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ELCAllowedNotice of Motion dated 2nd December, 2025 (ELC suit, Kisumu)

Odenyo v H Young & Co (EA) Ltd (Environment and Land Case E077 of 2025) [2026] KEELC 1349 (KLR)

Environment and Land Court
5 March 2026
1,676 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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A Kisumu landowner stopped a neighbour's excavation on his land by combining a title deed with an official survey report the opponent could not rebut.

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 Kisumu (E. Asati, J) on a Notice of Motion dated 2nd December, 2025 in which the Plaintiff/Applicant sought a temporary injunction restraining the Defendant from entering upon, excavating, or interfering with the suit land known as LR No Kisumu/Songhor/1044, pending hearing of the suit. The application was supported by the Applicant's Supporting and Supplementary Affidavits and opposed by a Replying Affidavit sworn by Jude Lyotzgen on behalf of the Respondent; it was determined on written submissions. The Applicant asserted registered ownership, produced a title deed, a County Surveyor's report dated 10th September, 2025, a demand letter, a valuation report and photographs, alleging trespass, conversion and irreversible environmental degradation from the excavation, harvesting and ferrying of murram for an adjacent road project. The Respondent relied on a lease dated 30th September, 2024 over 2 acres of the adjoining parcel Kisumu/Songhor/1045, for which it paid Kshs.5,600,000, contending that any encroachment was a technical boundary question for the Land Registrar under sections 18 and 19 of the Land Registration Act and incapable of determination at the interlocutory stage, and that damages would suffice. Applying the Giella v Cassman Brown principles, the court found a prima facie case established by the title deed and the unrebutted County Surveyor's report, found the alleged environmental injury incapable of adequate compensation in damages, and held the balance of convenience favoured preservation of the suit land. The court allowed the application, granted the temporary injunction and awarded costs to the Applicant.

Questions the Court framed

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

  1. 1.Whether the Applicant has established a prima facie case with a probability of success
  2. 2.Whether the Applicant would suffer irreparable injury not adequately compensable by damages
  3. 3.Where the balance of convenience lies

Key legal issues

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01

Whether the Applicant established a prima facie case

Holding

Yes - registration as proprietor plus the County Surveyor's report placed the Respondent's activities on the suit land, and the Respondent filed no survey report to rebut it

Reasoning

The Applicant annexed a title deed proving registration as proprietor of the suit land, and a County Surveyor's report dated 10th September, 2025 locating the Respondent's excavation activities on the suit land. The Respondent relied on a lease over the adjoining parcel No. 1045 but produced no surveyor's report to show its activities were confined to that parcel. The Respondent also did not deny the excavation, murram harvesting and environmental degradation alleged. This satisfied the Mrao definition of a right apparently infringed calling for rebuttal.

p. 4
02

Whether damages would be an adequate remedy

Holding

No - the excavation causes irreversible environmental degradation and destruction of the land profile and ecosystem incapable of adequate compensation in damages

Reasoning

The unchallenged material showed the Respondent's excavating, harvesting and ferrying of murram caused irreversible environmental degradation, destruction of the land profile and ecosystem, destabilisation of soil structure and long-term impairment of beneficial use of the property. Such injury to land cannot adequately be compensated by damages, satisfying the second Giella condition. The Respondent's claim that it had ceased operations did not displace the risk of continued or repeated interference pending trial.

p. 4
03

Where the balance of convenience lies

Holding

In favour of preserving the suit land pending hearing of the case

Reasoning

Weighing the parties' positions, the court found that preserving the suit land pending trial better serves justice than allowing the alleged excavation to continue. The Respondent's submissions that it had ceased operations and that there was no imminent threat did not tilt the balance its way. Preservation protects the Applicant's asserted proprietary interest while the court determines the boundary and trespass questions at full trial.

p. 4

Legal principles established

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  • A temporary injunction is granted where the applicant establishes a prima facie case with probability of success, irreparable injury not adequately compensable in damages, and, if in doubt, the balance of convenience
  • Where an applicant proves by title deed and an unrebutted surveyor's report that the respondent's excavation activities are being carried out on the suit land, a prima facie case is established

Court orders

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  1. 1.Temporary injunction restraining the Defendant, its agents, servants and employees from entering upon or carrying out any excavation on the suit land known as LR No Kisumu/Songhor/1044, dealing with the suit property, remaining on it, or threatening, harassing or intimidating the Plaintiff, pending hearing of the suit
  2. 2.Costs of the application to the Applicant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3, 3A of the Civil Procedure Act; sections 3, 4 & 9 of the Environment and Land Court Act; Order 40 rules 1, 2 & 3 and Order 51 rule 1 Civil Procedure Rules; Articles 42, 69 and 70 of the Constitution of Kenya, 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.

I find that the Applicant has prima facie demonstrated that the suit property is in danger of being wasted and/or damaged and ought to be protected pending hearing of the case. I allow the application. Costs to the Applicant.
p. 4Final orders - injunction granted and costs
No Surveyor's Report was placed before court by the Respondent to discount the County Surveyor's Report and demonstrate that the activities complained of are being carried out within the confines of parcel No. Kisumu/Songhor/1045 as claimed by the Respondent.
p. 4Unrebutted survey evidence and prima facie case
a prima facie case in a civil application includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed
p. 2Definition of prima facie case (Mrao Ltd v First American Bank)
I further find that the balance of convenience is in favour of preserving the suit land pending hearing of the case.
p. 4Balance of convenience

Issues in the judgment

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material

Inconsistent suit parcel numbers: the application describes the suit land as Kisumu/Songhor/1044, but the Applicant's pleadings describe it as Kisumu/Songhor/1084 measuring 6.8 Ha

minor

The ruling refers to the Applicant as 'the appellant' at paragraph 6 although the matter is a first-instance application

minor

The record states the application was opposed by a Replying Affidavit but the parties are inconsistently labelled 'Respondent' in the affidavit heading while the motion seeks orders against 'the Defendant'

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, "Odenyo v H Young & Co (EA) Ltd (Environment and Land Case E077 of 2025) [2026] KEELC 1349 (KLR)", Case Analysis (2026). Notice of Motion dated 2nd December, 2025 (ELC suit, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1349/eng@2026-03-05

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