Juma v Odek (Environment and Land Case E001 of 2026) [2026] KEELC 4268 (KLR)

allegedly owned Parcel Number North Sakwa/Maranda/47 (herein suit property) land as part of an ancestral holding tracing its lineage through the Kamayuje Clan via the late Okoyo, then Akama, then Onyango (his grandfather), and finally the late Juma Onyango (his father). The Plaintifi claims that his father Juma Onyango died in 1977 before land demarcation was conducted in the area, and therefore did not acquire title deed. 3. The Plaintifi further contends Odek is not part of the family and was just but an employee of the plaintifi’s late father and that he came from Asembo West in Rarieda. It was not clear how Odek ended up owning part of the plaintifis’ fathers land since he was buried where he came from that is in his ancestral home in Asembo west. 4. It is noteworthy from the pleadings filed that Washington Odek Owiti is the defendant’s husband. The applicant avers that he learnt through the defendant of the above information and now demands an explanation under whose authority the defendant was cutting down trees and blocking access roads to the Plaintifi's home yet the suit property belongs to his late father. 5. The deponent states that it is unjust and unfair to allow the defendant to continue with such harassment and land grabbing when her husband was just an employee of his deceased father. 6. That unless the defendant is restrained the deponent stands to lose his land and late father’s grave. Attached are photos allegedly showing the blocked or closed road to both the deponents and his father’s home and the cut trees. Replying Afidavit 7. The defendant Petronala Nyagilo Odek, responded vide the replying afidavit sworn on 26/03/2026. She depones that Parcel Number North Sakwa/Maranda/47 is now known as Parcel Number North Sakwa/Maranda/4915 after subdivision belonged to her late husband Washington Odek Owiti who acquired it in 1970 before adjudication- she annexed a green card and upon adjudication in 1978 the same was registered in her deceased husband’s name. 8. She depones that her late husband was a Kenyan citizen and had a right to live anywhere in Kenya and denies that her husband was an employee of the plaintifi father. That her husband had two homes in North Ramba where he stayed with the 1st wife and was buried according to the luo custom and North Sakwa where he resided with her as the 2nd wife. 9. It is alleged that the plaintifi’s father was buried in Nyabenge in West Sakwa and not Maranda as alleged. That the plaintifi and his brothers have on several occasions destroyed the oficial boundary between North Sakwa/Maranda/46 and North Sakwa/Maranda/47. That she engaged government surveyors to determine the boundary but when she tried to fence, she was chased away by the plaintifi. 10. The deponent denies the allegations leveled against her and states that there is no oficial road passing through her land and that of the complainant’s home. She attributed the same to a bush clearing activity for boundary determination by the surveyors undertaken in the presence of both parties following the destruction by the plaintifi. 11. The deponent avers that the plaintifis brother Maurice Juma Asewe sued her in Kisumu Land Case No. 210 of 2013 where he failed to produce the green card in support of his claim and the court granted her authority to continue living in and utilizing the suit property as the legal beneficiary. The pleadings judgement and grant of letters of administration were attached. 12. The deponents avers therefore that the suit is res judicata by reason of the above suit which raised substantially identical issues and was determined in her favor favour. Further that the Plaintifi lacks https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4268/eng@2026-06-30 2

