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ELCAllowedNot stated in the ruling (related: Kisumu ELC No. 146 of 2012)· [2025] KEELC 4997 (KLR)

Odera & 6 others (Suing on their own Behalf and on Behalf of all Members of the Kogony Community Claiming Registrable Interest in the Land known as C/18 Scheme) v Gitonga & 5 others (Environment & Land Case E024 of 2025) [2025] KEELC 4997 (KLR)

Environment and Land Court
3 July 2025
EAE. Asati
651 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 in Kisumu blocked the sale or development of five disputed Kogony plots, protecting beneficiaries with an older court judgment in their favour.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Kisumu (Asati, J.) on a Notice of Motion dated 22nd April 2025 brought under Order 40 Rules 1, 2 and 3, Order 20 Rule 1 and Order 51 Rule 3 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. The Applicants, who claim to be beneficiary owners of the Kisumu/Kogony C-18 Scheme as ancestral land, sought a temporary injunction restraining the seven Defendants from alienating, selling, transferring, surveying or subdividing parcels including L.R. Nos. 27677 to 27681 pending hearing of the suit. The application was grounded on a judgment in Kisumu ELC No. 146 of 2012, which held that Kogony C-18 Scheme formed part of land belonging to the Kogony clan/community and directed cancellation of titles already issued. The Applicants alleged that the Respondents, whose parcels fell within the cancelled titles, began constructing a perimeter wall in March 2025, threatening to overtake the suit by events. Affidavits of service showed the Respondents were served personally, but none filed a response or appeared on 3rd June 2025. Counsel urged the court to allow the unopposed application. The court observed the judgment in ELC No. 146 of 2012 in the Applicants' favour and photographs of the ongoing construction, found a prima facie case with a probability of success demonstrated, and allowed the application with costs to the Applicants. The ruling was delivered virtually on 3rd July 2025.

Key legal issues

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01

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

Holding

The court found that the Applicants had demonstrated a prima facie case with a probability of success based on the prior judgment in Kisumu ELC No. 146 of 2012 in their favour and evidence of ongoing construction.

Reasoning

The court noted the judgment in ELC No. 146 of 2012 which adjudged the suit land in favour of the Applicants and directed cancellation of titles. It also saw photographs showing construction of a perimeter wall in progress. The application was unopposed, with no response filed and no attendance by the Respondents despite proper service. On that material, the court found the application merited and allowed it.

p. 2

Legal principles established

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  • An unopposed injunction application may be allowed where the material before the court demonstrates a prima facie case with a probability of success.

Court orders

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  1. 1.Temporary injunction restraining the 1st-7th Defendants, their servants, agents or proxies from alienating, selling, offering for sale, transferring, surveying or subdividing the parcels including L.R. Nos. 27677, 27678, 27679, 27680 and 27681 or dealing with them pending hearing and determination of the suit
  2. 2.Costs awarded to the Applicants
Jurisdiction invoked
Order 40 Rules 1, 2 and 3, Order 20 Rule 1, Order 51 Rule 3 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act Cap 21 Laws of Kenya

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, "Odera & 6 others (Suing on their own Behalf and on Behalf of all Members of the Kogony Community Claiming Registrable Interest in the Land known as C/18 Scheme) v Gitonga & 5 others (Environment & Land Case E024 of 2025) [2025] KEELC 4997 (KLR)", Case Analysis (2025). Not stated in the ruling (related: Kisumu ELC No. 146 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4997/eng@2025-07-03

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