Omondi & another v Kinyua & another (Enviromental and Land Originating Summons E012 of 2024) [2025] KEELC 4048 (KLR)
The bottom line
#A Nakuru land court refused to stop an eviction that had already happened, but kept the adverse possession claim alive for a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants met the Giella v Cassman Brown threshold for a temporary injunction
They did not; there was an existing judgment and eviction order in Nakuru CM ELC No. 245 of 2019 which the Applicants did not refute, and no appeal or review was shown
The court found the eviction had already been effected pursuant to a valid court order in prior litigation between the same parties over the same land. The Applicants admitted the prior suit but contended adverse possession was never litigated. The court held it could not grant an injunction in vain where eviction had occurred, and the current suit was fresh, not an appeal against the prior judgment.
Whether the Respondents' application for dismissal of the claim on res judicata should succeed
No; the application did not properly advance the res judicata doctrine and was struck out without prejudice to a properly framed application
The Respondents' notice of motion merely sought dismissal of the claim without properly pleading or advancing res judicata, despite relying on prior proceedings in Nakuru CM ELC No. 245 of 2019 and Nakuru Succession Cause No. 703 of 2012. The court declined to determine the doctrine on a defective application but left the Respondents liberty to re-apply properly.
Legal principles established
#- For an interim injunction to issue, the applicant must establish a prima facie case with a probability of success, irreparable harm not compensable by damages, and, if in doubt, the balance of convenience
- An injunction cannot issue where the events complained of have already occurred and the orders sought would be overtaken by events
Court orders
#- 1.The Applicants' application dated 31st October 2024 seeking an interim injunction is dismissed with costs
- 2.The Respondents' application dated 5th December 2024 seeking dismissal of the claim is struck out with no orders as to costs
- 3.The Respondents are at liberty to file a proper application on the doctrine of res judicata if they so wish
- On appeal from
- null
- null
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over an Originating Summons for adverse possession (notice of motion applications for interim injunction and dismissal of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omondi & another v Kinyua & another (Enviromental and Land Originating Summons E012 of 2024) [2025] KEELC 4048 (KLR)", Case Analysis (2025). Notice of Motion dated 31st October 2024 and 5th December 2024 in an Originating Summons (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4048/eng@2025-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.