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locus standi to bring the proceedings as parcel North Sakwa/Maranda/46, which the Plaintifi's family claims, is registered in the name of the late Juma Onyango and not the plaintifi. Submissions 13. The application was disposed by way of written submissions. Plaintifis/Applicant Submissions 14. The Plaintifi/Applicant submitted that the suit property known as North Sakwa/Maranda/47 originally belonged to his late father, Juma Onyango, and that the Defendant’s late husband, Washington Odek Owiti, unlawfully acquired registration thereof after allegedly being allowed to settle on the land as an employee and licensee of the family. The Plaintifi contended that the Defendant had continued cutting trees, blocking access roads, and interfering with the Plaintifi’s occupation of the land, thereby necessitating injunctive relief pending the hearing and determination of the suit. The Plaintifi further argued that the Defendant had failed to demonstrate how the suit land was lawfully acquired, either through purchase or allocation by the Kamayuje Clan, and maintained that the title deed and Green Card relied upon by the Defendant were fraudulently obtained. 15. The Plaintifi further submitted that the Defendant had admitted in her Replying Afidavit that her late husband originated from Asembo and was not related to the Plaintifi’s family or clan, yet failed to explain the process through which the land was transferred into his name. The Plaintifi also challenged the alleged survey exercise undertaken on the suit land, arguing that no notice was issued by the Land Registrar or Government Surveyor and that the Defendant failed to produce documentary proof of the alleged boundary verification. In addition, the Plaintifi disputed the relevance of Kisumu Land Case No. 2010 of 2013 on grounds that he was not a party thereto and that no judgment or ruling had been annexed to establish the legal efiect of the said proceedings. Defendant/Respondent Submissions 16. On her part, the Defendant/Respondent submitted that the Plaintifi had failed to establish a prima facie case warranting the grant of a temporary injunction as espoused in the celebrated case of Giella v Cassman Brown & Co. Ltd. The Defendant argued that the Plaintifi lacked locus standi since he had not obtained Letters of Administration in respect of the estate of his late father, Juma Onyango, and therefore lacked legal capacity to litigate over the suit property. 17. The Defendant further maintained that the dispute was res judicata, the same having substantially arisen in Kisumu High Court Land Case No. 210 of 2013 filed by the Plaintifi’s brother, Maurice Osewe Juma, against the Defendant, which suit was allegedly dismissed in favour of the Defendant. Relying on the principles in Giella v Cassman Brown & Co. Ltd, the Defendant asserted that the Plaintifi had neither demonstrated irreparable harm incapable of compensation by damages nor established that the balance of convenience tilted in his favour. 18. The Defendant additionally submitted that the suit property initially belonged to the late Washington Odek Owiti who acquired and registered the same during the adjudication process in 1978, and that the Plaintifi and his brothers had merely been interfering with established boundaries while purporting to assert ownership over the Defendant’s parcel. The Defendant argued that the Plaintifi’s claim was frivolous, vexatious, and devoid of legal substratum, particularly because the Plaintifi had failed to tender evidence demonstrating proprietary rights over the suit property. Consequently, the Defendant urged the Court to dismiss both the application and the suit with costs for being an abuse of the court process. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4268/eng@2026-06-30 3

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Analysis and Determination 19. Having considered the Notice of Motion Application, the Replying Afidavit, the rival submissions and the applicable law, the following issues arise for determination: a. Whether the Plaintifi has locus standi to bring this suit. b. Whether the suit is res judicata vis-à-vis KSM HC Land Case No. 210 of 2013. c. Whether the Plaintifi/Applicant has established a case for the awarding of Injunctive orders. d. Who should bear the costs of this Application? Whether the Plaintifi has locus standi to bring this suit. 20. The Defendant pleads that the Plaintifi lacks locus standi to bring this suit. The objection is premised on the fact that Land Parcel Number North Sakwa/Maranda/46, the parcel in which the Plaintifi's family claims an interest, is registered in the name of the late Juma Onyango (the Plaintifi's deceased father). The Plaintifi has not obtained Letters of Administration to the Estate of the late Juma Onyango and therefore has no legal capacity to represent or act on behalf of that estate. 21. Section 45 of the Law of Succession Act, Cap 160, Laws of Kenya, requires that before the estate of a deceased person can be administered or dealt with, a grant must first be obtained from the court. 22. In addition Section 82(a) of the Law of Succession Act, Cap 160, Laws of Kenya, provides: Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers — (a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative. 23. The Court of Appeal in Trouistik Union International & Another v Jane Mbeyu & Another (2008) 1 KLR (G&F) 730 authoritatively held that the power to agitate a cause of action vested in a deceased person is conferred by Section 82(a) of the Law of Succession Act upon personal representatives and upon them alone. A duly appointed and confirmed personal representative, whether an administrator or executor, is the only entity seized of the legal capacity to either sue or be sued on behalf of a deceased person's estate. 24. The Court of Appeal in Alfred Njau & Others v City Council of Nairobi [1982-88] 1 KAR 229: to say a party has no locus standi means "he cannot be heard, even on whether or not he has a case worth listening to." 25. The respondent has alluded to the fact that the plaintifis claim is premised on parcel North Sakwa/ Maranda/46 which she alleges is registered in the name of the plaintifi’s father who is deceased. The record does not bear any title or green card in this regard and therefore this information is not substantiated and cannot be made a basis for rendering that the plaintifi lacks locus to bring this suit. 26. However, this Court notes that the Plaintifi's claim is not purely anchored on succession to his father's estate. There are also ancestral claims and therefore broadening the scope which includes the plaintifis’ ancestral interests as an individual who finds ancestry therein. He is also in occupation which the respondent seems to suggest he is claiming for adverse possession. 27. It is therefore the finding of this court that the Plaintifi is properly before this court as of his own rights. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4268/eng@2026-06-30 4

