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ELCPartially AllowedNot stated in judgment (ELC, Kitale)· [2025] KEELC 4688 (KLR)

Tilitei & another v Psiwa & 3 others (Environment and Land Case E037 of 2024) [2025] KEELC 4688 (KLR)

Environment and Land Court
18 June 2025
CNC.K. NZILI
1,479 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kitale court kept both sides' current use of disputed settlement land untouched but refused a full injunction, stressing that claimants must prove losses money cannot fix.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 27/9/2024 in which the applicants sought an injunction to restrain the 1st respondent from entering into, selling, constructing on, transferring or charging Chepchoina Settlement Phase 11 Plot No.5X3 (15 acres), and maintenance of status quo pending hearing. The applicants claimed the land was allocated to the 1st applicant in 1994 following a presidential directive; he took possession in 1997, obtained a fresh allotment letter in 2008 and paid 10% of the purchase price, later transferring the land to the 2nd applicant. In January 2023 they learned of an alleged fraudulent and collusive re-allocation to the 1st respondent without notice of default or a fresh ground report. The 1st respondent countered that he was lawfully allocated the land after due diligence showed it vacant, and that the first allottee was repossessed for non-payment. Applying the Giella v Cassman Brown principles as refined in Nguruman, and the Mrao definition of a prima facie case, C.K. Nzili, J held that the applicants had established a prima facie case, their allegations of fraud being particularised and their interest evidenced by the allocations. However, the applicants failed to demonstrate irreparable injury beyond mere assertion, per Agnes Naliaka Chesoto. As no party disputed the status quo orders granted on 30/9/2024, and the chief's report was still outstanding, the court directed that the prevailing status quo on occupation and use be maintained pending the hearing of the main suit. Mention for pre-trial conference was set for 24/7/2025. No costs order was made.

Key legal issues

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01

Prima facie case

Holding

Established - applicants demonstrated their interest through first and subsequent allocation and remedy of the initial breach; fraud and illegality allegations particularised

Reasoning

Applying the Mrao definition, the court found the applicants had shown an arguable right: an initial 1994 allocation, a 2008 re-issue with payment, and alleged fraudulent re-allocation. Whether repossession and re-allocation were lawful is reserved for trial. At interlocutory stage an applicant need only show a right arguably infringed calling for rebuttal, not proof of the claim.

p. 3
02

Irreparable injury

Holding

Not demonstrated

Reasoning

The court held that the applicants merely asserted they would suffer injury without evidencing loss incapable of compensation in damages, as required by Giella and Nguruman as applied in Agnes Naliaka Chesoto.

p. 3
03

Status quo

Holding

Maintained pending trial since neither party disputed the prevailing status quo on occupation and use

Reasoning

Although the chief's report was outstanding, no party disputed the 30/9/2024 status quo orders; the court invoked the justice of the case to preserve the position pending full hearing.

p. 3

Legal principles established

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  • Temporary injunctions require establishment of a prima facie case, irreparable injury not compensable in damages, and, if in doubt, balance of convenience
  • A prima facie case need not be a case that must succeed; particularised allegations of fraud and demonstrated interest in land suffice at interlocutory stage

Court orders

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  1. 1.The status quo order issued on 30/9/2024 directing that the party in occupation and use of the suit land remain thereon, with no destruction of property and maintenance of existing crops (short-term/annual crops permitted), is maintained pending hearing and determination of the main suit
  2. 2.Mention to confirm pre-trial conference on 24/7/2025

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (4)

  • Giella -vs- Cassman Brown & Co. Ltd
    1973 E.A 358
  • Nguruman Ltd -vs- Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Ltd -vs- First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Agnes Naliaka Chesoto -vs- James Wangalwa
    (2014) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) read with Order 40 Rule 1 of the Civil Procedure Rules (inherent jurisdiction as expressed in the ruling)

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, "Tilitei & another v Psiwa & 3 others (Environment and Land Case E037 of 2024) [2025] KEELC 4688 (KLR)", Case Analysis (2025). Not stated in judgment (ELC, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4688/eng@2025-06-18

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