Onguru v Akinyi & 5 others (Environment and Land Case E023 of 2026) [2026] KEELC 4887 (KLR)

themselves, their servants, agents and/or anyone whatsoever claiming title, deriving authority or acting on their behalf from trespassing, entering, tilling, remaining in occupation/continuing, construction on, mining, alienating, selling, cutting of trees or doing any act on land parcel known as LR NO. SIAYA/NYANGOMA/2679 pending the hearing and determination of this application. 2) THAT an order does issue directing the Land Registrar and Land Surveyor, Bondo, to visit land parcels LR NO. SIAYA/ NYANGOMA/2679 and LR NO. SIAYA/ NYANGOMA/2306 to ascertain whether the Defendants/Respondents have encroached upon and constructed structures on LR NO. SIAYA/ NYANGOMA /2679, and to file a report in court. 3) THAT An order directing the Land Registrar and the Land Surveyor, Bondo, to conduct a joint site visit to land parcels LR NO. SIAYA/NYANGOMA/2679 and LR NO. SIAYA/ NYANGOMA /2306 to ascertain whether the Defendants/Respondents have encroached upon and erected structures on the suit property, LR NO. SIAYA/NYANGOMA/2679, and to prepare and submit a comprehensive report thereon to this Court. 4) THAT the Officer Commanding Station (OCS), Bondo Police Station, be directed to enforce the orders issued by this Honourable Court to safeguard and protect the Plaintiff/Applicant’s access, ownership, RULING SIAYA ELC LC E023/2026 2

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possession, and quiet enjoyment of LR NO. SIAYA/NYANGOMA/2679 against any encroachment or interference by the Defendants/Respondents 5) THAT the costs of this Application be awarded to the Applicant. 2 The application is premised on the grounds on its face and the supporting affidavit sworn on 23rd June 2026. The Applicant depones that he is the registered proprietor of the suit property known as LR NO. SIAYA/NYANGOMA/2679 for which a Title Deed was duly issued in his name. 3 That the Defendants/Respondents herein are his neighbours and own parcel of land registered as LR NO. SIAYA/NYANGOMA/2306 registered under JOSEPH AKINYI OGALO who is the 1st Defendant’s deceased husband, 5 th & 6th Defendants’ father and brother to 2 nd 3rd and 4th Defendant respectively. 4 The Applicant contends that in or around January 2024 and November 2025, the Defendants/Respondents, without his consent, permission or authority unlawfully entered upon his parcel of land LR NO. SIAYA/NYANGOMA/2679 and erected six (6) permanent structures thereon. 5 It is the Plaintiff/Applicant’s further deposition that despite lodging a formal complaint with the area chief who advised the Defendants/Respondents to vacate the suit property, the Respondents refused to comply. Instead, they escalated their acts by cutting down trees and RULING SIAYA ELC LC E023/2026 3

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carrying out unauthorized mining activities on the suit land. 6 That the unlawful and illegal acts of the Defendants/Respondents’ have caused him damages and has further denied him his rights to use and possess the land he legally owns resulting to him suffering loss and damages. 7 The Applicant states his attempt to enter upon his legally acquired land have been frustrated by the Defendants/Respondents who have wilfully refused to vacate the suit land denying him the right to peacefully occupy and enjoy the property. 8 The Applicant prays for the orders of temporary injunction to issue as prayed. 9 The Defendants did not respond to the application despite having been served as evidenced by the Affidavit of service sworn on 6/7/2026 by Enos Mulima Lubutsi. SUBMISSIONS 10The Court ordered that the Application be disposed of by way of written submissions. However, as at the time this court retired to write this determination no written submissions were on record. The Court shall proceed to consider and determine the Application based on the material on record. ANALYSIS AND DETERMINATION RULING SIAYA ELC LC E023/2026 4

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11I have considered the Notice of Motion application, the Supporting Affidavit sworn by the Plaintiff/Applicant and the annexures thereto. The following issues commend determination: 1) Whether the Plaintiff/Applicant has met the requisite conditions to warrant the granting of temporary injunction. 2) Whether the Court should issue an order directing the Land Registrar and Land Surveyor to visit the site and file a report. 3) Who bears the costs of the Application? 12 The application is brought under the provisions of Order 40 rules 1,2,3(3) of the Civil Procedure Rules and Section 63(e) of the Civil Procedure Act. 13 The law governing the granting of interlocutory injunction is set out under Order 40(1) (a) and (b) of the Civil Procedure Rules 2010 which provides that: "Where in any suit it is proved by affidavit 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 sold in execution of a decree; or (b) That the defendant threatens or intends to remove RULING SIAYA ELC LC E023/2026 or dispose of his property in 5

