Ndolo (Suing on Behalf of Elizabeth Kamene Ndolo) v Nol Turesh Loitokitok Water and Sanitation Company Limited & 9 others (Environment & Land Case E005 of 2020) [2025] KEELC 3839 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to stop water connections on Sultan Hamud land because an earlier court judgment already gave the defendants ownership rights.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff/Applicant has met the legal threshold for issuance of the injunctive orders sought
- 2.Who should bear the costs of the application
Key legal issues
#Whether the Applicant established a prima facie case with a probability of success
No - the 2nd to 10th Defendants' proprietary interest was declared by a judgment of the court that was not shown to be stayed, reviewed or set aside, rendering the trespass claim improbable
The court examined the pleadings and exhibits and found the judgment of 19th March, 2018 awarded the 2nd to 10th Defendants portions of the suit property with a permanent injunction against Elizabeth Ndolo. Without evidence that this judgment was stayed or set aside, the 1st Defendant's water connections under valid contracts with those Defendants could not constitute trespass. The Applicant therefore failed the first Giella limb.
Whether the remaining Giella limbs (irreparable harm, balance of convenience) required consideration
No - failure at the first sequential hurdle renders consideration of the other limbs unnecessary
Relying on Nguruman Limited v Jan Bonde Nielsen, the court treated the Giella conditions as sequential hurdles. Since the Applicant failed to demonstrate a prima facie case, the court declined to assess irreparable injury or balance of convenience, leaving all substantive claims for the full hearing.
Legal principles established
#- If a prima facie case is not established, irreparable injury and balance of convenience need not be considered
- An interlocutory application does not determine the issues for trial with finality
Court orders
#- 1.The amended Notice of Motion dated 26th July, 2024 is dismissed with costs to the 1st Defendant/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010
Relief refused
#Order restraining the Defendant from new water connections on Title No. IR 70883
No prima facie case established; the 2nd–10th Defendants hold proprietary interests under the judgment of 19th March, 2018 which was not shown to be stayed, set aside or reviewed
Temporary injunction restraining trespass and interference with Title No. IR 70883
Fails the Giella test at the first limb; other limbs need not be considered
Costs
Dismissed with costs to the 1st Defendant/Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the amended Notice of motion dated 26th July, 2024 is devoid of merit and is dismissed with costs to the 1st Defendant/Respondent.
The allegations of trespass into private property by 1st Defendant are highly improbable given the fact the 2nd – 10th Defendants have proprietary interests in the suit property which they are entitled to fully enjoy.
A conclusive determination of the entire claims by the parties herein can only be determined at a full hearing of the case.
Issues in the judgment
#The caption/case number of the suit is not included in the extract; the record begins directly with the application
The court refers to a 'replying affidavit sworn by Gabriel Wafula on 11th February, 2025' yet Respondent's submissions are also dated 11th February, 2025 - same-date coincidence not contradicted but noteworthy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndolo (Suing on Behalf of Elizabeth Kamene Ndolo) v Nol Turesh Loitokitok Water and Sanitation Company Limited & 9 others (Environment & Land Case E005 of 2020) [2025] KEELC 3839 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3839/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.