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ELCDismissedELC Case (Notice of Motion dated 19th September 2025), Homa Bay ELC· [2025] KEELC 8556 (KLR)

Adongo v Ogola (Sued as the legal representative of the Estate of the Olero Akumu) (Enviromental and Land Originating Summons E041 of 2025) [2025] KEELC 8556 (KLR)

Environment and Land Court
3 December 2025
NYNYAGAKA
1,999 words in judgment
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The bottom line

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A Kenyan court refused to stop land dealings because the claimant proved neither ownership nor actual occupation of the disputed parcel.

What this practically means

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Executive summary

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The plaintiff/applicant moved the court by Notice of Motion dated 19th September 2025 seeking a temporary injunction restraining the defendant from entering, cultivating, surveying, transferring, alienating or building on Land Reference Number South Sakwa/Waware/233 (approx. 1.3 Ha), and directing the OCS Sony Police Station and area administration to ensure compliance, pending hearing of the main suit. The claim was anchored on adverse possession: the applicant deponed that his grandfather, Owino Olero, occupied the land from 1963 until his death in 2007, whereupon the applicant took over peaceful possession, planting trees and crops, while the registered owner, Olero Akumu, never occupied the land. The defendant/respondent opposed, denying the applicant's occupation, asserting that the applicant had encroached and destroyed the boundary, noting he had not been appointed legal representative of the estate, and pointing to a prior suit over the same subject matter dismissed by the court. The court framed two issues: whether the application was merited and who should bear costs. Applying Order 40 Rule 1 CPR and the Giella v Cassman Brown test as clarified in Nguruman and Mrao, the court suo motu summoned the area Assistant Chief, who testified that the defendant, not the applicant, is in occupation, planting crops including cassava. Finding the applicant neither registered owner nor in occupation, the court held he had established no prima facie case and, per Nguruman, declined to consider the remaining limbs. Prayers 3 and 4 were disallowed with costs to the plaintiff/applicant; the suit proceeds to Order 11 directions on 10th February 2026, with trial bundles to be filed and exchanged within thirty days.

Key legal issues

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01

Whether the applicant established a prima facie case for a temporary injunction founded on adverse possession

Holding

No - the applicant proved neither ownership nor occupation of the suit property

Reasoning

The court invoked Order 40 Rule 1 CPR and the Giella v Cassman Brown test as elaborated in Nguruman and Mrao. To resolve conflicting accounts of occupation, the court suo motu called the area Assistant Chief, who testified on oath that the defendant, not the plaintiff, is in occupation and has been planting crops including cassava. On that evidence, the applicant, claiming adverse possession, failed to show possession of the land for the requisite period, hence no prima facie case.

p. 4
02

Whether the remaining Giella limbs (irreparable loss, balance of convenience) should be considered

Holding

No - once the prima facie case fails, the sequential test ends there

Reasoning

Relying on the Court of Appeal's decision in Nguruman Limited v Jan Nielsen, the court held that the limbs of the Giella test are sequential; where a prima facie case is not established, the court does not evaluate irreparable injury or balance of convenience. The applicant having failed at the first hurdle, the inquiry could not proceed further and the application fell to be dismissed with costs to the applicant.

p. 4

Legal principles established

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  • Where no prima facie case is established, the court need not consider irreparable injury and balance of convenience
  • An applicant for interlocutory relief who is neither registered owner nor in occupation has not established a prima facie case

Court orders

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  1. 1.Prayers 3 and 4 of the Notice of Motion dated 19th September 2025 are disallowed
  2. 2.The plaintiff/applicant shall bear the costs of the application
  3. 3.Suit to be mentioned for directions under Order 11 of the CPR on 10th February 2026
  4. 4.Parties to file and exchange trial bundles within thirty (30) days of the ruling

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Civil Procedure Rules, 2010Order 11

Cases cited (4)

  • Giella v Cassman Brown and Co. Ltd
    (1973) EA 358
  • Nguruman Limited v Jan Nielsen & 2 others
    [2014] KECA 606 (KLR)
  • Mrao Limited v First American Bank of Kenya Limited & 2 others
    (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR)
  • Pius Kipchirchir Kogo vs. Frank Kimeli Tenai
    (2018) eKLR
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules, 2010

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, "Adongo v Ogola (Sued as the legal representative of the Estate of the Olero Akumu) (Enviromental and Land Originating Summons E041 of 2025) [2025] KEELC 8556 (KLR)", Case Analysis (2025). ELC Case (Notice of Motion dated 19th September 2025), Homa Bay ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8556/eng@2025-12-03

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