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ELCDismissedNot stated in the ruling (Notice of Motion dated 30th October 2024)· [2025] KEELC 5226 (KLR)

Konchellah (Suing as the Legal Representative of the Estate of Wilson Sonny Letuya Konchellah) v Konchellah & another (Environment and Land Case E124 of 2024) [2025] KEELC 5226 (KLR)

Environment and Land Court of Kenya
10 July 2025
2,420 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Kajiado (L. Komingoi, J) on a Notice of Motion dated 30th October 2024 in which the plaintiff, administrator ad litem of the estate of her late father Wilson Sonny Konchellah, sought temporary injunctions restraining the defendants from trespassing on, constructing on or dealing with parcel Ngong/Ngong/20185, plus police enforcement of the orders and costs. She asserted that her father acquired the property by transmission from his father in 1997, possessed and cultivated it until his death in December 1999, after which the defendants trespassed and intermeddled. The 1st and 2nd defendants, in replying affidavits, contended that the grant and certificate of title were fraudulently obtained, that the 2nd defendant was a wife of the late John Leboi Nchirone Ole Konchellah who had never been adequately provided for, that revocation proceedings were pending in Succession Cause No. 314 of 1994, and that they had occupied the land long before the purported distribution. The court framed three issues and applied the Giella v Cassman Brown conditions as restated in Nguruman v Jan Bonde Nielsen, emphasising they are sequential. It found the respondents' possession undisputed and uninterrupted for nearly three decades, the applicant's inaction unexplained, and no imminent irreparable harm not compensable in damages. The injunction was declined; the court nonetheless directed that the prevailing status quo be maintained pending the hearing of the main suit, with costs of the application to abide its outcome.

Key legal issues

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01

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

Holding

She did not. The respondents' possession of the suit property was undisputed and had been continuous since about 1999, and the applicant offered no plausible explanation for her prolonged inaction, undermining the claim of a prima facie case and urgency.

Reasoning

The court noted that trespass was alleged from 1999 yet the respondents had remained in peaceful, uninterrupted occupation for close to three decades. The applicant's unexplained delay cast doubt on the urgency and immediacy of the alleged harm, and no material change in the property's status was shown.

p. 5
02

Whether the applicant would suffer irreparable harm not compensable by damages

Holding

No imminent threat of harm was demonstrated; any alleged loss was capable of being remedied by an award of damages.

Reasoning

The court found that given the long, undisputed and unchanged possession by the respondents, no imminent and irreparable harm now faced the applicant. The absence of any material change in the status of the property over the years substantially undermined the claim of urgency and irreparability, so the second Giella limb failed.

p. 5
03

Balance of convenience

Holding

Not reached; having failed the first two sequential conditions, the third automatically fails.

Reasoning

Applying the Nguruman restatement that the Giella conditions are sequential and not alternative, and that failure to satisfy any one limb is fatal, the court held that once the prima facie case and irreparable harm limbs failed, the balance of convenience inquiry could not rescue the application.

p. 5

Legal principles established

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  • The three Giella conditions for an interlocutory injunction are sequential, not alternative, and failure to establish any one limb is fatal to the application

Court orders

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  1. 1.The interim reliefs sought are declined.
  2. 2.The prevailing status quo be maintained pending the hearing and determination of the main suit.
  3. 3.Costs of the application shall abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 3B
  • Civil Procedure RulesOrder 40 rules 1, 2, 4, 10; Order 51 rules 1, 4, 10, 11, 12, 13
  • Land Registration ActSection 26(1)
  • Law of Succession Act (Cap 160)Sections 26, 29, 40, 66
  • Evidence ActSection 118

Cases cited (6)

  • Giella v Cassman Brown & Company Ltd
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielsen, Herman Philipus Steyn (also known as Hermannus Phillipus Steyn) & Hedda Steyn
    [2014] KECA 606 (KLR)
  • Mrao Ltd v First American Bank of Kenya and 2 Others
    (2003) KLR 125
  • Rent Restriction Tribunal v Mayfair Bakeries Ltd ex parte Kirti Raval
  • Waithaka v Industrial and Commercial Development Corporation
    [2001] eKLR
  • Joseph Siro Mosioma v H.F.C.K and 3 Others
Jurisdiction invoked
Sections 1A, 1B, 3A and 3B of the Civil Procedure Act; Order 40 rules 1, 2, 4 and 10 and Order 51 of the Civil Procedure Rules; Section 26(1) of the Land Registration Act

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, "Konchellah (Suing as the Legal Representative of the Estate of Wilson Sonny Letuya Konchellah) v Konchellah & another (Environment and Land Case E124 of 2024) [2025] KEELC 5226 (KLR)", Case Analysis (2025). Not stated in the ruling (Notice of Motion dated 30th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5226/eng@2025-07-10

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