Opon v Board of Governors Tom Mboya Labour College (Environment and Land Case E018 of 2025) [2025] KEELC 5196 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff established a prima facie case with a probability of success to warrant a temporary injunction against the Defendant
- 2.Whether the Defendant was entitled to an injunction restraining the Plaintiff from alienating the suit land in the absence of a counterclaim
- 3.How the interests of justice require the suit land to be preserved pending hearing and determination of the suit
Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
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.
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.
Whether the Defendant was entitled to an injunction against the Plaintiff
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.
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.
Legal principles established
#- 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
#- 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.The Plaintiff restrained from alienating, selling, charging or transferring the suit land pending hearing and determination of the suit
- 3.Each party to bear own costs of the applications
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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.
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.
Issues in the judgment
#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.
The Supporting Affidavit of Dr. Francis Atwoli is dated '28th March 2925', an evident typographical error for 2025.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.