Njoga v Kassim (Environment and Land Case E068 of 2025) [2026] KEELC 61 (KLR)

3. The application was opposed vide the grounds of opposition contained in the Statement of Grounds of Opposition dated 21/11/2025- that the property which the plaintifi describes as Kisumu Municipality/Block 2/130 does not exist on the ground, on the Registry Index Map for Kisumu Municipality/Block 2 and on the Cadastral Map for Kisumu Municipality/Block 2. That the sale agreement relied upon by the plaintifi is neither dated nor registered and is therefore not admissible. That there is no proof of payment of the alleged purchase price of ksh 7,000,000/=. That the documents provided by the plaintifi to prove how she acquired the property such as the letter of allotment dated 7th January 1999 which does not refer to the suit property. 4. That the right to protection of property under article 40 of the Constitution does not extend to property that has been unlawfully acquired. That the plaintifi had made an application to be joined as a party in Land Acquisition Tribunal case No. E099 of 2025. That as at the time the plaintifi obtained the land which she describes as Kisumu Municipality/Block 2/130 from Walter Ominde Ogutu, the defendant had obtained an order dated 15/7/2025 which restrained Walter Ominde Ogutu from trespassing onto, encroaching entering occupying, fencing, developing, leasing, selling, disposing of or in any other manner whatsoever interfering with the suit property. That the actions of the plaintifi and her accomplices leading to her possession of the certificate of lease are void and as such are in law a nullity. The application was heard orally on 24/11/2025. 5. I have considered the application, the grounds of opposition and the oral submissions made. 6. The first relief sought is an interim order of temporary injunction. The grounds for grant of interlocutory injunction were set out in the case of Giella v Cassman Brown Co. Ltd (1973) 358 that the applicant must establish a prima facie case with a probability of success, an interlocutory injunction will not normally be granted unless the applicant would sufier irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience. 7. On what amounts to a prima facie case, the Court of Appeal in Mrao Ltd v First American Bank Kenya Ltd & 2 Others [2003] eKLR held that: “ 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.” 8. The grounds upon which the present application was brought are that the plaintifi is the registered owner of the suit land known as Kisumu Municipality/Block 2/130 which he bought from one Walter Ominde Ogutu at Ksh 7,000,000/=. That the Defendant has without justification, trespassed onto the suit property and threatened the applicant and her agents with violence thereby preventing the applicant from enjoying her property. That the respondent’s continued presence on the suit land and threats have instilled fear and insecurity leading to interference with the applicant’s development plans. That the respondent has no claim to the property. That the plaintifi stands to sufier irreparable loss and damage if the orders sought are not granted so as to maintain the status quo. That the balance of convenience tilts in favour of the applicant who merely seeks to protect her rights pending hearing of the suit. To demonstrate her ownership of the land, the applicant annexed to the Supporting Afidavit a copy of Certificate of Lease dated 28th July 2025 in her name for Land parcel No. Kisumu/ Municipality/Block 2/130 for a term of 99 years running from 9th November 1999, a land sale https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/61/eng@2026-01-20 2

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agreement and certificate of oficial search dated 1st October 2025 showing that as at the said date the suit land was registered in the name of the applicant. 9. The Respondent’s contention is that the suit land as described by the applicant does not exist on the ground or on the maps. There was no response by the applicant to this contention. 10. The court also notes from a copy of the complaint before the Tribunal which is annexed to the application that while the matter before the Land Acquisition Tribunal concerns land parcel No. Kisumu/Kogony/2688 measuring 6.5144 ha (16.0974) acres, the suit and the application herein concern land parcel No. Kisumu Municipality/Block 2/130 measuring 0.5 Ha as shown in the certificate of oficial search annexed to the application. These are 2 difierent parcels of land. And although in paragraph 7 of the Supporting Afidavit the applicant claims that the land the subject matter before the Tribunal allegedly includes and encompasses her property, no evidence has been exhibited before this court to demonstrate this. There is no evidence, at least prima facie, that the land the respondent is alleged to have interfered with is the suit land herein. 11. Without demonstrating the nexus between the suit land herein and the land the subject matter of the complaint before the Land Acquisition Tribunal, I find that the applicant has not established a prima facie case with a probability of success. 12. Guided by the decision in Nguruman Limited v Jan Bonde Nielson & 2 others [2014] eKLR that all the 3 conditions set in Giella v Cassman Brown are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially, I find that the applicant having failed to prove the first condition, the court need not interrogate whether the applicant will sufier irreparable injury if the order sought is not granted or the issue of the balance of convenience. The application for temporary injunction therefore fails. 13. The other relief sought is for an order of stay of execution of the proceedings before the Land Acquisition Tribunal. In the case of Kenya Wildlife Services -v- James Mutembei (2019)eKLR the court held that stay of proceedings should not be confused with stay of execution pending appeal. That stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. That the test for stay of proceedings is higher and stringent. 14. In the present case, the applicant having failed to establish a nexus between the suit land herein and the land the subject matter of the proceedings sought to be stayed, the court finds no ground for granting an order of stay of proceedings. 15. The court finds that the application lacks merit and dismisses it. Each party to bear own costs of the application. Orders accordingly. RULING DATED AND SIGNED AT KISUMU, DELIVERED VIRTUALLY THIS 20TH DAY OF JANUARY 2026. E. ASATI, JUDGE. In the presence of: Maureen -Court Assistant. Mulwa for the Plaintifi/Applicant Kojo for the Defendant/ respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/61/eng@2026-01-20 3

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