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ELCPartially AllowedNotice of Motion dated 12th September, 2025 (Eldoret)· [2026] KEELC 4043 (KLR)

Allibhai (Suing as administrators of the Estate of Kurbanali Allibhai Noor Mohamed) v Rivatex East Africa Ltd (Environment and Land Case E086 of 2025) [2026] KEELC 4043 (KLR)

Environment and Land Court
2 July 2026
5,013 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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An Eldoret court blocked Rivatex from leasing disputed land to third parties until a survey settles who truly owns the encroached portion.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Eldoret by C. K. Yano J determined the Plaintiff's Notice of Motion dated 12th September, 2025 seeking temporary injunctions to restrain the Defendant, Rivatex East Africa SEZ Limited, from proceeding with a tender to lease the textile mill and its property, Eldoret Municipality Block 12/164, pending trial, and alternatively a joint survey of the boundaries with the Plaintiff's parcel Block 12/160. The Plaintiff, executor of the estate of Kurbanali Allibhai Noor Mohamed, alleged that although Gazette Notices of 1975 indicated an intention to compulsorily acquire 56.5 acres from his father's land, only 10 acres were actually taken and compensated, yet the Defendant now occupies about 22 acres in excess, having fraudulently amalgamated Block 12/160 into Block 12/164, and now intends a 21-year lease to a third party. The Defendant countered that its title was lawfully acquired and indefeasible, that the lease was a lawful government-backed transaction, and that the suit was statute-barred. Applying the Giella v Cassman Brown principles, the court found a prima facie case established on the Survey of Kenya Ground Status Report, which confirmed parcel 164 was an amalgamation of parcels 159 and 160 belonging to the deceased. A 21-year lease would cause irreparable harm not compensable by damages. The claim was not time-barred since the Plaintiff sought only recovery of excess land beyond the properly acquired portion. The court declined, however, to enjoin leasing of the textile mill business itself, in which the Plaintiff had no interest. The motion partially succeeded: an injunction issued restraining the lease of Block 12/164, a joint survey was ordered, and costs were to abide the outcome of the suit.

Key legal issues

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01

Whether a prima facie case was established for the injunction against leasing Block 12/164

Holding

Yes - the Survey of Kenya Ground Status Report confirmed that Block 12/164 was an amalgamation of Blocks 12/159 and 12/160 belonging to the Plaintiff's deceased father, supporting the claim of excess occupation beyond the 10 acres actually acquired

Reasoning

The Gazette Notices showed intention to acquire 56.5 acres but intention to take possession of only 10 acres, with no notice for the remaining 46.5 acres. The Ground Status Report from the Survey of Kenya, the agency mandated over boundaries, confirmed parcel 164 is an amalgamation of parcels 159 and 160 which belonged to the deceased. At the interlocutory stage this established a prima facie case without delving into the merits.

p. 7
02

Whether irreparable harm not compensable by damages was demonstrated

Holding

Yes, as regards the land - a 21-year lease would introduce a non-party with acquired rights into the disputed land, requiring eviction proceedings if the Plaintiff succeeds

Reasoning

The purported strategic partner was not revealed nor joined to the suit, and no signed lease or change of name was attached to prove the lease. A lease of 21 years would introduce rights over disputed land and necessitate further eviction proceedings, constituting significant and/or irreparable harm. However, the Plaintiff had no interest in the textile mill business itself, so prayer (4) could not issue.

03

Whether a joint survey should be ordered

Holding

Yes - the Ground Status Report was prepared without notice to the Defendant, an affected party under Section 19(2) of the Land Registration Act, and a survey would assist the court conclusively

Reasoning

Section 19(2) of the Land Registration Act mandates the Land Registrar to deal with boundary issues and notify affected parties. The Defendant, as registered owner of one parcel, was an affected person but received no notice of the earlier survey visit. Since the matter had not proceeded to pre-trial directions or hearing, no prejudice would arise from ordering a joint survey by surveyors appointed by both parties.

p. 9
04

Whether the claim is barred by limitation under Section 7 of the Limitation of Actions Act

Holding

No - the Plaintiff does not seek to reverse the 1975 acquisition but only to recover excess land occupied beyond what was properly acquired and compensated

Reasoning

The Defendant argued the suit sought to reverse an acquisition perfected 50 years ago. The court held the argument unsubstantiated because the Plaintiff seeks only recovery of excess land occupied beyond the properly acquired and compensated portion. Further, time runs from discovery of the encroachment upon obtaining the surveyor's report in May 2025.

Legal principles established

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  • The conditions for grant of an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable in damages, and, if in doubt, the balance of convenience
  • Damages are not an automatic remedy and cannot be a substitute for protection of a crystallized right by injunction
  • A plaintiff recovering excess land occupied beyond a compulsory acquisition is not statute-barred, as he is not seeking to reverse the acquisition

Court orders

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  1. 1.A temporary injunction restraining the Defendant/Respondent, its agents, servants and/or employees from leasing out Eldoret Municipality Block 12/164 (which has encroached onto Eldoret Municipality Block 12/160) to third parties pending hearing and determination of the suit
  2. 2.A joint survey to be conducted by surveyors appointed by the Plaintiff/Applicant and the Defendant/Respondent to establish the boundaries of Eldoret Municipality Block 12/160 and Block 12/164
  3. 3.Costs of the application to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Land Registration ActSection 26
  • Land Registration ActSection 19(2)
  • Limitation of Actions ActSection 7
  • Land Acquisition Act 1968not specified

Cases cited (5)

  • Giella vs Cassman Brown & Company Limited
    (1973) EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    (2018) KEELC 2424 (KLR)
  • Mohamed vs Commissioner of Lands and 4 others
    KLR (E&L) 1 219
  • Joseph Siro Mosioma vs Housing Finance Company of Kenya Limited & 3 Others
    (2008) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (interlocutory application under Order 40 of the Civil Procedure Rules)

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, "Allibhai (Suing as administrators of the Estate of Kurbanali Allibhai Noor Mohamed) v Rivatex East Africa Ltd (Environment and Land Case E086 of 2025) [2026] KEELC 4043 (KLR)", Case Analysis (2026). Notice of Motion dated 12th September, 2025 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4043/eng@2026-07-02

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