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ELCPartially AllowedNotice of Motion dated 25th October 2024 (ELC suit, Kakamega)

Ariga (Suing through its Executrix Emily Mayukuba Juma) v Luyegu (Environment & Land Case E023 of 2024) [2025] KEELC 4638 (KLR)

Environment and Land Court
18 June 2025
3,482 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega froze all dealings on a Kshs 48 million plot, protecting a long-term occupant from eviction until the ownership dispute is fully heard.

What this practically means

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Executive summary

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The applicant, claiming possession and development of L.R. Butsotso/Indangalasia/6XX6 worth over Kshs 48 million, moved the court by notice of motion dated 25th October 2024 seeking temporary injunction and inhibition orders against the respondent, the registered proprietor, alleging threats of eviction, demolition and interference with title, and asserting ownership by purchase and, in the alternative, adverse possession since 2002. The respondent opposed, contending the applicant had already been evicted pursuant to orders in Kakamega CMC Misc. Application No. E061 of 2024, that a High Court appeal was struck out for want of jurisdiction, and that the applicant lacked a prima facie case, being unsure whether she claimed as purchaser or adverse possessor. The respondent maintained she inherited the parent parcel through her late husband via succession, Kakamega High Court Succession Cause No. 12 of 2000, and that the applicant's husband had grabbed the land. The court framed two issues: res judicata and the injunction threshold. It held the suit was not res judicata because the former misc. court declined jurisdiction over ownership and thus never determined the issues with finality or on merit. Applying Giella v Cassman Brown and Nguruman, the court found a prima facie case with chances of success, potential irreparable harm given the property's value, and balance of convenience favouring the applicant's continued occupation. It allowed the application, granting an interim injunction preserving possession and an inhibition order under section 68 of the Land Registration Act, with costs in the cause. Judgment delivered at Kakamega on 18th June 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this suit is res judicata in view of the ruling in Kakamega CMC Misc. Application No. E061 of 2021 of 6th September, 2024
  2. 2.Whether the applicant has met the threshold for grant of temporary injunction and inhibition in regard to the suit property

Key legal issues

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01

Res judicata

Holding

The suit is not res judicata because the former misc. application was dismissed for want of jurisdiction; ownership was never determined on merit.

Reasoning

The former Kakamega CMC Misc. ruling did not determine whether the applicant owned the suit property by purchase or adverse possession; the lower court held it lacked jurisdiction, which belonged to the ELC. Res judicata requires a final determination on the merits by a competent court. Since the substantive issues were not decided with finality, the doctrine does not bar this suit.

p. 5
02

Temporary injunction

Holding

A prima facie case, irreparable injury and balance of convenience were all established; injunction granted.

Reasoning

The applicant's occupation and development of the property is conceded, raising an arguable claim of purchase and adverse possession. The property is valued at about Kshs 48 million, so damages may not adequately compensate. The respondent is registered proprietor, but the applicant's long occupation tilts the balance of convenience towards preserving possession pending trial.

p. 5
03

Inhibition order

Holding

An inhibition order under section 68 of the Land Registration Act issued to preserve the substratum of the suit.

Reasoning

Section 68 empowers the court to inhibit registration of dealings with land for a particular time, until an event, or until further order. Given the applicant's prima facie case and Kshs 48 million worth of buildings, it is fair and just to freeze title dealings pending determination to maintain the substratum of the suit.

p. 8

Legal principles established

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  • A suit is not res judicata where the former court declined jurisdiction and the issues were not determined with finality or on merit.
  • Temporary injunction requires a prima facie case with chances of success, irreparable injury not compensable in damages, and, if in doubt, the balance of convenience.
  • An inhibition order may issue to maintain the status of a title in the interests of justice pending determination of a suit.

Court orders

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  1. 1.Interim orders of injunction restraining the Defendant/Respondent, her heirs, representatives, agents, assigns or any other persons acting on her behalf, from evicting, demolishing, alienating, charging, dealing, disposing, entering, trespassing, erecting or pulling down structures or otherwise interfering with the Plaintiff/Applicant's and the estate's tenants' peaceful possession and occupation of L.R. Butsotso/Indangalasia/6XX6 pending hearing and determination of the main suit
  2. 2.An order of inhibition inhibiting the registration of any dealings whatsoever in regard to title for parcel No. Butsotso/Indangalasia/6XX6 pending hearing and determination of the suit
  3. 3.Costs of the application shall be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Order 40 Rule 1 of the Civil Procedure Rules and Section 68 of the Land Registration Act

Relief refused

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Preservation of the status quo obtaining as at 25th October 2024 (prayer f)

The court granted the substantive injunction and inhibition orders instead; no separate status quo order appears in the final orders.

Costs

The costs of the application shall be in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An order of inhibition is hereby issued inhibiting the registration of any dealings whatsoever in regard to title for parcel No. Butsotso/Indangalasia/6XX6 pending hearing and determination of this suit.
p. 9Final orders - inhibition
That pending the hearing and determination of the main suit filed herewith, the Court is hereby issues interim orders of injunction restraining the Defendant/Respondent, her heirs, representatives, agents, assigns, or any other persons acting under her authority or on her behalf, from evicting, demolishing, alienation, charging, dealing, disposing, entering, trespassing
p. 1Final orders - injunction
The costs of the application shall be in the cause.
p. 9Costs
For those reasons, I find and hold that this suit is not res judicata.
p. 5Res judicata
Where it is necessary to maintain the status of a title in the interests of justice, an inhibition order may issue.
p. 8Inhibition orders

Issues in the judgment

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minor

The issue for determination misdates the former misc. application as 'E061 of 2021' while the body of the judgment refers to 'Kakamega MCCCMISC Case No. E61 of 2024' and the ruling of 6th September 2024.

minor

The final orders state the application is 'dated 25th October 2025' whereas the application itself is dated 25th October 2024.

minor

The numbering of the final orders is irregular, repeating '25.' after paragraph 27 and restarting at 'a.' twice.

minor

The judgment inconsistently refers to the applicant as both 'he' and 'she'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ariga (Suing through its Executrix Emily Mayukuba Juma) v Luyegu (Environment & Land Case E023 of 2024) [2025] KEELC 4638 (KLR)", Case Analysis (2025). Notice of Motion dated 25th October 2024 (ELC suit, Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4638/eng@2025-06-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.