Festo v Egesa & 2 others (Environment and Land Constitutional Petition E003 of 2025) [2026] KEELC 3827 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped an eviction, ruling that court orders cannot be enforced against people who were never given a chance to be heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioner/applicant has established a prima facie case with probability of success
- 2.Whether the petitioner/applicant has shown risk of irreparable harm not compensable by damages
- 3.Where the balance of convenience lies and whether the constitutional threshold for conservatory orders has been satisfied
Key legal issues
#Whether the limitation defence bars the constitutional petition
The limitation defence fails because the Constitution prescribes no timelines for claims alleging violation of rights.
The 1st respondent argued that the claim was time-barred under Sections 4(1) and 7 of the Limitation of Actions Act because the land registers were closed on subdivision in 1984. The court held that a constitutional petition alleging violation of rights has no prescribed timeline and the Limitation of Actions Act cannot defeat it. Further, the petitioner's occupation predates the respondent's title, and such occupation is an overriding interest protected by Section 28 of the Land Registration Act, 2012.
Enforceability of eviction orders against non-parties
Eviction orders from the lower court suit cannot be enforced against the petitioner or his family members who were neither parties nor afforded a hearing in that suit.
The eviction orders in Busia CM ELC No. 18 of 2016 were obtained against Chrispinus Ekisa alone. The petitioner, though claiming an interest in the land, was not a party or witness in that suit, and the plaint disclosed no representative capacity. If the 1st respondent wished to evict the petitioner and his family, he needed to make them parties or sue the defendant representatively. Accordingly, the orders bind only the defendant in that suit.
Whether the petitioner established a prima facie case and entitlement to conservatory orders
The petitioner made out a prima facie case with high probability of success as to some prayers, and interim injunction and stay were warranted.
The court found the petitioner and his family had been in long occupation of the suit land under a claim of entitlement, constituting an overriding interest. The 1st respondent's own title documents contradicted his claim that parcel 1488 was a subdivision of 803. Depriving the petitioner of occupation without a hearing would cause irreparable damage, and the balance of convenience favoured maintaining occupation pending the hearing of the Petition.
Failure to annex supporting documents to the affidavit
The petitioner's failure to annex supporting documents to his affidavit rendered the averments unsupported, though the court still considered the respondent's affidavit evidence.
Rule 11(2) of the Mutunga Rules requires documents relied upon to be annexed to the supporting affidavit or Petition. The petitioner filed documents separately rather than annexing them, rendering his affidavit averments unsupported by the intended documentary evidence. Notwithstanding, the court proceeded on the 1st respondent's replying affidavit, noting inconsistencies in his own evidence regarding the subdivision history of the parcels.
Respondent's jurisdiction objection based on boundary dispute
The court questioned the jurisdiction objection, noting it implied the respondent's own suit below may have been a boundary dispute outside the lower court's jurisdiction.
The 1st respondent contended the claim was a boundary dispute reserved for the Land Registrar under the Land Registration Act. The court observed that the defendant in the lower court suit claimed occupation of parcel 803, so if the present dispute is a boundary dispute, the lower court suit may equally have been one. The 1st respondent also did not deny the petitioner's claim that a Land Disputes Tribunal had determined entitlement in the petitioner's favour.
Legal principles established
#- Eviction orders obtained in a suit cannot be enforced against persons who were not made parties to that suit and were not afforded an opportunity to be heard
- Long-standing occupation of land under a claim of entitlement constitutes an overriding interest under Section 28 of the Land Registration Act, 2012 against a registered proprietor's title
- The Limitation of Actions Act cannot be used to defeat a constitutional petition alleging violation of rights, as the Constitution prescribes no timelines for such claims
Court orders
#- 1.An order of interim injunction restraining the 1st respondent, his agents and the police from enforcing eviction orders or interfering with the petitioner's occupation of parcel number South Teso/Angoromo/803 and/or any resultant portion therefrom, pending the hearing and determination of the Petition
- 2.An order of stay of execution of the eviction order issued in Busia CM ELC No. 18 of 2016 pending the hearing and determination of the Petition
- 3.Costs of the application to abide the outcome of the Petition
- 4.Directions that the parties, with the help of the Deputy Registrar, ensure the Petition is heard and determined within 6 months
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya, 2010 - Petition alleging violation of fundamental rights and freedoms (Articles 28, 40, 47 and 50) under the Mutunga Rules, 2013
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Grant of an order of interim injunction restraining the 1st respondent, by himself, his agent and the police from enforcing eviction orders or interfering with the petitioner’s/applicant’s occupation of parcel number South Teso/Angoromo/803 and/or any resultant portion therefrom, which order I hereby grant to him pending the hearing and determination of the Petition
Grant of an order of stay of execution of the eviction order issued in Busia CM ELC No. ELC No.18 of 2016 pending the hearing and determination of the Petition
the said eviction orders cannot be enforced against the petitioner/applicant herein or any other member of the petitioner’s/applicant’s family who was not made a party to the suit and offended an opportunity to be heard in the suit in which the orders were sought and obtained
the occupation of the suit property by the petitioner/applicant and his family members is an overriding interest to the rights of the 1st respondent as a registered proprietor of the suit property
Costs of the application shall abide the outcome of the Petition.
Issues in the judgment
#Discrepancy in the number of the lower court suit: the judgment variously refers to 'Busia CMCC ELC Case No.18 of 2016' decided 6th May 2021 and 'Busia CMC ELC No. 18 of 2021' in the respondent's affidavit
Discrepancy in the LDT case number relied on: the petitioner's submissions cite Busia LDT Case No. 13 of 2008 while the Petition's supporting documents refer to Busia LDT Case No. 48 of 2009
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Festo v Egesa & 2 others (Environment and Land Constitutional Petition E003 of 2025) [2026] KEELC 3827 (KLR)", Case Analysis (2026). Busia ELC Const. Pet. No. E003 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3827/eng@2026-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.