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ELCAllowedNotice of Motion dated 29th June 2025

Catholoc Diocese of Homabay Registered Trustees v Aganyo (Environment and Land Case E042 of 2025) [2025] KEELC 8567 (KLR)

Environment and Land Court
8 December 2025
NYNYAGAKA
3,871 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court stopped a landowner from interfering with a church's 50-year occupation of disputed land until the adverse possession case is decided.

What this practically means

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Executive summary

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The plaintiff/applicant, the Catholic Diocese of Homabay, brought a Notice of Motion dated 29th June 2025 seeking interim injunctive relief restraining the respondent from interfering with its peaceful possession, occupation and use of land parcel Central Kasipul/Kamuma/934, and for maintenance of status quo ante, pending hearing of the main suit founded on adverse possession. The applicant asserted open, continuous and uninterrupted occupation since 1974, having purchased the land from three individuals including the respondent's late father, and contended that time ran from registration of the land in the respondent's name on 14th December 2007, maturing on 14th December 2019. The respondent, the registered proprietor since 2007, opposed the application, arguing the applicant was a trespasser, that the Giella v Cassman Brown conditions were unmet, and that the application was an abuse of process. He also sought the expungement of the applicant's further affidavit. The court took testimony from the OCS, Oyugis Police Station, who confirmed the church's occupation, ongoing wrangles, and destruction of a structure on the land. Applying the Giella test as elaborated in Mrao and Nguruman, the court found the applicant had established a prima facie case with a probability of success, that irreparable harm would result if the injunction were withheld, and that the balance of convenience favoured the applicant. The court granted prayer 3 (temporary injunction) and prayer 4 (preservation of status quo), awarded costs of the application to the respondent, directed filing of trial bundles within thirty days, and set the matter down for mention on 21st January 2026.

Questions the Court framed

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

  1. 1.Whether the application is merited
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Whether the plaintiff/applicant established a prima facie case with a probability of success for purposes of a temporary injunction in an adverse possession claim

Holding

Yes - the applicant provided evidence of occupation including use of the land as a school playground, corroborated by the OCS testimony

Reasoning

The court found that despite the respondent's contention, the applicant provided evidence sufficient to the court's satisfaction that it is in occupation of the suit land, using it as a playground for the school it established. The OCS of Oyugis Police Station confirmed the applicant's occupation and the wrangles and destruction of property. What remains for trial is the duration and nature of the occupation.

p. 7
02

Whether the other limbs of the Giella v Cassman Brown test needed consideration

Holding

Having found a prima facie case, the court found irreparable harm would result without the injunction and balance of convenience tilted in the plaintiff's favour

Reasoning

The court held it need not belabour the other limbs once prima facie case was established. It found irreparable harm in that cultivating the school playground would endanger children and could lead the Ministry of Education to close the school, affecting the best interest of the child. Balance of convenience also favoured the plaintiff.

p. 7

Legal principles established

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  • If a prima facie case is not established, irreparable injury and balance of convenience need no consideration
  • The applicant need not establish title; a fair and bona fide question as to the existence of the right suffices on a balance of probabilities

Court orders

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  1. 1.An injunction issued against the Defendant in terms of prayer 3, forbidding and prohibiting the respondent, his agents, assigns and representatives from threatening and interfering with the plaintiff/applicant's peaceful possession, occupation and use of land parcel Central Kasipul/Kamuma/934 until the main suit is heard and determined, but in any event within twelve months of the order
  2. 2.Prayer 4 allowed for purposes of preserving the suit property (status quo to be maintained) pending hearing and determination of the main suit
  3. 3.Costs of the application borne by the Respondent
  4. 4.Parties directed to file their trial bundles within thirty (30) days
  5. 5.Matter to be mentioned on 21st January 2026 for compliance

The bench

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

NY
majority

Wrote the judgment

Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules, 2010

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.

Accordingly, prayer 3 of the application is hereby granted. To be specific, an injunction hereby issues against the Defendant in terms of prayer 3 of the application
p. 8disposition - temporary injunction granted
Prayer 4 is equally allowed for purposes of preserving the suit property pending the hearing and determination of the main suit.
p. 8disposition - status quo preservation
In terms of Section 27 of the Civil Procedure Act, costs follow the event. Thus, the costs of the application shall be borne by the Respondent
p. 8costs order
What needs to ultimately go for trial is how long and what the nature of the occupation by the Plaintifi has been.
p. 7issue for trial in adverse possession claim

Issues in the judgment

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minor

The applicant's name and the respondent's name are not stated in full in the judgment; parties are referred to only by role

minor

Judgment refers to a previous originating summons filed at Oyugis Law Court which was withdrawn, indicating prior proceedings not detailed

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, "Catholoc Diocese of Homabay Registered Trustees v Aganyo (Environment and Land Case E042 of 2025) [2025] KEELC 8567 (KLR)", Case Analysis (2025). Notice of Motion dated 29th June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8567/eng@2025-12-08

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