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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 23rd August 2025)· [2026] KEELC 3223 (KLR)

Odhiambo v Awino (Environment and Land Case 051 of 2025) [2026] KEELC 3223 (KLR)

Environment and Land Court
25 May 2026
4,416 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who occupied disputed land since 2003 won a court order stopping its owner from evicting her or selling it until trial.

What this practically means

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Executive summary

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The Applicant, Monica Akoth Odhiambo, moved the court by Notice of Motion dated 23rd August 2025 seeking a temporary injunction restraining the Respondent, the registered proprietor of LR No. Kanyada/K/Kanyango/5252 (0.06 Ha), from evicting, selling, trespassing on or otherwise interfering with the suit property pending the hearing of her suit. She claimed to have occupied and used the land openly and continuously since 2003, such that the Respondent's title had been extinguished by adverse possession, and relied on the threat of eviction and intended sale, evidenced by a demand notice. The Respondent denied her occupation, asserted his registered title (registered in 2018), argued the suit was res judicata given the prior Migori ELC Case No. 34 of 2017 between himself and John Nyambok Awino, and contended the 12-year limitation period had not run and that the Giella v Cassman Brown conditions were not met. The court framed three issues: res judicata, the injunction conditions, and costs. It found the suit not res judicata, as the Applicant was not a party to the earlier suit and the subject matters differed - the earlier suit concerned rectification of the register, while this suit seeks title by adverse possession. On the Giella test, the court found the demand notice and the Respondent's trespass allegations contradicted his denial of the Applicant's occupation, casting doubt on his credibility; a prima facie case was established. Irreparable harm was found in the potential destruction of the Applicant's structures and tenancies, and the balance of convenience favoured her. The court granted the temporary injunction as prayed, awarded costs to the Applicant, and directed an Order 11 compliance mention within thirty days and mention on 7th July 2026. The court also remarkably recommended investigation of the Respondent for alleged false swearing on oath.

Key legal issues

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01

Whether the suit is barred by res judicata (Section 7, Civil Procedure Act) given the prior Migori ELC No. 34 of 2017 litigation

Holding

The suit is not res judicata because the Applicant was not a party to the earlier suit and the subject matters differ - the earlier suit concerned cancellation and rectification of the register, while this suit seeks title by adverse possession.

Reasoning

The court compared the parties and subject matter of the two suits. In Migori ELC No. 34 of 2017 the parties were the Respondent, the Land Registrar and John Nyambok Awino; the Applicant here was not a party. The earlier suit sought cancellation and rectification of the land register, whereas the present claim is for acquisition of title by adverse possession. The subjects are therefore different, and the res judicata objection fails. Whether the 12-year occupation is made out is a matter for trial.

p. 5
02

Whether the Applicant established a prima facie case for a temporary injunction

Holding

Yes. The Applicant established on a balance of probability that she is in occupation of the suit property registered in the Respondent's name, supported by photographs, the demand notice and the Respondent's own trespass allegations.

Reasoning

The Applicant annexed photographs of rental units and structures on the land. Although the Respondent denied her occupation in his replying affidavit, he issued a written demand notice requiring her to vacate and in submissions called her a trespasser. These contradictions cast doubt on his credibility and corroborate the Applicant's occupation. The court found a prima facie case with a probability of success established.

p. 8
03

Whether the Applicant would suffer irreparable harm not compensable by damages

Holding

Yes. The structures and rental units erected on the land, and the tenancies they generate, would be destroyed upon eviction, a loss not compensable in damages.

Reasoning

The Applicant had invested in structures on the land. If evicted, the Respondent might destroy the structures, and tenants could not be restored to their premises in time. The structures now form part of the land and require protection by injunction pending trial.

p. 8
04

Balance of convenience

Holding

The balance of convenience tilts towards granting the injunction, given the Applicant's occupation and economic activities on the land.

Reasoning

Although the court was not in doubt on the first two limbs, it found that the Applicant's occupation and ongoing economic activities on the land tipped the balance of convenience in her favour.

p. 8

Legal principles established

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  • A suit cannot be res judicata where the parties and the subject matter differ from the former suit
  • The conditions for an interlocutory injunction must be surmounted sequentially, and if a prima facie case is not established the other limbs need not be considered
  • A respondent who issues a demand notice to vacate cannot credibly deny the claimant's occupation of the land

Court orders

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  1. 1.A temporary injunction restraining the Defendant/Respondent by himself, his agents or servants from entering upon, selling, evicting, trespassing onto and/or otherwise interfering or dealing with LR No. Kanyada/K/Kanyango/5252 measuring 0.06 Ha pending the hearing and determination of the suit
  2. 2.The Respondent to pay the costs of the application
  3. 3.Mention for compliance with Order 11 of the Civil Procedure Rules by filing of the trial bundle in thirty days
  4. 4.Mention on 7th July 2026
Jurisdiction invoked
Sections 13 and 19 of the Environment and Land Act; Article 159(2)(d) of the Constitution, 2010

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, "Odhiambo v Awino (Environment and Land Case 051 of 2025) [2026] KEELC 3223 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 23rd August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3223/eng@2026-05-25

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