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ELCDismissedNot stated in the extract· [2025] KEELC 3839 (KLR)

Ndolo (Suing on Behalf of Elizabeth Kamene Ndolo) v Nol Turesh Loitokitok Water and Sanitation Company Limited & 9 others (Environment & Land Case E005 of 2020) [2025] KEELC 3839 (KLR)

Environment and Land Court
15 May 2025
EOE. O. Obaga
2,201 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to stop water connections on Sultan Hamud land because an earlier court judgment already gave the defendants ownership rights.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court on an amended Notice of Motion dated 26th July, 2024 brought by the Plaintiff/Applicant, Stephen Ndolo, under Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010, as the duly appointed representative of Elizabeth Kamene Ndolo, the registered owner of Title No. IR 70883 near Sultan Hamud. The Applicant sought orders to stop new water connections and to restrain trespass and interference pending hearing of the main suit, contending that the 1st Defendant/Respondent had illegally connected water to unknown encroachers without the registered owner's consent, thereby infringing her proprietary rights under Article 40 and Sections 24(a) and 26 of the Land Registration Act, 2012. The Respondent opposed, asserting through its Commercial Manager, Gabriel Wafula, that a judgment of 19th March, 2018 in Makueni ELC Case No. 233–241 of 2017 (Muema Kitulu v Elizabeth Kamene Ndolo) vested ownership of portions of the suit property in the 2nd to 10th Defendants, confirmed by a ruling dated 24th June, 2021; that it had valid water-connection contracts with them; and that the right to clean water under Article 43(d) should not be curtailed. The court applied the Giella v Cassman Brown test as restated in Nguruman Limited. It found the Applicant had adduced no evidence that the 19th March, 2018 judgment had been stayed, reviewed or set aside, so the trespass allegations were improbable and no prima facie case was established. The remaining limbs need not be considered. The application was dismissed with costs to the 1st Defendant/Respondent.

Key legal issues

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01

Whether the Applicant established a prima facie case with a probability of success

Holding

No - the 2nd to 10th Defendants' proprietary interest was declared by a judgment of the court that was not shown to be stayed, reviewed or set aside, rendering the trespass claim improbable

Reasoning

The court examined the pleadings and exhibits and found the judgment of 19th March, 2018 awarded the 2nd to 10th Defendants portions of the suit property with a permanent injunction against Elizabeth Ndolo. Without evidence that this judgment was stayed or set aside, the 1st Defendant's water connections under valid contracts with those Defendants could not constitute trespass. The Applicant therefore failed the first Giella limb.

p. 4
02

Whether the remaining Giella limbs (irreparable harm, balance of convenience) required consideration

Holding

No - failure at the first sequential hurdle renders consideration of the other limbs unnecessary

Reasoning

Relying on Nguruman Limited v Jan Bonde Nielsen, the court treated the Giella conditions as sequential hurdles. Since the Applicant failed to demonstrate a prima facie case, the court declined to assess irreparable injury or balance of convenience, leaving all substantive claims for the full hearing.

p. 5

Legal principles established

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  • If a prima facie case is not established, irreparable injury and balance of convenience need not be considered
  • An interlocutory application does not determine the issues for trial with finality

Court orders

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  1. 1.The amended Notice of Motion dated 26th July, 2024 is dismissed with costs to the 1st Defendant/Respondent
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010

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, "Ndolo (Suing on Behalf of Elizabeth Kamene Ndolo) v Nol Turesh Loitokitok Water and Sanitation Company Limited & 9 others (Environment & Land Case E005 of 2020) [2025] KEELC 3839 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3839/eng@2025-05-15

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