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ELCDismissedKapsabet ELCLC No. E024 of 2023 (implied; originating summons dated 12th October 2023)

Okungi v Adingo (Sued as the Administrator of the Estate of the Late Kiptarus Arap Arusei - Deceased) (Environment and Land Case E023 of 2023) [2025] KEELC 7795 (KLR)

Environment and Land Court
12 November 2025
1,693 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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The Environment and Land Court at Kapsabet refused to order a landowner to reopen a blocked road mid-case, ruling the access dispute must wait for full trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kapsabet (Ongondo J) on a Notice of Motion dated 20th August 2025 brought by the Defendant, who is the Applicant in the application and the Respondent in the main suit (an originating summons for adverse possession over land parcel Nandi/Serem/271). The Applicant sought orders compelling the Plaintiff/Respondent to open a locked/closed road leading to his homestead on the suit land, and directing the OCS Kobujoi Police Station to provide escort and remove illegal structures on the road, plus costs. He deponed that he is the registered owner and that the Respondent and her son William Mudoga had fenced off the access road pending the main suit. The Respondent, through a 42-paragraph replying affidavit, opposed, asserting she has occupied one acre of the suit land since 2001 following purchase, has built structures thereon, and that no access road passes over her portion; the Applicant has used an alternative road for decades. She noted that orders would pre-empt trial issues, and relied on Nguruman Limited and Stek Cosmetics Limited. The Applicant filed a supplementary affidavit and submissions invoking Sections 3 and 19(a) of the Environment and Land Court Act and Section 24(a) of the Land Registration Act on ownership by registration. The Court held that the principal order related to a road on the suit land, an issue to be ascertained at trial; granting it would pre-empt the dispute and prejudice the parties, contrary to the non-derogable right to a fair trial under Articles 50(1) and 25(c). The Court noted parallel suits (Kapsabet CM E&L No. E055 of 2023 and Kapsabet ELCLC No. E024 of 2023) and an earlier ruling by Mwanyale J directing full trial. Accordingly, the application was dismissed with costs in the cause.

Questions the Court framed

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

  1. 1.Whether the orders sought in the Notice of Motion dated 20th August 2025 (opening of the locked/closed road and police escort to remove structures) are meritorious at the interlocutory stage

Key legal issues

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01

Whether the Court should order reopening of the alleged closed access road at the interlocutory stage

Holding

No; the order sought relates to the suit land and the dispute over ownership and access, which must be determined at trial

Reasoning

The suit is an originating summons for adverse possession over Nandi/Serem/271. The road issue is intertwined with the parties' competing claims over the suit land. Granting the interlocutory orders would pre-empt trial issues and prejudice the parties, contrary to the non-derogable right to a fair trial under Articles 50(1) and 25(c). The Court also noted parallel suits involving the same subject matter, reinforcing that the dispute must proceed to full trial.

p. 4
02

Whether the Applicant established entitlement to the mandatory-type orders and police escort sought

Holding

No; the Respondent disputed blocking any access and asserted the Applicant has an alternative access road, so no basis existed for the orders

Reasoning

The Respondent deponed she has occupied one acre of the suit land since 2001, that no access road passes over her portion, and that the Applicant has used an alternative access for decades. The Court found the orders would pre-empt trial issues. The application was therefore found devoid of merit and dismissed with costs in the cause.

p. 4

Legal principles established

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  • Interlocutory orders that would pre-empt the trial court's determination of disputed issues of ownership and access over suit land should not be granted
  • The right to a fair trial under Articles 50(1) and 25(c) of the Constitution is non-derogable and guides interlocutory decision-making

Court orders

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  1. 1.The application dated 20th August 2025 is dismissed with costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court Act, 2015 (Sections 3 and 19(a)) cited by the Applicant's counsel; original interlocutory jurisdiction of the Environment and Land Court

Relief refused

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Order directing the Respondent to open the locked and/or closed road leading to the Applicant's homestead on land parcel No. Nandi/Serem/271

Granting the order would pre-empt determination of issues in dispute for trial and prejudice the parties; the road issue must be ascertained at trial

p. 4

Order directing the Officer Commanding Section, Kobujoi Police Station to provide escort and remove illegal structures on the road

Same reasoning as the principal order; the matter relates to the suit land whose ownership and access are for trial

p. 4

Costs of the application to the Applicant

Application dismissed; costs awarded in the cause, not to the Applicant immediately

p. 4

Costs

Application dismissed with costs in the cause

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.

granting the said order may pre-empt the determination of the issues in dispute for trial. Further, it is bound to prejudice the parties thus, the essence of fair trial in this suit.
p. 4Interlocutory orders must not pre-empt trial
fair trial of is an unlimited right under Articles 50 (1) as read with Article 25 (c) of the Constitution of Kenya 2010
p. 4Fair trial as a non-derogable right
Accordingly, the application dated 20th August 2025 is devoid of merit. The same is hereby dismissed with costs in the cause.
p. 4Final orders and costs
the principal order sought in the application relates to a road or path on the suit land. That issue, among others, need to be ascertained at the trial of the suit without delay. So, the said order cannot be granted at this interlocutory stage of the suit for the ends of justice.
p. 4Road/access issue reserved for trial

Issues in the judgment

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minor

The judgment does not state the case number of the suit; the originating summons is dated 12th October 2023 and Kapsabet ELCLC No. E024 of 2023 is referenced as a parallel suit, though the ruling of 19th September 2024 suggests the two suits are related but separate, leaving the present suit's number unclear

minor

Contradictory description of William Mudoga: the Respondent's supporting narrative calls him the Respondent's son instructing goons, while the replying affidavit says her son purchased the land; also the Respondent's counsel is described as 'Learned Counsel for the Plaintiff/Respondent' inconsistently with 'Defendant/Applicant' for the other side

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, "Okungi v Adingo (Sued as the Administrator of the Estate of the Late Kiptarus Arap Arusei - Deceased) (Environment and Land Case E023 of 2023) [2025] KEELC 7795 (KLR)", Case Analysis (2025). Kapsabet ELCLC No. E024 of 2023 (implied; originating summons dated 12th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7795/eng@2025-11-12

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