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Whether the suit is res judicata vis-à-vis KSM HC Land Case No. 210 of 2013. 28. The Defendant argues that this suit is res judicata by virtue of Kisumu High Court Land Case No. 210 of 2013 (Maurice Osewe Juma v Petronilah Odek & Fredrick Ochieng Odek), which was decided in the Defendant's favour. The Defendant contends that the issues raised in the present suit are identical to those raised in that earlier case. 29. The doctrine of res judicata is codified at Section 7 of the Civil Procedure Act which provides as follows: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. (2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation. (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 30. The Court of Appeal in the case of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR), outlined the factors to be considered as follows; For the bar of res judicata to be efiectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms; a) The suit or issue was directly and substantially in issue in the former suit. b) That former suit was between the same parties or parties under whom they or any of them claim. c) Those parties were litigating under the same title. d) The issue was heard and finally determined in the former suit. e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4268/eng@2026-06-30 5

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31. Applying these principles, the Court notes that while the subject matter (land in the Maranda area, the claim that Washington Odek fraudulently registered the suit land) is similar, the present Plaintifi, Patrick Otieno Juma, was not a party to Kisumu Land Case No. 210 of 2013. That case was brought by Maurice Osewe Juma, the Plaintifi's brother. 32. The Plaintifi herein is a distinct individual with potentially independent rights. The mere fact that both he and his brother are children of the late Juma Onyango does not, without more, mean they litigate under the same title or that judgment against one binds the other. 33. Moreover, a copy of the court’s decision in the said former suit has not been availed to enable this court consider whether the matter was finally determined on its merits. This Court therefore finds that the plea of res judicata, while raising serious concerns about the nature of the claim, is not made out with suficient certainty at this interlocutory stage to justify striking out the suit entirely. 34. The objection on the basis of the plea of res judicata cannot be sustained. Whether the Plaintifi/Applicant has established grounds for the awarding of Injunctive orders. 35. The application has been brought under the provisions of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law cited. It provides as follows: Order 40, Rule 1 Where in any suit it is proved by afidavit or otherwise— 36. 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 sold in execution of a decree; or b) that the Defendant threatens or intends 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 order for the purpose 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. The principles applicable in an application for an injunction were laid out in the celebrated case of “Giella – Versus - Cassman Brown & Co Limited (1973) E A 358” set the following conditions for the grant of a temporary injunction: “ First an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise sufier irreparable injury which would not adequately be compensated by an award of damages. Thirdly if the court is in doubt, it will decide an application on the balance of convenience.” 37. As such, the three (3) conditions set out in “Giella (supra)”, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This position has been reiterated in numerous decisions from Kenyan courts and more particularly in the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4268/eng@2026-06-30 6

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case of “Nguruman Limited - Versus - Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR” where the Court of Appeal held that: “ In an interlocutory injunction application, the Applicant has to satisfy the triple requirements to a) establishes his case only at a prima facie level, b) demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour. These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially…. See Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not suficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will sufier, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the Respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”. 38. What is a prima facie case was defined in the case of “MRAO Limited – Versus - First American Bank of Kenya Ltd & 2 others (2003) KLR 125”, where the court stated: “ So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would 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” 39. The Plaintifi's case rests on the following pillars: that the late Juma Onyango was the rightful owner of the land now known as North Sakwa/Maranda/47; that Washington Odek Owiti was merely an employee of the late Juma Onyango who resided in his homestead; that Washington Odek fraudulently registered the suit land in his name in 1978 without the knowledge of the Juma Onyango family; and that the Defendant, as successor to Odek's estate, has no valid title. 40. The Defendant has presented a Green Card showing Washington Odek Owiti as the registered proprietor from 1978; a Title Deed in her name (North Sakwa/Maranda/4915) issued on 28th August 2024 following subdivision; Letters of Administration to the estate of the late Washington Odek Owiti granted by Kisumu High Court in Succession Cause No. 1019 of 2013; 41. The starting point must be the provisions in Section 26 of the Land Registration Act, No. 3 of 2012, and articulated by the Court of Appeal in Wreck Motor Enterprises v Commissioner of Lands [1997] eKLR, that a registered title is indefeasible except in circumstances of fraud or misrepresentation. 42. The Plaintifi alleges fraud in the acquisition of title. The Plaintifi's supporting afidavit and witness statement (Thomas Oluoch Abiero) provide a narrative that Washington Odek was a stranger to the Kamayuje clan who came from Asembo West and was employed by Juma Onyango. The witness https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4268/eng@2026-06-30 7

