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ELCAllowedOriginating Summons dated 5th December 2024 (Busia High Court)· [2025] KEELC 117 (KLR)

Oruchum & another v Kiboi (Enviromental and Land Originating Summons E039 of 2024) [2025] KEELC 117 (KLR)

Environment and Land Court
22 January 2025
875 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Busia court protected families who have occupied land since 1971, blocking the registered owner from selling or evicting them until the ownership dispute is fully heard.

What this practically means

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Executive summary

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The two Applicants moved the Environment and Land Court at Busia by Originating Summons dated 5th December 2024 seeking a declaration of adverse possession over land parcel No North Teso/Aboloi/414 against the Respondent. Simultaneously they filed a Notice of Motion under Order 40 Rule 1 and Order 53 Rule 3 of the Civil Procedure Rules seeking an interlocutory injunction restraining the Respondent from evicting them, trespassing on, surveying, selling, encroaching on or dealing with the suit land pending the hearing and determination of the suit. Their case, supported by the affidavit of the 1st Applicant, was that their deceased fathers jointly purchased the land in 1971 from the Respondent's deceased father, Ndiwa Kiboi Wananda, took possession and have occupied it since; the father never transferred the land, and an earlier trespass suit (Busia High Court Civil Suit No 17 of 2005) was dismissed for want of prosecution. They became alarmed when the chief informed them on 4th December 2024 that the owner would take over the land on 6th December 2024. The application was unopposed: the Respondent's counsel had filed a Notice of Appointment but no reply, and at the mention he lacked instructions. Justice Boaz N. Olao held that the Applicants' unrebutted averments established a prima facie case, as persons in occupation have an interest requiring protection, and that their loss would be irreparable by damages given occupation since 1971. The court granted the interlocutory injunction, reminded the parties that under Order 40 Rule 6 the suit must be determined within 12 months or the injunction lapses, and ordered costs in the cause.

Key legal issues

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01

Whether an unopposed application for interlocutory injunction should be granted on unrebuted averments

Holding

The court granted the injunction, holding that the Applicants' unrebutted averments of occupation since 1971 established a prima facie case and irreparable loss

Reasoning

The application was unopposed as the Respondent's counsel had no instructions and no reply was filed despite filing a Notice of Appointment. The Applicants deposed to occupation and possession since 1971 when their fathers purchased the land. These averments were not rebutted. As persons in possession, they have an interest requiring protection pending determination of ownership, and damages would not suffice.

p. 2
02

Irreparable harm if the Applicants are evicted from the suit land

Holding

If the Applicants have used the land since 1971, their loss would be irreparable by an award of damages

Reasoning

The court reasoned that long occupation of land since 1971 is not compensable in damages, concluding that the second limb of the interlocutory injunction test was satisfied in the absence of contrary evidence.

p. 2

Legal principles established

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  • Persons in occupation and possession of land in dispute have an interest therein that must be protected pending full hearing, constituting a prima facie case
  • Under Order 40 Rule 6, an interlocutory injunction lapses if the suit is not heard and determined within 12 months unless extended

Court orders

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  1. 1.An order of interlocutory injunction restraining the Respondent, his agents, relatives, workers or servants from trespassing on, surveying, selling, encroaching, grabbing, constructing on, entering, remaining or dealing in any manner with land parcel No North Teso/Aboloi/414 pending the hearing and determination of the suit
  2. 2.Reminder under Order 40 Rule 6 that the suit must be heard and determined within 12 months failing which the injunction shall lapse unless extended
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 53 Rule 3
  • Civil Procedure RulesOrder 40 Rule 6
Jurisdiction invoked
Order 40 Rule 1 and Order 53 Rule 3 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Oruchum & another v Kiboi (Enviromental and Land Originating Summons E039 of 2024) [2025] KEELC 117 (KLR)", Case Analysis (2025). Originating Summons dated 5th December 2024 (Busia High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/117/eng@2025-01-22

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