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ELCDismissedNotice of Motion dated 11th March 2024 (Petition not stated on record)· [2025] KEELC 5677 (KLR)

Kelly & 4 others v County Government of Kajiado & 4 others; National Land Commission & 3 others (Interested Parties) (Environment and Land Petition E006 of 2023) [2025] KEELC 5677 (KLR)

Environment and Land Court of Kenya
31 July 2025
2,095 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop evictions near the Nolturesh River, holding that even registered landowners must prove their titles' history and actual harm.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kajiado (L. Komingoi, J) determines a Notice of Motion dated 11th March 2024 in which petitioners sought temporary injunctions restraining the respondents from evicting them from or interfering with parcels Loitokitok/Emperon/4011, 4016, 2919 and 4013, claiming violation of property rights after the Governor of Kajiado County allegedly ordered evictions around the Nolturesh Water Catchment area, followed by demolition of fences and houses and erection of beacons. The 1st and 2nd Respondents countered that the parcels border Nolturesh River, that the petitioners had encroached on riparian reserve, that compulsory acquisition did not arise because the encroached land is public land, and that the 1st Respondent acted under Section 42 EMCA, Rule 6(c) of the Water Quality Regulations, 2006 and Section 56 of the Physical and Land Use Planning Act. The court framed two issues: whether the application met the threshold for a temporary injunction, and costs. Applying Giella v Cassman Brown as restated in Nguruman, the court held that how the titles were acquired, whether the catchment is gazetted, and whether encroachment occurred are matters for evidence at trial, and until then the titles are indefeasible. However, the petitioners failed to show irreparable harm. The application was dismissed, the respondents directed to allow the 5th Petitioner to harvest his crops, and costs ordered to abide the outcome of the petition.

Key legal issues

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01

Whether the applicants met the Giella v Cassman Brown threshold for a temporary injunction

Holding

The application failed because the applicants did not establish irreparable harm; the merits questions (validity of titles, gazettement, encroachment) require evidence at trial

Reasoning

The court applied Giella v Cassman Brown as restated sequentially in Nguruman. It found the applicants' right to property claim required proof of how the titles were acquired and whether the land is riparian reserve, matters requiring evidence. It concluded no irreparable loss would follow from restraining applicants from staying on riparian land and dismissed the application.

p. 5
02

Indefeasibility of the applicants' title at interlocutory stage

Holding

The titles remain indefeasible until evidence establishes how they were acquired

Reasoning

The court noted the rival claims of registered ownership versus encroachment on riparian/public land and held that the mode of acquisition of titles must be established by tendered evidence before the court can determine the rights of the parties, preserving the presumption of indefeasibility pending trial.

p. 5

Legal principles established

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  • Until evidence is tendered to show otherwise, registered titles held by applicants are treated as indefeasible at the interlocutory stage
  • Applicants on land claimed to be riparian reserve cannot demonstrate irreparable harm merely by claiming registered ownership

Court orders

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  1. 1.The Notice of Motion dated 11th March 2024 is dismissed
  2. 2.Costs of the application to abide the outcome of the Petition
  3. 3.The 1st and 2nd Respondents directed to allow the 5th Petitioner to harvest his crops if any

Authorities

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Legislation

  • Constitution of KenyaArticle 62(2)
  • High Court (Practice & Procedure) RulesRule 3(1) & (2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRules 13, 19 and 23
  • Environmental Management and Coordination ActSection 42
  • Environmental Management and Coordination (Water Quality) Regulations, 2006Rule 6(c)
  • Physical and Land Use Planning ActSection 56(a)
  • Land Act, 2012 (Revised edition, 2019)Sections 152B, C, G, I

Cases cited (12)

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] KECA 606 (KLR)
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] KEELC 2424 (KLR)
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Southlake Panorama Limited v Kenya Electricity Transmission Company Limited & 3 others
    [2021] eKLR
  • Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot
    [2021] eKLR
  • Gathara v Athi Water Works Development Agency & 2 others
    [2022] KEELC 12633 (KLR)
  • Giella vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Aloys Mataya Moseti vs National Environment Management Authority & Another
    [2020] eKLR
  • Milimani Splendor Management Limited v National Environment Management Authority & 4 others
    [2019] eKLR
  • Naftali Ruth Kinyua v. Patrick Thuita Gachure & Another
    (2015) eKLR
  • Gehlot & Another v. African Banking Corporation Limited
    [2022] KEHC 96 (KLR)
  • Hassan Huri & another v Japhet Mwakala
    [2015] KECA 637 (KLR)
Jurisdiction invoked
Article 22 & 23 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights), per Rule 3(1)&(2) of the High Court (Practice & Procedure) Rules and Rules 13, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules

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, "Kelly & 4 others v County Government of Kajiado & 4 others; National Land Commission & 3 others (Interested Parties) (Environment and Land Petition E006 of 2023) [2025] KEELC 5677 (KLR)", Case Analysis (2025). Notice of Motion dated 11th March 2024 (Petition not stated on record). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5677/eng@2025-07-31

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