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ELCPartially AllowedELC CASE NO. 56 OF 2023· [2026] KEELC 4898 (KLR)

Aggrey Odiwuor Kenyatta & another v Salibok & 4 others (Environment and Land Case 56 of 2023) [2026] KEELC 4898 (KLR)

Environment and Land Court
28 July 2026
NMN.A. MATHEKA
1,653 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Machakos court ordered everyone to keep things as they are on disputed land until the full case is heard, but refused the stronger orders.

What this practically means

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Executive summary

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This was an interlocutory application dated 19th June 2023 in ELC Case No. 56 of 2023 at the Environment and Land Court, Machakos, brought under Order 40 Rules 1 and 2 of the Civil Procedure Rules, Article 40 of the Constitution and Sections 1A and 1B of the Civil Procedure Act. The Plaintiffs, registered proprietors of adjacent parcels LR Nos. 28704 and 26524 in Mavoko Sub County, Machakos County, sought injunctions restraining the Respondents from selling, subdividing, developing or dealing with the parcels, a mandatory injunction to remove structures erected from 6th June 2023, police enforcement of the orders, and costs. They alleged that the 1st Respondent invaded the vacant parcels and began constructing a perimeter wall, claiming he had purchased the property from the 2nd and 3rd Respondents through the 4th Respondent, but produced no title documents. The 1st Defendant/Respondent opposed, stating he was caretaker of the 5th Defendant, a purchaser of a 50 by 100 feet plot, and that they shared no boundary with the suit plots. The court framed a single issue: whether the Applicant met the threshold for a temporary injunction, applying Giella v Cassman Brown and Order 40 Rule 1. Noting a County Surveyor's report confirming encroachment and irregular subdivision, but acknowledging it had not interrogated the documents and chronology, the court held the risk of not granting orders outweighed that of granting them. It ordered maintenance of status quo pending hearing of the suit, directed compliance with Order 11, and made costs to be in the cause. The mandatory and police-enforcement prayers were effectively not granted.

Key legal issues

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01

Whether the threshold for a temporary injunction under Order 40 Rule 1 was met

Holding

The court found the application merited on a risk-assessment basis, granting preservation of status quo rather than the full injunctions sought

Reasoning

The court applied the Giella v Cassman Brown test and Order 40 Rule 1. It noted the County Surveyor's report dated 11th July 2025 confirming encroachment and irregular subdivision of the suit properties. However, it reasoned that it had not had the opportunity to interrogate the documents, annexures, or the chronology of events leading to the position on the ground. Weighing the risk, it concluded that the risk of not granting temporary injunction orders outweighed that of granting them, and preserved the status quo pending trial.

p. 7

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with probability of success, irreparable harm not compensable in damages, and, if in doubt, the court decides on a balance of convenience (Giella v Cassman Brown)
  • At interlocutory stage the court does not resolve conflicts of affidavit evidence or decide difficult questions of law (Rockland Kenya Limited v Elliot White Miller)

Court orders

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  1. 1.Status quo be maintained pending the hearing and determination of the suit
  2. 2.Parties to comply with Order 11 and set down the matter for hearing
  3. 3.Costs to be in the cause
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules; Article 40 of the Constitution of Kenya, 2010; Sections 1A and 1B of the Civil Procedure Act

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, "Aggrey Odiwuor Kenyatta & another v Salibok & 4 others (Environment and Land Case 56 of 2023) [2026] KEELC 4898 (KLR)", Case Analysis (2026). ELC CASE NO. 56 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4898/eng@2026-07-28

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