Okoyo v Guti & 8 others (Environment and Land Case 004 of 2022) [2025] KEELC 6751 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped gold mining on disputed ancestral land and confirmed that suing one dead defendant doesn't kill an entire case.
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 application and suit should be dismissed on account of the applicant having sued the 9th Respondent who is said to have died long before the suit was instituted
- 2.If the suit is not dismissed, whether the application is merited
- 3.Who to bear the costs of the application
Key legal issues
#Whether suing a deceased defendant renders the whole suit incompetent
The suit is competent against the living respondents; the alleged death of the 9th respondent was unproved, and in any event only the claim against the deceased would be a nullity or abate, not the whole suit.
The 1st Respondent alleged the 9th respondent died before the suit but annexed no proof, so the fact was unproved under Section 107 of the Evidence Act. Order 24 Rule 4 deals with a defendant dying during a suit, not a suit filed against an already-deceased person. Order 1 Rule 9 prevents defeat of a suit by misjoinder. Where a multi-defendant suit includes a dead person, only that defendant's name falls away; the living must face the claims against them.
Whether the applicant established a prima facie case for an interlocutory injunction
Yes - the applicant's photographs together with the Area Chief's independent evidence of three open casts established a prima facie case of ongoing mining on the suit parcels.
Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the applicant needed only to show an arguable right apparently infringed. The Chief, summoned as a neutral witness, found three deep open casts with evidence of active extraction. The court rejected the respondents' explanation that the pits were pit latrines as implausible, finding the evidence of mining credible and unrebutted.
Irreparable injury and balance of convenience
Gold mining would permanently change the character of ancestral land, and damages would not adequately compensate; the balance of convenience tilts in favour of granting the injunction.
The land is ancestral land with sentimental value to the applicant, and continued mining pending determination of ownership would degrade and permanently alter it. Relying on the Halsbury principles adopted in re estate of Magdalena Kabon Sawe, an injunction may issue even where damages might compensate if the act is likely to destroy the subject matter. Failing to restrain mining would prejudice the applicant more than an injunction would prejudice the respondents.
Effect of the 1st Respondent's failure to annex written authority to swear on behalf of co-respondents
Not fatal, but the depositions purporting to be on behalf of the 3rd, 4th, 5th and 7th respondents are to be expunged or treated as inadmissible hearsay.
The 1st Respondent deponed he had express authority to swear on behalf of the 3rd, 4th, 5th and 7th respondents but annexed no written authority. Following Brownstone Agencies Limited, the omission is not fatal, but the court would take those portions of the replying affidavit as the 1st Respondent's only, striking out or disregarding purported representations for unauthorized parties.
Legal principles established
#- A suit filed against several defendants, one of whom was dead when the proceedings were instituted, is not a nullity; only the name of the dead defendant should be struck out and the case proceeds against the living defendants.
- No suit shall be defeated by reason of misjoinder or non-joinder of parties.
- An injunction may issue even where damages could compensate, if the respondent's acts are likely to destroy the subject matter of the suit.
Court orders
#- 1.Injunction granted in terms of prayer 3 of the application restraining the respondents, their relatives, agents or lessees from carrying out mining activities and/or wasting the suit land
- 2.Injunction to last for twelve (12) months from the date of the ruling, subject to extension upon application for good reason
- 3.Matter to be mentioned on 6th November 2025 for confirmation of filing of a formal application for joining other parties
- 4.Costs of the application to be borne by the Respondents
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, 2010 (interim injunctive relief in pending land suit)
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.
I think thatsome parties underestimate the intelligence of this Court, and courts in general! They think thatjudges and judicial oficers do not think deeply. For them to dig open casts for mining and label them as toilets just to convince the court to agree to their side of the story is to underrate the intellect of the Judge too much.
In conclusion, I find and hold thatthe application succeeds. I grant an injunction in terms of prayer 3 of the application. The injunction is to last for twelve (12) months from today and is subject for extension if the parties have good reason for the application for extension.
The costs of this application will be borne by the Respondents.
if a suit has been filed against a number of persons one of whom happens to be dead when the proceedings were instituted, then the proceedings are not null and void but the court has to strike out the name of the party who has been wrongly joined.
Issues in the judgment
#The judgment refers to the dispute land variously as parcels 1961, 2054, 3508-3515 in the prayer, parcel 658 as the original parcel, and parcels 2045 and 1691 in the respondents' evidence, without reconciling the discrepancies.
The citation for Nguruman Limited v Jan Bonde Nielsen is given as [2014] eKLR only, without the full neutral citation.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Okoyo v Guti & 8 others (Environment and Land Case 004 of 2022) [2025] KEELC 6751 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6751/eng@2025-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.