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ELCDismissedNot stated in the judgment (application dated 3rd October 2024 in an Originating Summons)· [2025] KEELC 3921 (KLR)

Koya & 2 others v Torotoich (Enviromental and Land Originating Summons E013 of 2024) [2025] KEELC 3921 (KLR)

Environment and Land Court
15 May 2025
MMM.N Mwanyale
1,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Kilgoris dismissed land occupants' bid for an injunction because long occupation alone did not prove a strong enough legal claim.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kilgoris (M.N Mwanyale, J) delivered on 15th May 2025 on a notice of motion dated 3rd October 2024 filed by the plaintiffs in an originating summons against the defendant, Kenneth Limo Torotich. The applicants sought a temporary injunction restraining the defendant from entering upon, trespassing onto or dealing with land parcel Transmara/Kimintet/C15, and a conservatory order preserving the parcel from alienation, encumbrance or waste pending hearing of the originating summons. The applicants, claiming to have occupied the 56-hectare parcel openly and uninterruptedly since 2009, asserted title by adverse possession and a prima facie case. The respondent, a beneficiary of the estate of the late Gedion Toroitich Kibet, opposed, deposing that the applicants' entry arose from an illegal 2018 lease with one Parmet Ole Kiseet, who had litigated and lost against the deceased's estate in Kilgoris CM Civil suit No. 34/2019, and that occupation was promptly reported. The court framed two issues: whether the application was merited and who should bear costs. Applying the Mrao Ltd v First American Bank definition of a prima facie case, the court found the applicants had merely raised issues of occupation which the respondent had rebutted with a judgment in its favour; no apparent right had been shown to be infringed. Relying on Kenya Commercial Finance Company Ltd v Afraha Education Society, the court held that once a prima facie case fails, irreparable harm and balance of convenience need not be considered. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the applicants established a prima facie case with probability of success to warrant a temporary injunction and conservatory order

Holding

The application was not merited; the applicants did not establish a right being infringed by the respondent

Reasoning

The applicants relied on 15 years' occupation claimed to ripen into adverse possession. However, the respondent demonstrated that the occupation began in 2018 pursuant to a lease from Parmet Ole Kiseet, who purported to be the owner, and exhibited a judgment in his favour in prior Kilgoris litigation. Raising issues of occupation was insufficient; the applicant did not show an infringement of an apparent right calling for rebuttal, so the Giella threshold failed at the first stage.

p. 3
02

Whether the court should inquire into irreparable harm and balance of convenience

Holding

No; once a prima facie case fails, the remaining Giella conditions need not be considered

Reasoning

Following Kenya Commercial Finance Company Ltd v Afraha Education Society, the court held that where no prima facie case is established, irreparable injury and balance of convenience need no consideration. Having found no prima facie case, the court declined to proceed to the second and third Giella conditions and dismissed the application.

p. 4

Legal principles established

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  • A prima facie case requires more than raising arguable issues; the evidence must show an infringement of a right and a probability of success at trial
  • Where no prima facie case is established, the court need not consider irreparable injury and balance of convenience

Court orders

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  1. 1.The application dated 03.10.2024 is dismissed with costs to the Respondents

Authorities

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Cases cited (5)

  • Giella Vs. Casman Brown
  • Nguruman Limited Vs. Jan Bonde Nielsen and 2 Others
  • Lucy Wangui Gachara Vs. Minundi Okemba Lore
    (2015) eKLR
  • Mrao Limited Vs. First American Bank Limited
  • Kenya Commercial Finance Company Ltd. Vs. Afraha Education Society
    (2001) I.E.A 86
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land parcel Transmara/Kimintet/C15 (specific enabling statute not cited in the judgment)

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, "Koya & 2 others v Torotoich (Enviromental and Land Originating Summons E013 of 2024) [2025] KEELC 3921 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 3rd October 2024 in an Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3921/eng@2025-05-15

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