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ELCDismissedNot stated in judgment (Chamber Summons application dated 13th January 2025)· [2025] KEELC 3838 (KLR)

Khayundi & 2 others (Suing as Legal Representative to the Estate of Daniel Olembo Khayundi) v Asembo & 6 others; Khayundi (Interested Party) (Environment & Land Case 010 of 2024) [2025] KEELC 3838 (KLR)

Environment and Land Court (implied land dispute; court station stated as Vihiga)
15 May 2025
EAE. Asati
850 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Vihiga court refused to stop land dealings because the applicants could not prove the disputed parcels came from a fraudulent subdivision of the original land.

What this practically means

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Executive summary

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This ruling of the court at Vihiga, delivered by E. Asati, Judge, on 15th May 2025, determined a Chamber summons application dated 13th January 2025 by the plaintiffs, brought under sections 1, 1A, 1B and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules. The substantive prayer sought a temporary injunction restraining the defendants/Respondents from interfering with the applicants' and the Interested Party's quiet occupation of land parcel WEST BUNYORE/EBUTANYI/577 and its alleged resultant sub-divisions 1707, 1708, 1710 and 1711, pending the hearing of the suit. The application was opposed through a Replying Affidavit sworn by the 1st Respondent, Joel Asembo, who contended that the pleadings were defective, that the Respondents were not owners of the new parcels, that the applicants lacked capacity, and that injunctions cannot issue to bar owners from their own land. Applying the Giella v Cassman Brown test as elaborated in Mrao Ltd v First American Bank, the court held that no prima facie case was established: there was no evidence that parcel 577 was subdivided to create the new parcels, nor that any subdivision was fraudulent, and the suit lands described in the plaint differed from those in the application. Irreparable injury was likewise not demonstrated, though the balance of convenience favoured maintaining the status quo pending trial. The application was dismissed with costs in the main suit.

Key legal issues

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01

Prima facie case

Holding

Not established - no evidence that parcel 577 was subdivided to produce the new parcels nor that any subdivision was fraudulent

Reasoning

The applicants alleged fraudulent subdivision for want of Letters of Administration, but adduced no evidence that parcel 577 produced the new parcels or that subdivision was fraudulent. The suit lands described in the plaint also differ from those in the application, undermining the claim. Applying Giella and Mrao, the court found the threshold unmet.

p. 3
02

Irreparable injury and balance of convenience

Holding

Irreparable injury not demonstrated; balance of convenience favours maintaining the status quo pending hearing

Reasoning

Having failed on the first Giella limb, the court found no demonstration of irreparable injury. It nonetheless observed that the balance of convenience tilts towards maintaining the existing status quo pending the hearing of the suit, but declined injunctive relief because the foundational limb had failed.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with probability of success, irreparable injury not adequately compensable in damages, and failing which the court decides on a balance of convenience

Court orders

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  1. 1.The Chamber summons application dated 13th January 2025 is dismissed
  2. 2.Costs in the main suit
Jurisdiction invoked
Sections 1, 1A, 1B & 3A of the Civil Procedure Act and Order 40 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, "Khayundi & 2 others (Suing as Legal Representative to the Estate of Daniel Olembo Khayundi) v Asembo & 6 others; Khayundi (Interested Party) (Environment & Land Case 010 of 2024) [2025] KEELC 3838 (KLR)", Case Analysis (2025). Not stated in judgment (Chamber Summons application dated 13th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3838/eng@2025-05-15

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