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ELCDismissedNotice of Motion dated 4th November 2025 in suit over Land Parcel No. Kisumu/Municipality/Block 2/130

Njoga v Kassim (Environment and Land Case E068 of 2025) [2026] KEELC 61 (KLR)

Environment and Land Court
20 January 2026
1,354 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kisumu landowner failed to stop interference with her plot because she couldn't prove her land was the same one in a separate tribunal case.

What this practically means

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Executive summary

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The plaintiff/applicant moved the Environment and Land Court at Kisumu by Notice of Motion dated 4th November 2025 seeking a temporary injunction restraining the defendant from entering, cultivating on or otherwise interfering with land parcel Kisumu/Municipality/Block 2/130, a stay of proceedings in Land Acquisition Tribunal Case No. E099 of 2025 (Shaban Opiyo Kassim v Principal Secretary, State Department of Lands & others), enforcement of the orders by the OCS Dago Police Station, and costs. The applicant relied on a Certificate of Lease dated 28th July 2025 for a 99-year term, a sale agreement with Walter Ominde Ogutu for Ksh 7,000,000, and an official search. The defendant opposed through grounds of opposition, contending that the suit parcel does not exist on the ground or on the registry and cadastral maps, that the sale agreement was undated and unregistered, that no proof of purchase price existed, and that the plaintiff's acquisition was a nullity. The court applied the Giella v Cassman Brown tests as elucidated in Mrao Ltd and Nguruman Limited. It found the Tribunal complaint concerned Kisumu/Kogony/2688 (6.5144 ha), a different parcel from the 0.5 Ha suit land, and that no evidence exhibited the claimed nexus between them. The applicant therefore failed to establish a prima facie case, and the court did not reach irreparable injury or balance of convenience. Applying Kenya Wildlife Services v James Mutembei, the court held that stay of proceedings is a grave judicial action with a stringent test and found no ground for staying the Tribunal proceedings. The application was dismissed with each party bearing own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant established a prima facie case with a probability of success to warrant a temporary injunction
  2. 2.Whether the court should stay proceedings in Land Acquisition Tribunal Case No. E099 of 2025
  3. 3.Whether costs should follow

Key legal issues

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01

Whether a prima facie case was established for a temporary injunction

Holding

No prima facie case was established because the applicant failed to demonstrate any nexus between the suit land and the land the subject of the Tribunal complaint

Reasoning

The Tribunal complaint concerned Kisumu/Kogony/2688 measuring 6.5144 ha, whereas the suit concerned Kisumu/Municipality/Block 2/130 measuring 0.5 Ha. The court treated these as two different parcels. Despite the applicant's claim that the Tribunal land encompassed her property, no evidence was exhibited. Without that nexus, the alleged right and its infringement were not demonstrated, so the first Giella condition failed and the remaining limbs did not fall for consideration.

p. 3
02

Whether proceedings before the Land Acquisition Tribunal should be stayed

Holding

Stay of proceedings was refused as no ground was made out

Reasoning

Relying on Kenya Wildlife Services v James Mutembei, the court distinguished stay of proceedings from stay of execution pending appeal, observing that stay of proceedings is a grave judicial action that seriously interferes with a litigant's right to conduct litigation and carries a higher, stringent test. Since the applicant failed to establish the nexus between the suit land and the Tribunal proceedings, no basis existed for staying those proceedings.

p. 3

Legal principles established

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  • The three Giella conditions for an interlocutory injunction are separate, distinct and logical hurdles to be surmounted sequentially; failure of the first disposes of the application
  • Stay of proceedings is a grave judicial action with a higher and more stringent test than stay of execution pending appeal

Court orders

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  1. 1.The application for temporary injunction is dismissed
  2. 2.The application for stay of proceedings before the Land Acquisition Tribunal is dismissed
  3. 3.Each party to bear own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 40 of the Constitution and ELC jurisdiction over land disputes (temporary injunction under Giella v Cassman Brown principles)

Relief refused

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Temporary injunction restraining the defendant from interfering with Kisumu/Municipality/Block 2/130

Applicant failed to establish a prima facie case with a probability of success; no nexus demonstrated between the suit land and the Tribunal subject land

p. 3

Stay of proceedings in Land Acquisition Tribunal Case No. E099 of 2025

No nexus between the suit land and the land before the Tribunal; stay of proceedings is a grave judicial action with a stringent test

p. 3

Costs

Each party to bear own costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Without demonstrating the nexus between the suit land herein and the land the subject matter of the complaint before the Land Acquisition Tribunal, I find that the applicant has not established a prima facie case with a probability of success.
p. 3prima facie case - failure to establish nexus between parcels
The court finds that the application lacks merit and dismisses it. Each party to bear own costs of the application. Orders accordingly.
p. 3disposition - application dismissed with each party bearing own costs
a prima facie case in a civil application includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.
p. 2definition of a prima facie case (Mrao Ltd)

Issues in the judgment

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minor

The judgment variously describes the plaintiff as 'he' and 'she' within the same passages

minor

The case number of the principal suit is not stated in the ruling, which references only the Notice of Motion dated 4th November 2025

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, "Njoga v Kassim (Environment and Land Case E068 of 2025) [2026] KEELC 61 (KLR)", Case Analysis (2026). Notice of Motion dated 4th November 2025 in suit over Land Parcel No. Kisumu/Municipality/Block 2/130. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/61/eng@2026-01-20

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