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ELCPartially AllowedNot stated in judgment

Opon v Board of Governors Tom Mboya Labour College (Environment and Land Case E018 of 2025) [2025] KEELC 5196 (KLR)

Environment and Land Court
10 July 2025
1,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kisumu court stopped COTU from blocking a registered landowner's access but also froze the land's sale or transfer until the ownership dispute is fully heard.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kisumu (E. Asati, J) determines two interlocutory applications arising from an ownership dispute over land parcel Kisumu/Municipality Block 13/23. The Plaintiff, the registered proprietor, sought a temporary injunction restraining the Defendant, the Trustees of the Central Organization of Trade Union (COTU), from fencing off the land, blocking access, and interfering with his occupation and use, having discovered on 18th December 2024 that the Defendant had fenced the land, placed security guards on it, and lodged a caution. The Defendant, through its Chairman Dr. Francis Atwoli, opposed the application, contending that the Plaintiff's letter of allotment had lapsed after 30 days and that its title was therefore a product of illegality, relying on Torino Enterprises and Dina Management. The Defendant also brought its own application under Order 40 Rule 1 seeking to restrain the Plaintiff from alienating, selling, charging or transferring the suit land, citing the allegedly un-procedural removal of its caution. Applying the Giella v Cassman Brown principles, the court held that the Plaintiff had established a prima facie case with a probability of success, the Defendant holding no document of ownership of the suit land and its title relating to a different parcel (Block 13/2). The question of the validity of the Plaintiff's lease was reserved for trial. The Defendant's preservation application was also allowed since the caution was no longer in place and the land required preservation pending trial. Both applications were allowed; the Defendant was restrained from blocking the Plaintiff's access, the Plaintiff was restrained from alienating the land, and each party was ordered to bear its own costs of the applications.

Questions the Court framed

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

  1. 1.Whether the Plaintiff established a prima facie case with a probability of success to warrant a temporary injunction against the Defendant
  2. 2.Whether the Defendant was entitled to an injunction restraining the Plaintiff from alienating the suit land in the absence of a counterclaim
  3. 3.How the interests of justice require the suit land to be preserved pending hearing and determination of the suit

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes. The suit land is registered in the Plaintiff's name and the Defendant holds no document of ownership over it; the validity of the lease is a matter for trial.

Reasoning

The court found the suit land registered in the Plaintiff's name and that the Defendant's title relates to a different parcel (Block 13/2). The Defendant's allegation that the letter of allotment lapsed, rendering the title unlawful, was held to be a matter for determination at trial rather than at the interlocutory stage, so the Plaintiff satisfied the Giella test.

p. 4
02

Whether the Defendant was entitled to an injunction against the Plaintiff

Holding

The Defendant's preservation application was allowed because the suit land, being the subject matter of the suit, required preservation since the caution was no longer in place.

Reasoning

Although the Defendant had no document of ownership and its claim of a college built on the suit land was unsupported by evidence, the court allowed its application insofar as it sought preservation of the suit land from alienation pending trial, since the caution preserving the land had been removed.

p. 4

Legal principles established

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  • A registered proprietor is entitled to the protection provided by law, and to succeed on a temporary injunction the applicant must establish a prima facie case with a probability of success, irreparable injury not compensable in damages, and, in doubt, balance of convenience.

Court orders

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  1. 1.Temporary injunction restraining the Defendant from blocking the Plaintiff's access to or interfering with the Plaintiff's occupation and use of the suit land pending hearing and determination of the suit
  2. 2.The Plaintiff restrained from alienating, selling, charging or transferring the suit land pending hearing and determination of the suit
  3. 3.Each party to bear own costs of the applications

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules, sections 1A & B and 3A of the Civil Procedure Act (Cap 21)

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.

The court finds that on the basis of the evidence placed before court, the Plaintifi has established a prima facie case with a probability of success. Whether the lease held by the Applicant is valid or null and void, will be a matter of determination in the suit.
p. 4Prima facie case
Given that the suit land is the subject matter of the suit and as the caution is no longer in place it is important that the land be preserved pending hearing of the suit.
p. 4Preservation of subject matter
An order of temporary injunction is hereby issued restraining the Defendant from blocking the plaintifi's access and/or from interfering whatsoever with the plaintifi's occupation and use of the suit land parcel number Kisumu Municipality/Block 3/23 pending hearing and determination of the suit.
p. 4Final orders

Issues in the judgment

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minor

The final order refers to the suit land as 'Kisumu Municipality/Block 3/23' whereas the judgment elsewhere identifies it as Kisumu/Municipality Block 13/23.

minor

The Supporting Affidavit of Dr. Francis Atwoli is dated '28th March 2925', an evident typographical error for 2025.

minor

The supporting affidavit of Dr. Francis Atwoli is variously described as sworn on 28th March, 2025 for the Defendant's application and on 2nd May, 2025 in reply to the Plaintiff's application; the judgment does not clarify this discrepancy.

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, "Opon v Board of Governors Tom Mboya Labour College (Environment and Land Case E018 of 2025) [2025] KEELC 5196 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5196/eng@2025-07-10

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