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statement supports the Plaintifi's contention that Odek was buried back in his ancestral land in Asembo, suggesting he was not a native of Maranda, and that the manner in which he came to register the land remains unexplained. 43. These averments, while disputed by the Defendant, raise genuine triable issues. The Plaintifi has also produced photographic evidence of blocked roads and destruction of trees, and the Defendant has in her Replying Afidavit admitted to bush clearing activity on both parcels, albeit attributing it to surveyors. The Defendant also admits that the road is closed she contends there is no oficial road through her land. 44. This Court finds, that the Plaintifi has raised arguable issues suficient to constitute a prima facie case for purposes of this interlocutory application. 45. Having stated the foregoing I think the best trajectory will be for this court to be guided by the balance of convenience. In the case of “Pius Kipchirchir Kogo (Supra)” the balance of convenience was described thus; “ The meaning of balance of convenience will favour of the Plaintifi' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintifis, the inconvenience caused to the Plaintifi would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintifis to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintifi who will sufier. In other words, the Plaintifi has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”. 46. The Plaintifi's primary concerns appear to be the alleged destruction of trees on the suit land and the blocking of access roads to his home. With respect to the alleged destruction of trees, this is potentially compensable in damages, and the extent of the alleged destruction can be quantified at the full hearing. However, the preservation is a genuine concern since any further destruction of trees and physical alteration of the land during the pendency of the suit could cause irreversible damage to the status quo. 47. It would be prudent therefore to maintain the status quo to preserve and stop the wastage or substratum of the subject of the suit which also is the objective for the grant of orders of injunction. 48. The Defendant who holds title in her Replying Afidavit states that there is no oficial road passing through her land to the Complainant's home. This is a matter that can only be decided after hearing the parties. The court must also be aided by expert opinion on the same. The issue is highly contested and the best solution would be to take a cause that carries the lower risk of injustice were any party to be found in the wrong – see “Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR” the court stated “The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.” 49. It is necessary that the access should be made available and the remaining trees preserved. This Court notes the guiding principle in Pius Kimaiyo Langat v William Kipkemboi Chumo & another [2015] eKLR that the court ought to preserve the status quo pending determination of the main suit, particularly where the acts complained of are ongoing and irreversible. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4268/eng@2026-06-30 8

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50. The court therefore finds that the lower risk of injustice in the present case lies in preserving the suit property until the competing claims can be fully interrogated through evidence including whether there is an access road. Moreover, the respondent has not stated how this has inconvenienced her. She should await the final determination. 51. It is now well established that the issue of Costs is the discretion of Courts. I will make an order that costs shall abide the outcome of the main suit. 52. The following orders therefore issue to dispose of the Notice of Motion dated 28th January 2026, That the status quo on the suit property North Sakwa/Maranda/47 and/or its resultant subdivisions including North Sakwa/Maranda/4915 shall be maintained pending the hearing and determination of this suit in the following terms;1. That the Respondent Defendant, whether by herself, her agents, servants, employees, assigns, personal representatives and/or any other person claiming through her, be and is hereby restrained from selling, transferring, charging, alienating, subdividing, wasting, destroying trees thereon. 2. That the parties herein shall maintain the prevailing status quo obtaining on the suit property with regard to occupation, possession and user pending the hearing and determination of the suit. 3. That the Defendant shall reopen the access road within 14 days of this order for purpose of access to the Plaintifis home pending the hearing and determination of this suit. 4. The costs of the application shall abide the outcome of the main suit. DELIVERED AND DATED AT SIAYA THIS 30TH DAY OF JUNE 2026 HON. LADY JUSTICE A.E. DENA JUDGE 30/6/2026 Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of: Patrick Otieno Juma plaintifi Petronila Nyagilo Odek Defendant Court Assistant: Abiud Wekesa https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4268/eng@2026-06-30 9

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