Odenyo v H Young & Co (EA) Ltd (Environment and Land Case E077 of 2025) [2026] KEELC 1349 (KLR)

Rule 1 provide that; “ where in any suit it is proved by afidavit or otherwise: a. that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully fold in execution of a decree; or b. that the defendant threatens to remove or dispose of his property in circumstances afiording reasonable probability that the plaintifi will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit the court may by order grant a temporary injunction to restrain such act or make such other orders for purposes of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 6. In order for the relief of temporary injunction to be available the appellant must therefore demonstrate the grounds provided in the law. 7. In 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. 8. Has the applicant demonstrated these grounds herein? Prima facie case was defined in Mrao Ltd vs First American Bank Kenya Ltd & 2 Others [2003] eKLR as follows: “ 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.” 9. In the present case, the Applicant pleaded that he is the lawfully registered proprietor of the parcel of land known as Kisumu/Songhor/1084, measuring 6.8 Ha (the suit land herein). That the Defendant illegally entered into the Plaintifi’s land without his consent or any colour of right and is wrongfully excavating, harvesting and ferrying murram and using it in a road construction adjacent to the suit property. 10. That the Defendant’s actions amount to trespass and conversion. That the actions are causing irreversible environmental degradation, destruction of the Applicant’s land profile and ecosystem, destabilisation of the soil structure and long-term impairment of beneficial use of the suit property which cannot be compensated adequately by damages. 11. That unless the court intervenes, the Defendant will continue with the unlawful activities thus making the eventual judgement herein hollow. 12. To the Supporting Afidavit, the Applicant annexed a copy of title deed to prove ownership of the suit land. The Applicant also annexed to the Supporting Afidavit was a copy of Report by County Surveyor dated 10th September, 2025, demand letter, valuation report and photographs of the site complained of. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1349/eng@2026-03-05 2

page 2 of 4

13. It was submitted on behalf of the Applicant vide the written submissions dated 27th January, 2026 that under the provisions of section 24 of the Land Registration Act, the Applicant is vested with exclusive ownership of the suit land together with all rights and privileges belonging or appurtenant thereto. That the question of whether the excavation took place on the suit land was considered by the survey report dated 10th September, 2025. That trespass has been demonstrated. 14. That the applicant has demonstrated a prima facie case and that unless the orders of interlocutory injunction is granted, the Applicant will sufier irreparable injury. The Applicant prayed that the application be allowed. 15. The case of the Respondent as contained in the Replying Afidavit is that its presence and activities on the ground were lawful, bona fide and lawfully sanctioned having been strictly carried out pursuant to a valid, binding and subsisting Lease Agreement dated 30th September, 2024 duly executed with the registered proprietor of Kisumu/Songhor/1045 thus vesting the Defendant with lawful authority and colour of right to enter and occupy and utilize the demised portion of the land being 2 acres of the property. That the Defendant paid to the owner of the land a total of Kshs.5,600,000 being consideration under the lease. That it was the registered proprietor of parcel No.1045 who physically identified and pointed out the fenced land to the Defendant. 16. That the Defendant is not and has not been in occupation of the Applicant’s property. 17. That the question of whether any encroachment occurred if at all is a purely technical issue of boundary identification and delineation incapable of accurate conclusive determination unless through properly conducted joint survey involving the Plaintifi and the registered proprietor of plot No.Kisumu/ Songhor/1045 and duly licensed surveyors in accordance with the applicable law and professional survey standards. 18. That the Application is misconceived, disproportionate, speculative and wholly inconsistent with the overriding objective of the court. 19. To the Replying Afidavit, the Respondent annexed a copy of lease agreement with the owner of plot No. Kisumu/Songhor/1045, copy of deed of variation, copies of payment advices evidencing payment of consideration under the lease and photographs. 20. It was submitted on behalf of the Respondent vide the written submissions dated 29th January, 2026 that the Applicant has failed to demonstrate a clear and uncontested violation attributable to the Respondent. 21. That a boundary dispute cannot be determined at the interlocutory stage. 22. Relying on the case of M’Mukanyi v M’Mbijiwe (1984) KLR 761 and Kahindi Ngala Mwagondi v Mtana Lewa [2014] eKLR, Counsel submitted that a boundary dispute cannot be converted into a trespass claim to attract injunctive relief. 23. Counsel submitted that under the provisions of sections 18 and 19 of the Land Registration Act, the jurisdictional sequence is that the first port of call is the Land Registrar who is supposed to handle the dispute in accordance with the provisions of section 19 of the Act. 24. That a County Surveyor’s report prepared at the instance of the one party without the Land Registrar’s inquiry and notice or participation of owners of all adjoining land is preliminary material capable of being used to trigger or support a boundary dispute. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1349/eng@2026-03-05 3

page 3 of 4

25. On whether damages are an adequate remedy, relying on the case of Kenled Cons Ltd v Gatitu Service Station Ltd & Another [1990] KLR 557 where it was held that and injunction will not normally be granted where the dispute involves contested issues requiring full trial, or where the alleged injury is capable of being compensated by damages, Counsel submitted that the Applicant had not demonstrated any unique or irreparable harm incapable of compensation by damages. 26. Counsel submitted further that the balance of convenience tilts decisively in favour of the Respondent because the Respondent has already ceased operation and there is no imminent or irreversible threat. 27. I have considered the application and all material placed before court in support and in opposition. 28. I find that the Applicant has established prima facie case, that he is the registered owner of the suit land and secondly, through the County Surveyor’s report that the activities of the Respondent were being carried out on the suit land. No Surveyor’s Report was placed before court by the Respondent to discount the County Surveyor’s Report and demonstrate that the activities complained of are being carried out within the confines of parcel No. Kisumu/Songhor/1045 as claimed by the Respondent. 29. It has not been denied by the Respondent that its activities included excavating, harvesting and ferrying of murram and that the actions have the efiect of causing irreversible environmental degradation, destruction of the subject land profile and ecosystem and destabilization of the soil structure and long term impairment of the beneficial use of the suit property. 30. I further find that the balance of convenience is in favour of preserving the suit land pending hearing of the case. 31. I find that the Applicant has prima facie demonstrated that the suit property is in danger of being wasted and/or damaged and ought to be protected pending hearing of the case. I allow the application. Costs to the Applicant. Orders accordingly. RULING DATED AND SIGNED AT KISUMU, READ VIRTUALLY THIS 5TH DAY OF MARCH, 2026 THROUGH MICROSOFT TEAMS ONLINE APPLICATION. E. ASATI JUDGE In the presence of: Maureen: Court Assistant. Hiram h/b for Kariuki for the Applicant. Kariuki h/b for Murende for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1349/eng@2026-03-05 4

page 4 of 4