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ELCPartially AllowedBusia ELC No. 132 of 2016· [2026] KEELC 3952 (KLR)

Tera v Okello (Environment and Land Case 132 of 2016) [2026] KEELC 3952 (KLR)

Environment and Land Court
30 June 2026
1,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia land court granted a defendant more time to appeal a 2020 judgment but refused to stop the other side from blocking development, because that would contradict the court's final decision.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Busia (C. Mugambi, J) determined two applications. First, the Plaintiff's advocates gave notice withdrawing the Motion dated 18.6.2025, which had sought injunctive relief; the court allowed the withdrawal and ordered the Plaintiff to bear the costs of that application. Secondly, by Notice of Motion dated 11.11.2025, the Defendant/Applicant sought an injunction restraining the Plaintiff from stopping him from developing L.R No. SAMIA/BUDONGO/2353, and leave to appeal out of time against the judgment delivered on 29.4.2020. That judgment had directed the Land Registrar and Surveyor to demarcate the area comprising the homesteads, graves and family shrines, and provided that if that area fell within the Defendant's title, he would be compensated with commensurate acreage from L.R No. SAMIA/BUDONGO/2354. The court held that the injunctive prayer flew in the face of the decree and would amount to an attempt to alter the merits of a final judgment, re-opening conclusively determined issues and obstructing lawful execution of the decree, applying Njoroge v Munene. Interim prayer 2 had been overtaken by events. On extension of time, the court found that although the draft memorandum of appeal did not require the surveyor's report, no timeframe had been set for the demarcation and the uncontroverted averment that the survey took place on 6.4.2025 justified granting leave to appeal out of time. The application was allowed only to that extent; all other prayers were dismissed.

Key legal issues

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01

Whether an injunction could issue against execution of a final decree

Holding

No - the prayer contradicted the decree and could not stand

Reasoning

The decree contemplated that the homestead, graves and shrines might be on the Defendant's title, in which case he would be compensated with commensurate acreage from LR SAMIA/BUDONGO/2354. An order restraining the Plaintiff from stopping development would alter the merits of the final judgment, reopen conclusively determined issues, undermine finality in litigation and obstruct lawful execution of the decree, citing Njoroge v Munene.

p. 2
02

Whether leave to appeal out of time should be granted

Holding

Yes - extension of time granted

Reasoning

The decree set no timeframe for the demarcation exercise by the Land Registrar and Surveyor. The Applicant deponed that the survey only took place on 6.4.2025 and that averment was not controverted by the Respondent. Although the court was not convinced the survey report was needed to raise the grounds of appeal, these factors justified extending time.

p. 3

Legal principles established

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  • A prayer that flies in the face of a final decree amounts to an attempt to alter the merits of the judgment, undermining the finality of litigation

Court orders

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  1. 1.Notice of withdrawal of the Motion dated 18.6.2025 allowed with costs to the Plaintiff
  2. 2.Leave granted to the Applicant to appeal against the judgment delivered on 29.4.2020 out of time
  3. 3.Any other prayer not expressly granted dismissed
Jurisdiction invoked
Inherent jurisdiction to extend time for filing an appeal against its own judgment (ELC)

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, "Tera v Okello (Environment and Land Case 132 of 2016) [2026] KEELC 3952 (KLR)", Case Analysis (2026). Busia ELC No. 132 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3952/eng@2026-06-30

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