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ELCAllowedNot stated in judgment (notice of motion dated 18th February, 2026)

Odhiambo v Ogwang’ alias Oketha (Land Case E005 of 2026) [2026] KEELC 3815 (KLR)

Environment and Land Court
18 June 2026
EAE. Asati
708 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisumu court stopped a landowner from building on or interfering with his neighbour's land after a surveyor confirmed encroachment.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Kisumu (E. Asati, J) on a notice of motion dated 18th February 2026 in which the plaintiff, Newton Lee Odhiambo, sought a temporary injunction restraining the defendant, Joshua Ouma Ogwang, from interfering with land parcel Kisumu/Wawidhi A11/1585 pending hearing and determination of the suit. The plaintiff relied on his registered title, alleging encroachment by the defendant who was erecting a permanent structure and had stationed individuals who harassed and intimidated those accessing the land. The defendant denied the claim, asserting that his activities were confined within his own parcel, Kisumu/Wawidhi A II/831. Applying the Giella vs Cassman Brown principles and the Mrao Ltd definition of a prima facie case, the court found the applicant's ownership uncontested and noted that a Surveyor's Report dated 17th June 2025 established that the defendant's parcel had encroached onto the suit land on the eastern side, with no evidence rebutting the report. Holding that a prima facie case with a probability of success was demonstrated and that the applicant's proprietary right was threatened with further violation, the court allowed the application. It granted a temporary injunction restraining the defendant and his agents from accessing, destroying, altering, further developing, constructing, alienating or in any manner acting adversely to the applicant's rights over the suit land pending hearing and determination of the suit, with costs of the application in the main suit.

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 has established a prima facie case with a probability of success
  2. 2.Whether the applicant would suffer irreparable injury not adequately compensable in damages
  3. 3.Whether a temporary injunction should issue restraining the respondent from interfering with land parcel Kisumu/Wawidhi A11/1585 pending hearing and determination of the suit

Key legal issues

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01

Whether the applicant demonstrated a prima facie case with a probability of success warranting a temporary injunction

Holding

Yes - the applicant exhibited a title deed to the suit land, ownership was not contested, and an unrebuted Surveyor's Report established encroachment by the respondent's parcel onto the suit land.

Reasoning

The court applied the Giella vs Cassman Brown test and the Mrao Ltd definition of a prima facie case. The applicant's title to Kisumu/Wawidhi A11/1585 was exhibited and uncontested. Although the respondent asserted his activities were confined to Kisumu/Wawidhi A II/831, a Surveyor's Report dated 17th June 2025 showed that parcel had encroached on the eastern side of the suit land, and no evidence rebutted that report. The applicant's proprietary right as registered owner was thus threatened with further violation.

p. 2

Legal principles established

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  • A prima facie case in a civil application includes but is not confined to a genuine and arguable case; it is a case in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party.

Court orders

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  1. 1.An order of temporary injunction restraining the Respondent by himself or his agents from accessing, destroying, altering, further developing, constructing, alienating and/or in any manner acting adversely to the rights of the applicant over land parcel Number Kisumu/Wawidhi A II/1585 pending hearing and determination of the suit
  2. 2.Costs of the application shall be in the main suit

The bench

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

EA
majority

Wrote the judgment

Jurisdiction invoked
Order 40 Rule 1 Civil Procedure Rules, 2010 (inherent civil jurisdiction to grant temporary injunctions)

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.

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 vs First American Bank)
An order of temporary injunction is hereby granted restraining the Respondent by himself or his agents from accessing, destroying, altering, further developing, constructing, alienating and/or in any manner adverse to the rights of the applicant over land parcel Number Kisumu/Wawidhi A II/1585 pending hearing and determination of the suit.
p. 2Final orders - temporary injunction granted
Costs of the application shall be in the main suit.
p. 2Final orders - costs

Issues in the judgment

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minor

Internal date inconsistency: the motion is dated 18th February 2026 but the supporting affidavit is stated to have been sworn on 18th February 2025, a year earlier.

minor

The replying affidavit is stated to have been sworn on 23rd February 2026 while the application is dated 18th February 2026; this is consistent, but contrasts with the applicant's affidavit year, suggesting a typographical error in the applicant's affidavit date.

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 Ogwang’ alias Oketha (Land Case E005 of 2026) [2026] KEELC 3815 (KLR)", Case Analysis (2026). Not stated in judgment (notice of motion dated 18th February, 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3815/eng@2026-06-18

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