Obiero v Moretti alias Dianella Proske & another (Sued in their capacity as co-administrators of the Estate of the Late Lydushka Hornik Piotto) (Land Case E008 of 2025) [2025] KEELC 5939 (KLR)
The bottom line
#The Environment and Land Court refused to stop eviction proceedings over Karen land because the occupier could not show his rights were being infringed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a temporary order of injunction should issue pending the determination of the suit
Key legal issues
#Whether the plaintiff/applicant established a prima facie case for a temporary injunction
No prima facie case was established given the existing eviction order from the succession proceedings and absence of a demonstrated threat
The court applied Giella v Cassman Brown and Nguruman. Although ownership of the property is highly contested and the applicant claimed adverse possession over 18 years, the court found an order issued on 24th May 2024 in succession proceedings could not be ignored. On the affidavit material, no right appearing to have been infringed was shown, and no real or imminent threat to the applicant's possession was demonstrated, so the first hurdle failed and the discretion was not exercised in his favour.
Whether the other Giella conditions (irreparable harm, balance of convenience) needed consideration
It was unnecessary to consider them after failure of the first condition
Following Nguruman, the three conditions are sequential hurdles; failure at the prima facie stage disposes of the application without reaching irreparable injury or balance of convenience. The court therefore declined to weigh the applicant's submissions on destitution and the respondents' submissions on hardship to the estate administrators.
Legal principles established
#- An applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury, and balance of convenience
- In an interlocutory injunction application the court does not decide issues of fact but weighs the relative strength of each side's propositions
Court orders
#- 1.The notice of motion dated 14th January, 2025 is dismissed with costs to the defendants/respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 40 and 162(2)(b) of the Constitution; Sections 3 and 13 of the Environment and Land Court Act; Order 40 Rules 1, 4 and 10 and Order 51 Rules 1, 3, 4, 10 and 13 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Temporary injunction restraining the respondents from interfering with LR No. 10107 pending hearing of the application and the suit
The applicant failed to establish a prima facie case; an eviction order from succession proceedings exists and no real or imminent threat was shown
Order preserving the suit property pending hearing and determination of the application and the suit
Failure of the first Giella condition; the court declined to consider the remaining grounds
Costs
Dismissed with costs to the defendants/respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially
The correct approach in dealing with an application for the injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side's propositions.
Having scrutinized the material before me, I am not satisfied that the plaintifi/applicant has established a prima facie case.
The notice of motion dated 14th January, 2025 lacks merit and it is hereby dismissed with costs to the defendants/respondents.
Issues in the judgment
#Date of the eviction order in succession proceedings is inconsistently given as 13th May 2022 in the 1st defendant's affidavit, 24th May 2024 in the court's analysis, and the ruling striking out ELC No. 314 of 2016 [OS] is dated 5th December 2024 while the 2nd defendant refers to the dismissal of ELC No. E023 of 2023 [OS] on 5th December 2024
The 2nd defendant/respondent's replying affidavit is said to be sworn on 4th February, 2025, yet the applicant filed a further affidavit in response sworn on 12th February, 2025 - internally consistent; no contradiction. However the plaintiff's name is never stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obiero v Moretti alias Dianella Proske & another (Sued in their capacity as co-administrators of the Estate of the Late Lydushka Hornik Piotto) (Land Case E008 of 2025) [2025] KEELC 5939 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (ruling on notice of motion dated 14th January, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5939/eng@2025-08-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.