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ELCDismissedNot stated in the judgment· [2026] KEELC 3201 (KLR)

Konchory v Ng’usur & 5 others (Environment and Land Case E030 of 2025) [2026] KEELC 3201 (KLR)

Environment and Land Court
28 May 2026
MMM.N. Mwanyale
1,263 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner failed to win an injunction because his own documents contradicted each other and a sale agreement he signed allowed the buyer to stay.

What this practically means

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Executive summary

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The Plaintiff/Applicant, registered owner of Transmara/Moyoi/259, moved the court by Notice of Motion dated 14.11.2025 seeking an interlocutory injunction against the Defendants/Respondents, alleging they threatened to enter the parcel in disregard of his ownership. The 5th Defendant, Simaga Soile, opposed, deposing that he occupied the parcel pursuant to a purchase from the Plaintiff under an agreement dated 21st May 2020, with no transfer effected because of a third-party caution; the other defendants were said to occupy adjacent parcels under similar agreements. The court framed four issues centred on whether the injunction threshold was met. Applying Giella v Cassman Brown and the definition of a prima facie case in Mrao v First American Bank, the court found the applicant's title problematic because the acreage of the suit parcel varied across the annexed documents (5.27 Ha, 135.27 Ha and 155.27 Ha), and because the 5th Defendant's occupation rested on a sale agreement executed by the Plaintiff that was not controverted by further affidavit. The applicant therefore failed to establish a prima facie case with probability of success; following Kenya Commercial Finance Company Ltd v Afraha Education Society, the court held the remaining Giella limbs required no consideration. The injunction application was dismissed. However, to preserve the suit property, the court issued status quo orders under Practice Direction 28K (Gazette Notice No. 5178/2014): the current occupant to continue subsistence activities including grazing and cultivation but no construction, and the registered owner not to transfer, charge or lease the parcel pending determination of the suit. Costs were ordered in the cause. Judgment dated 28th May 2026 at Kilgoris.

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success for an interlocutory injunction over Transmara/Moyoi/259

Holding

No prima facie case was established; the injunction was refused.

Reasoning

The applicant held a title deed, but the acreage of Transmara/Moyoi/259 differed across the annexures (5.27 Ha, 135.27 Ha, 155.27 Ha), showing the suit property's extent is disputed. The 5th Defendant occupied the parcel under an agreement for sale executed by the Plaintiff, a fact not controverted by further affidavit. Applying Giella v Cassman Brown and the Mrao definition of a prima facie case, the applicant failed the first limb, so the other limbs fell away.

p. 5
02

Whether the application was merited and what orders ought to issue

Holding

The application lacked merit, but the court issued status quo orders to preserve the suit property under Practice Direction 28K.

Reasoning

Having found no prima facie case, the court held it need not enquire into irreparable injury and balance of convenience, citing Kenya Commercial Finance Company Ltd v Afraha Education Society. Nonetheless, to preserve the substratum of the suit, the court invoked Practice Direction 28K (Gazette Notice No. 5178/2014) to maintain status quo: occupant to continue subsistence activities without construction, and the register frozen pending trial.

p. 5

Legal principles established

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  • Once a prima facie case is not established, the court need not consider irreparable injury and balance of convenience.
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and probability of success at trial.

Court orders

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  1. 1.The Notice of Motion dated 14.11.2025 seeking an injunction is dismissed for lack of merit.
  2. 2.An order for maintenance of status quo issued under Practice Direction 28K (Gazette Notice No. 5178/2014): the current occupant to continue on the property undertaking daily subsistence activities including grazing and cultivation but no construction; the register to remain unchanged - the registered owner not to transfer, charge and/or lease to a third party pending hearing and determination of the suit.
  3. 3.Costs in the cause.

Authorities

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Legislation

  • Practice Directions (Practice Direction 28K issued under Gazette Notice No. 5178/2014)Practice Direction 28K

Cases cited (3)

  • Giella Vs. Cassman Brown
  • Mrao Limited Vs. First American Bank Limited
  • Kenya Commercial Finance Company Ltd. Vs. Afraha Education Society
    (2001) I.E.A 86
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property Transmara/Moyoi/259; interlocutory application under Practice Direction 28K issued under Gazette Notice No. 5178/2014

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, "Konchory v Ng’usur & 5 others (Environment and Land Case E030 of 2025) [2026] KEELC 3201 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3201/eng@2026-05-28

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