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ELCPartially AllowedBomet High Court ELC Appeal (Memorandum of Appeal dated 16th July, 2024)· [2026] KEELC 1092 (KLR)

Koske & 3 others v Church of Living Elohim - Oreiyet Local Church (Environment and Land Appeal E008 of 2024) [2026] KEELC 1092 (KLR)

High Court of Kenya
26 February 2026
3,315 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the High Court at Kericho (L. A. Omollo, J) against the judgment of Hon. Boke CM in Bomet CM ELC Case No. E021 of 2023. In the subordinate court, the Respondent church sought a declaration of ownership of 0.15 acres of Kericho/Sigor/121, a permanent injunction against the Appellants, general damages for trespass, costs and interest. The trial magistrate declined the declaratory order (no title documents were produced) and general damages (none proved), but granted a permanent injunction barring the Appellants from interfering with the church premises, while expressly preserving their right to attend church services. The Appellants appealed, contending that an injunction could not issue where ownership had not been proved. The High Court, re-evaluating the matter as a first appellate court, held that the Appellants misapprehended the judgment: the magistrate did not rest the injunction on ownership, having correctly stated that proof of ownership is not required to sue for trespass, only proof of trespass and a right to sue. However, applying the Court of Appeal's decision in Mohamed Ndoge v Mohamed Golo Ndogo, the court found the magistrate erred by granting the permanent injunction 'in the interest of justice' to protect the property from wastage rather than on proof, on a balance of probabilities, of irreparable harm not compensable by damages. That ground of appeal succeeded and the permanent injunction was set aside. The court declined to revisit trial costs as they had not been challenged, and ordered each party to bear its own costs of the appeal, given the parties are members of the same church.

Key legal issues

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01

Whether the trial magistrate erred in granting a permanent injunction despite not proving ownership

Holding

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.

Reasoning

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.

p. 8
02

Costs of the appeal

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 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

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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, "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.