsequently, the applicant expressed willingness to sell the rest of the land again measuring 13 by 100 feet (the second portion) at the same price, of which the respondent paid Kshs. 1, 011,500/= and the balance was to be pad upon transfer. The respondent pleaded that he has erected a storey building on the land and utilized the second portion as utility space to serve the storey building. He pleaded that on 13 March 2025 the applicant came from nowhere and accused the respondent of constructing on his portion of land without permission. The respondent contended that the actions of the applicant were an attempt to renege on his contractual obligations. In the suit the respondent asked that the applicant be permanently restrained from the land and an order of eviction to compel him remove his remaining items on the suit land and give vacant possession.
4. The applicant filed defence wherein he admitted selling to the respondent the first portion measuring 13 by 100 feet. He also admitted expressing willingness to sell the second portion but he contended that the respondent rejected the offer and no agreement was reached. He pleaded that several months later, after he had forgotten about the matter and he was no longer selling the portion, the respondent deposited Kshs. 1, 011,500/= into the account of his brother so as to put pressure on him to sell the remaining portion. He pleaded that he reported the matter to the police but the issue was resolved through mediation and an agreement dated 13 March 2025 was signed wherein it was agreed that the money be refunded to the respondent. He pleaded that he refunded Kshs. 500,000/= and the balance was due on 25 June 2025.
5. In his supporting affidavit, the applicant has contended that the respondent demolished his building and is digging trenches in preparation for construction on the disputed portion. He has deposed that the respondent has written to his tenants claiming that he has bought the whole parcel of land and demanding that they pay rent to him.
6. I have considered the application. I already stated that at the time of hearing the application inter partes there was nothing filed by the respondent. However, it would appear that later, after the application was heard and a ruling date given, the respondent’s counsel proceeded to file grounds of opposition. I regret my inability to consider the same. You cannot oppose an application after it has already been heard and only reserved for ruling. You need to file your documents before the application is heard. The purported grounds of opposition are hereby struck out.
7. It is clear from the pleadings that there is a serious dispute as to whether or not the applicant sold a second portion of the suit land to the respondent. I have seen the mediation agreement dated 13 March 2025 and from it I discern that it was agreed that the respondent be refunded the amount of Kshs. 1, 011,500/=. I have also seen some evidence of monies sent to the respondent. I would think that in those circumstances, the applicant has demonstrated prima facie that the 2nd agreement, if at all one existed, was most probably rescinded. The plaintiff/respondent cannot surely be allowed to continue constructing on the disputed portion of land while this litigation is ongoing as he will proceed to alter the character of it which may lead to irreparable loss being visited upon the applicant. Whatever the case, the balance of convenience also tilts towards maintaining the land in the manner that it is without further developments being made.
8. For the above reasons, I allow this application. I order the plaintiff/respondent to forthwith stop any construction on the disputed land and not to make any alterations on the land until the case is heard and determined. The plaintiff/respondent is also stopped by an order of injunction from interfering with the possession of the defendant/applicant of this portion in dispute, which for the avoidance of doubt, is the second portion of land that the respondent alleges was sold to him subsequent to the first portion.
9. The applicant will also have the costs of this application.
10. Orders accordingly.
DATED AND DELIVERED THIS 20 DAY OF NOVEMBER 2025
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT KISII
Delivered in the presence of :
Mr. Nyamweya for the plaintiff/respondent
No appearance on the part of Mr. Ongori for the defendant/applicant
Court Assistant – Michael Oyuko