Koske & 3 others v Church of Living Elohim - Oreiyet Local Church (Environment and Land Appeal E008 of 2024) [2026] KEELC 1092 (KLR)
The bottom line
#Kenya's High Court set aside a permanent injunction because it was granted on vague 'interest of justice' grounds instead of proven irreparable harm.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate erred in granting a permanent injunction despite not proving ownership
The Appellants' argument that the injunction rested on ownership fails — the magistrate found trespass could be proved without ownership. However, the injunction was wrongly grounded on 'interest of justice' and protection from wastage, not on proof of irreparable harm, and was therefore set aside.
The court first rejected the Appellants' framing: the magistrate did not found the injunction on ownership, having held that in trespass one need prove only trespass and the right to sue, and the plaintiff having purchased the land had that right. The court then turned to the proper legal test for a permanent injunction as laid down in Mohamed Ndoge: it comes at the end of trial on a balance of probabilities where irreparable harm not compensable by damages is established. The trial court instead granted the injunction 'in the interest of justice' to protect the suit property from wastage — improper considerations. That ground of appeal succeeded.
Costs of the appeal
Although costs follow the event under Section 27 of the Civil Procedure Act, the court declined to award costs because the parties are members of the same church.
The court acknowledged the general rule that costs follow the event and that a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. It found good reason here: the Appellants and the Respondent are members of the same church, and an award of costs would widen the rift between them and affect the church's peaceful co-existence. Each party was ordered to bear its own costs of the appeal. The court declined to revisit trial-court costs since the memorandum of appeal did not challenge that finding.
Legal principles established
#- A permanent injunction is granted at the end of the trial, on a balance of probabilities, where irreparable harm not compensable by damages is shown; it cannot rest on general 'interest of justice' or property-preservation considerations.
- A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.The permanent injunction issued in the judgment delivered in Bomet CM ELC Case No. E021 of 2023 on 16th July, 2024 as against the Appellants is set aside
- 2.Each party shall bear own costs of the Appeal
- On appeal from
- Bomet Chief Magistrate's Court (Environment and Land Case)
- Bomet CM ELC Case No. E021 of 2023
- Jurisdiction invoked
- First appeal from the subordinate court to the High Court under Article 165 of the Constitution / appellate jurisdiction over magistrates' courts
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koske & 3 others v Church of Living Elohim - Oreiyet Local Church (Environment and Land Appeal E008 of 2024) [2026] KEELC 1092 (KLR)", Case Analysis (2026). Bomet High Court ELC Appeal (Memorandum of Appeal dated 16th July, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1092/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.