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ELCPartially AllowedNot stated in judgment (Vihiga ELC)

Chitwah (Suing in His Capacity as the legal Administrator of Benson Chitwah Mandu) v Anyula (Enviromental and Land Originating Summons E009 of 2025) [2025] KEELC 5266 (KLR)

Environment and Land Court
10 July 2025
1,653 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court has blocked a landowner from evicting a long-term occupier until a full trial decides who truly owns the land.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Vihiga (E. Asati, J) determined the plaintiff's Notice of Motion dated 6th May 2025 in an adverse possession suit over land parcel Weat Bunyore/Essaba/1654. The applicant, claiming to be the legal representative of Benson Chitwa Mandu (deceased), sought a temporary injunction restraining the defendant from evicting him or interfering with his use and occupation of the suit land, plus an order for police enforcement and costs. The defendant, the registered owner who obtained title through Succession Cause No. 211 of 2022, opposed the application, asserting open, peaceful and uninterrupted possession, a permanent house and developments on the land, and that the plaintiff's April 2025 entry amounted to trespass and criminal damage. The court applied the Giella v Cassman Brown principles and the Mrao definition of a prima facie case. Relying on a Chief's letter of July 2022 evidencing the deceased's utilization of the land and, decisively, on a 2015 advocate's notice to vacate whose existence and contents were not denied, the court found the applicant was in use and occupation of the land while title stood in the respondent's name. The court held it was in the interest of justice to preserve that status quo, leaving questions of adverse possession, trespass and extinguishment of the respondent's rights for trial. The application was allowed: a temporary injunction was issued and costs were ordered to abide the main suit. No order for police enforcement was included in the final orders.

Questions the Court framed

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

  1. 1.Whether the applicant has established grounds for grant of a temporary injunction pending hearing and determination of the Originating Summons

Key legal issues

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01

Whether the applicant established a prima facie case warranting preservation of the status quo

Holding

Yes; the 2015 notice to vacate showed the applicant was in use of the suit land, and the current status quo of applicant's occupation and respondent's registration should be maintained pending trial

Reasoning

The court found the Chief's letter evidenced some utilization by the deceased, though not conclusive and not showing extent. The 3rd February 2015 notice to vacate, whose existence and contents were not denied, demonstrated the applicant was in use of the land well before April 2025. It followed that the applicant is currently in use and occupation while the land is registered in the respondent's name, and maintaining that status quo pending trial serves the interest of justice.

p. 3
02

Whether the applicant has acquired title by adverse possession

Holding

Not decided at the interlocutory stage; left for trial

Reasoning

The court held that questions whether the applicant's presence amounted to adverse possession or mere trespass and criminal destruction of property, and whether the respondent's rights were extinguished under the Limitation of Actions Act, were matters for the hearing of the main suit. The interlocutory application was determined solely on preservation of the status quo.

p. 3

Legal principles established

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  • Ingredients for a temporary injunction under Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not adequately compensable in damages, and balance of convenience where the court is in doubt

Court orders

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  1. 1.Pending the hearing and determination of the Originating Summons, a temporary injunction restraining the Defendant, his agents and/or servants from evicting the applicant from and from interfering with the applicant's use of land parcel Weat Bunyore/Essaba/1654
  2. 2.Costs to abide the main suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 51 Rule 1, Order 24 Rule 4(i), Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Relief refused

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Order directing the OCS Embali police station to enforce the injunction

Not provided for in the final orders

Costs

Costs to abide the main suit

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.

Pending the hearing and determination of the Originating Summons herein, an order of temporary injunction is hereby issued restraining the Defendant, his agents and/or servants from evicting the applicant from and from interfering with the applicant’s use of the suit land parcel number Weat Bunyore/Essaba/1654.
p. 4Final orders - temporary injunction
From this letter, it is clear that as at the date of the letter, the applicant was in use of the suit land. The existence or contents of this letter were not denied.
p. 3Evidential value of the notice to vacate
Whether the applicant’s presence on the land has amounted to adverse possession or is just an act of trespass and criminal destruction of property or whether the Respondent’s rights have become extinguished are matters to be canvassed in the hearing of the main suit.
p. 3Issues reserved for trial

Issues in the judgment

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minor

Internal inconsistency in date of the notice to vacate letter: earlier described as dated 3rd February 2015, later as 3rd February 205

minor

Applicant's possession period stated inconsistently as over 30 years in the grounds and over 12 years in submissions

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, "Chitwah (Suing in His Capacity as the legal Administrator of Benson Chitwah Mandu) v Anyula (Enviromental and Land Originating Summons E009 of 2025) [2025] KEELC 5266 (KLR)", Case Analysis (2025). Not stated in judgment (Vihiga ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5266/eng@2025-07-10

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