Amakalu & 2 others v Wanyungu (Environment and Land Case E012 of 2024) [2025] KEELC 5392 (KLR)
The bottom line
#The Environment and Land Court in Kakamega confirmed landowners who defeated an adverse possession claim can still obtain an injunction against that same occupier.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this case is res judicata in view of the judgment delivered in Kakamega ELC 434 of 2017
- 2.Whether the plaintiffs have met the threshold for grant of orders of temporary injunction against the defendant in respect of the suit property
Key legal issues
#Res judicata
The suit is not res judicata; Kakamega ELC 434 of 2017 only determined the defendant's adverse possession claim and did not determine whether he may use the land without consent
The former suit tested whether the defendant had acquired the property by adverse possession, and that claim was dismissed. The current suit raises a distinct question - whether the defendant, having lost his adverse possession claim, has any right to use the property. That question neither arose nor was determined on merit in the former suit, so the suit may proceed.
Temporary injunction threshold
A temporary injunction was granted; plaintiffs demonstrated a prima facie case, irreparable injury and balance of convenience
The plaintiffs are registered proprietors whose claim to ownership succeeded in the former adverse possession suit. The defendant did not deny planting maize on the land, and his assertion of occupation since 1973 is barred by the prior judgment. The injury cannot be adequately compensated by costs, and convenience favours registered owners. Applying Giella v Cassman Brown principles, the injunction was granted.
Legal principles established
#- The elements of res judicata are conjunctive and require a final judgment on the merit by a competent court on identical issues, parties, subject matter and cause of action
- A registered proprietor's rights under the Land Registration Act are enforceable against any interferer
Court orders
#- 1.A temporary injunction be and is hereby issued against the defendant/respondent by himself, his servants and agents restraining him from dealing with or trespassing onto or interfering with the plaintiffs' use/enjoyment of land parcel LR No. Marama/Shinamwenyuli/619 pending the hearing and determination of this case
- 2.Costs of the application shall be borne by the defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act; Civil Procedure Act (section 7) and Civil Procedure Rules (Order 40 Rule 1)
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.
That question neither arose nor was it determined on merit in Kakamega ELC No. 434 of 2017.
I find and hold that this suit is not res judicata.
That a temporary injunction be and is hereby issued against the defendant/respondent by himself, his servants and agents restraining him from dealing with or trespassing onto or interfering with the plaintifis use/enjoyment of land parcel LR No. Marama/Shinamwenyuli/619 pending the hearing and determination of this case.
Costs the application shall be borne by the defendant.
Issues in the judgment
#The judgment refers to Kakamega ELC 434 of 2017 in one place but earlier to Kakamega ELC 473 of 2017, apparently for the same matter
Case number of the present suit not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amakalu & 2 others v Wanyungu (Environment and Land Case E012 of 2024) [2025] KEELC 5392 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 14th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5392/eng@2025-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.