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circumstances affording reasonable probability that the plaintiff 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.." 14 The conditions for consideration in granting an injunction were settled in the celebrated case of Giella v Cassman Brown & Company Limited (1973) E A 358, where the court expressed itself on the condition’s that a party must satisfy for the court to grant an interlocutory injunction as follows: "Firstly, 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 suffer 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." 15 Thus, the first question this court ought to ask is whether the Applicant has established a prima facie case. A prima RULING SIAYA ELC LC E023/2026 6

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facie case was defined by the Court of Appeal in Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 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 presented to the which, court, a on the material 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.” 16 The Applicant has attached copies of the Title Deed for LR NO. SIAYA/NYANGOMA/2679, proving registered ownership, along with an official search for the adjoining parcel LR NO. SIAYA/NYANGOMA/2306. Indeed, it is trite that by dint of section 26 (1) of the Land Registration Act the holder of a title should be taken as the prima facie registered owner of the suit property unless illegality and fraud is proved. An area map sheet has been presented confirming a common boundary and photographs of some structures that are alleged to have been illegally erected in the Applicants suit property. For the reason that there has been no rebuttal from the respondents I would not hesitate to make a finding that a prima facie case has been established. 17 It is noteworthy that the existence of a prima facie case is not itself sufficient. RULING SIAYA ELC LC E023/2026 7

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18 However, the Applicant has deponed that the defendants parcel adjoins the suit SIAYA/NYANGOMA/2679, and property LR NO. states that the respondents have illegally encroached and that they are trespassers. The allegations of encroachment connote a boundary dispute in view of the fact that the two parcels herein border each other. It could also connote a land ownership dispute depending with the extend of the encroachment. 19 This court notes that one of the reliefs sought in the application is for an order directing the Land Registrar and Land Surveyor, Bondo, to visit the two land parcels to ascertain whether the Defendants/Respondents have encroached upon and constructed structures on LR NO. SIAYA/ NYANGOMA /2679, and to file a report in court. 20 The above prayer clearly evinces that the Applicant is not even sure whether the structures and the other activities alleged to be wasting his land are actually being undertaken within the applicant’s land or in the defendant’s land. 21 The court therefore is in doubt and must therefore resort to the balance of convenience and on whose side it tilts. 22 In the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai [2018] eKLR, the court in dealing with the issue on balance of convenience held as follows: RULING SIAYA ELC LC E023/2026 8

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“The meaning of balance of convenience in favour of the plaintiff is that if the injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the inconvenience to the plaintiff 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 plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer? In other words, the plaintiffs have to show that the comparative inconvenience which is mischief from the likely arise from to withholding the injunction will be greater than which is likely to arise from granting it.” 23 I have reviewed the pleadings and they reveal that the issue has permanent been protracted structures are to the alleged extent to that have six been constructed by the defendants since the issue started. The interim orders sought if granted without caution at this interlocutory stage could lead to eviction. It is therefore prudent that the issue of whether the defendants have encroached and to what extent is resolved. This will then enable the court to gauge the nature of the orders that RULING SIAYA ELC LC E023/2026 9

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must be issued to preserve the encroached portion if at all while awaiting the hearing on merits. 24 In view of the foregoing this court makes the following orders to dispose of the application dated 23/06/2026. 1) That the Land Registrar and Land Surveyor Bondo, are hereby directed to conduct a joint site visit to land parcels LR NO. SIAYA/NYANGOMA/2679 and LR NO. SIAYA / NYANGOMA /2306 within thirty (30) days of service of this Order, to establish and confirm whether there is any encroachment by the registered owners of the SIAYA/NYANGOMA/2306 SIAYA/NYANGOMA/2679 parcel into LR LR NO. NO. and prepare and file a joint survey report which will also include a ground status report to this Court within Twenty One (21) days after the said visit. 2) That the Officer Commanding Station (OCS), Bondo Police Station, shall provide necessary security to ensure peace during the conduct of the joint site visit above. 3) The costs of the survey shall be borne by the Applicant. It is so ordered Dated at Siaya this 29th Day of July 2026 HON. JUSTICE A. E. DENA JUDGE RULING SIAYA ELC LC E023/2026 10

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29/07/2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: No appearance for plaintiff /Applicant No appearance for the Respondents Court assistant: Abiud Wekesa RULING SIAYA ELC LC E023/2026 11

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