Owino & 6 others (Suing for Themselves and on Behalf of the Entire Community of Karateng that are Affected by the Unlawful Act of the Defendant in Terms of Encroachment on Private Lands and Blocking of Lela-Aboge, Lela Holo, Lela Sunga and Lela Eluhobe Roads) v Kenya Railways Corporation; Kenya Rural Roads Authority (Interested Party) (Land Case E030 of 2023) [2024] KEELC 3797 (KLR)

The court relied on Article 48 of the Constitution and on Catherine Njeri Majana v Kenya Railways Corporation, which held that failure to issue the 30 days' notice is not fatal to the suit. On the facts, the Defendant had already begun fencing the disputed land and roads without notice, so insisting on a 30 days' notice would impede access to justice. The exhaustion argument was not sustained on these facts.

Applying Giella v Cassman Brown, the court found it not denied that the plaintiffs hold title to the land being fenced and that the fencing blocks long-used roads of access. Both parties relied on competing surveyor's reports and each asserted ownership, so the merits could not be resolved interlocutorily. Preservation of the status quo ante pending trial justified the injunction; the application was allowed with costs to the applicants.