Okello v Odhiambo & 2 others (Environment and Land Case E028 of 2025) [2026] KEELC 1118 (KLR)
The bottom line
#A land buyer lost his bid to stop his alleged eviction because he had no written, signed land sale agreement to show the court.
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 applicant's application has met the threshold for grant of orders of injunction as prayed
- 2.Who should bear the costs of the application
- 3.The value of the suit property in relation to the pecuniary jurisdiction of the court
Key legal issues
#Whether the applicant established a prima facie case for an interlocutory injunction
No prima facie case was established because no written agreement over the sale of land was annexed, as required by section 3(3) of the Law of Contract Act, and possession could not be verified from photographs alone
The court noted the applicant did not annex the land sale agreement. Section 3(3) of the Law of Contract Act requires contracts over land to be in writing, signed and attested. Neither the auction nor constructive trust exceptions were pleaded. Without the agreement the court could not determine whether the applicant was put into possession; competing averments on occupation left the applicant's claim as hearsay, and the court inferred the registered owner was in possession.
Whether the remaining Giella conditions (irreparable harm and balance of convenience) required determination
No; the conditions are sequential and, once the prima facie case failed, the court did not consider them
Relying on Nguruman Limited v Jan Bonde Nielsen, the court held the three Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially. Leap-frogging is not permitted; where no prima facie case exists, irreparable injury and balance of convenience need not be considered.
Pecuniary jurisdiction relative to the value of the suit property
Although the court had original jurisdiction, the value of the suit (about Kshs. 1,700,000) was below its pecuniary jurisdiction, so the court transferred the suit to the Homabay Chief Magistrate's Court
The 2nd respondent raised the issue of pecuniary jurisdiction, contending the suit land's value did not exceed Kshs. 3,000,000. The court computed the transaction value as Kshs. 1,051,000 paid plus a Kshs. 650,000 balance, and exercised its discretion to transfer the suit to the Homabay Chief Magistrate's Court for hearing and determination.
Legal principles established
#- A contract for the disposition of an interest in land must be in writing, signed by all parties and attested by a witness, under section 3(3) of the Law of Contract Act
- If a prima facie case is not established, irreparable injury and balance of convenience need no consideration; the Giella conditions are sequential hurdles
- The burden of proof lies on the person who alleges facts and expects the court to rely on them
Court orders
#- 1.Prayers 3-6 of the applicant's application (interlocutory injunction, deposit of Kshs. 1,051,000/= into court, deposit of the original title deed, and costs) are declined
- 2.The respondents shall have the costs of the application
- 3.The suit is transferred to the Homabay Chief Magistrate's Court for hearing and determination
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over the land dispute; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, and Orders 40 and 51 of the Civil Procedure Rules, 2010
Relief refused
#Interlocutory injunction restraining the defendants from evicting, alienating, transferring or interfering with the applicant's possession of Gem/Koyolo/544
The applicant did not annex the written agreement required by section 3(3) of the Law of Contract Act and failed to prove a prima facie case
Order that the 1st Defendant deposit Kshs. 1,051,000/= into court pending hearing and determination of the suit
Falls with the failure of the prima facie case; the court declined to consider the remaining Giella conditions
Order that the 2nd Defendant deposit the original title deed for Gem/Koyolo/544 in court or joint custody of counsel
Alternative prayer dependent on the same failed injunction test
Costs
The respondents will have the costs of the application - 'it is trite that costs follow event. The respondents will have the costs of the application.'
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.
The upshot of the foregoing is that, prayers 3-6 of the applicant’s application are hereby declined.
On the issue of costs, it is trite that costs follow event. The respondents will have the costs of the application.
This court therefore exercises its discretion to transfer the suit to the Homabay Chief Magistrate’s Court for hearing and determination.
The standard of proving a prima facie case in higher that the civil standard of proof on a balance of probabilities and below the criminal law threshold of proof beyond reasonable doubt.
Section 3(3) of the law of contract Act mandates that all contracts over sale/purchase of land must be in writing.
Issues in the judgment
#Contradiction on possession: the applicant deponed that he took possession and developed the land, while the court later states developments cannot be seen on the land and infers the owner is in possession
The value of the suit property is stated with inconsistent figures
The 2nd respondent indicated he had annexed a valuation report as annexure EOJ-9 but the report was not annexed to the affidavit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okello v Odhiambo & 2 others (Environment and Land Case E028 of 2025) [2026] KEELC 1118 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1118/eng@2026-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.