Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2021] KEELC 680 (KLR)

Regina Odero Pundo (Suing as the legal representative of the Estate of Getrude Anyango Owiny - Deceased) v Christine Orimbo & another [2021] KEELC 680 (KLR)

Environment and Land Court of Kenya
26 November 2021
AOANTONY OMBWAYO
827 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court refused to evict families who had occupied disputed land for 40 years, saying money can compensate the estate if trespass is proved.

What this practically means

#

Executive summary

#
The plaintiff, Regina Odero Pundo, suing as executrix of the Estate of Getrude Anyango Owiny (deceased), moved the Environment and Land Court at Kisumu by application seeking an interlocutory injunction restraining the defendants, their servants, agents and third parties from interfering with, trespassing on, or disposing of six land parcels - Kisumu/Ojola/2061, 2063, 2096, Ojoal/3019, 2525 and Kisumu/Kanyawegi/583 - pending the hearing and determination of the suit, with the O.C.S Maseno Police Station to ensure compliance, and costs provided for. She deponed that the respondents trespassed on 18th June 2021, began erecting poles for permanent structures without any colour of right or documentation of ownership, intimidated her caretakers, and were intermeddling in the deceased's estate, which is the subject of ongoing succession proceedings in Succession Cause No. 14 of 2019 at the High Court at Kisumu; a report was made at Maseno Police Station under OB15/19/06/2021. The respondents, in a replying affidavit sworn by Joseph Opiyo Otuoma, asserted occupation of Kisumu/Ojola/2061, 2063 and 2096 for some 40 years as ancestral land of their late grandfather Otiende Ogony, with homesteads, crops and grazing. Antony Ombwayo J found the respondents to be in possession, noted that the plaintiff's ultimate claim is eviction and damages for trespass, and held that an injunction would amount to an eviction of long-standing occupiers; damages for trespass would adequately compensate the plaintiff if trespass is proved at trial. The application was dismissed with costs in the cause.

Key legal issues

#
01

Whether an interlocutory injunction should issue against the respondents

Holding

The injunction was declined because the respondents are in possession of the suit properties and granting the injunction would amount to a final order of eviction at an interlocutory stage; damages for trespass would be an adequate remedy for the plaintiff.

Reasoning

The court considered the supporting and replying affidavits and found the respondents in possession of the suit properties, claiming ancestral occupation of about 40 years. The court observed that the plaintiff's ultimate claim is for eviction and damages for trespass. Because the respondents have resided on the land for a long time, an injunction would effectively evict them before trial. Since trespass, if proved at trial, is compensable in damages, the balance of convenience and adequacy of damages favoured refusing the interlocutory relief.

Legal principles established

#
  • An interlocutory injunction will not be granted where it would effectively amount to evicting parties in long-standing occupation of the suit land, more so where the plaintiff can be adequately compensated in damages

Court orders

#
  1. 1.The application seeking an injunction against the respondents is declined
  2. 2.Costs in the cause
Jurisdiction invoked
Not stated in the judgment (Environment and Land Court, original jurisdiction over land parcels in Kisumu)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Regina Odero Pundo (Suing as the legal representative of the Estate of Getrude Anyango Owiny - Deceased) v Christine Orimbo & another [2021] KEELC 680 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/680/eng@2021-11-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.