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ELCDismissedNot stated in the judgment

Okoth v Aoko & 3 others (Land Case E065 of 2025) [2026] KEELC 1630 (KLR)

Environment and Land Court
20 January 2026
EAE. Asati
1,474 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kisumu land court refused to stop burial and construction on contested Nyalenda land because the title holder couldn't show the occupants arrived recently.

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 the Plaintiff/Applicant Geofirey O. Okoth's Notice of Motion dated 29th October 2025, brought under Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and sections 24(a), 25(1) and 26 of the Land Registration Act. The outstanding prayers sought a temporary injunction restraining the Defendants, their relatives, tenants and agents from burying any dead person, excavating, digging or erecting structures on LR no. Kisumu/Nyalenda 'B'/2033, and costs in the cause. The Applicant, relying on his title deed and a 2021 survey, alleged encroachment and an intended burial of a deceased relative on the suit land. The Respondents opposed the application with Replying Affidavits asserting long occupation - since 2005, 1999 and 2002 respectively - claiming homes on the land, burial of kin, and that the Plaintiff's title to the occupied portions was extinguished; the 4th Respondent denied occupying the suit land. The 1st, 3rd and 4th Respondents also filed preliminary objections asserting that the suit is statute-barred under section 7 of the Limitation of Actions Act, that the court lacks jurisdiction under Article 162(2) of the Constitution, that the Plaintiff lacks locus standi, and that the application was procedurally defective. Applying Giella v Cassman Brown, Mrao Ltd v First American Bank and Mukisa Biscuit, the court held that the Applicant failed to establish a prima facie case, having not disclosed when the Respondents entered the land to rebut the extinguishment claim; that no irreparable injury was shown; and that the balance of convenience favours the Respondents, who reside on the land, since an injunction would amount to eviction before trial. The preliminary objections were dismissed as requiring interrogation of facts. The court dismissed both the preliminary objections and the application, ordering each party to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the Plaintiff/Applicant has demonstrated grounds for the grant of an order of temporary injunction (prima facie case, irreparable injury, balance of convenience)
  2. 2.Whether the preliminary objections by the 1st, 3rd and 4th Respondents (limitation, jurisdiction, locus standi, defectiveness of the application) should be upheld
  3. 3.Who bears the costs of the application and preliminary objections

Key legal issues

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01

Whether the Applicant established a prima facie case for a temporary injunction

Holding

No prima facie case was demonstrated; the Applicant did not disclose when the Respondents entered the suit land to discount the claim that his title may have been extinguished by limitation

Reasoning

The Applicant relied on a title deed and a 2021 survey showing encroachment, but did not state when the Respondents entered the land, which was necessary to rebut the Respondents' claims of occupation since 1999, 2002 and 2005 and the assertion that the Plaintiff's title to the occupied portions was extinguished. Without that, the Applicant could not show that his right had apparently been infringed as required by Mrao Ltd.

p. 3
02

Irreparable injury and balance of convenience

Holding

No irreparable injury was demonstrated and the balance of convenience tilts in favour of the Respondents who have homes on the suit land

Reasoning

The court found the Applicant did not show he would suffer injury not compensable in damages. Granting an injunction against persons residing on and claiming homes on the land would effectively evict them before trial, so the balance of convenience favours the Respondents. The injunction was therefore refused on the second and third Giella limbs as well.

p. 3
03

Whether the preliminary objections on limitation, jurisdiction, locus standi and defectiveness of the application should be upheld

Holding

Both preliminary objections were dismissed because they require interrogation of facts and cannot be determined as pure points of law

Reasoning

Applying Mukisa Biscuit, a preliminary objection must be a pure point of law arguable on assumed facts. Here, determining limitation and title extinguishment requires examining the documents and facts filed by the parties. Since facts must be ascertained, the objections could not succeed at the preliminary stage, and it is desirable that suits, unless hopelessly defective, be heard on merit.

p. 4

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with a probability of success, show irreparable injury not adequately compensable in damages, and failing which the court decides on the balance of convenience
  • A prima facie case in a civil application is a genuine and arguable case showing an apparent infringement of a right calling for an explanation or rebuttal
  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded are correct; it cannot succeed if any fact must be ascertained or if the court's discretion is sought
  • Where a preliminary objection requires interrogation of facts, it should be rejected and suits, unless hopelessly defective, heard on merit

Court orders

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  1. 1.The 1st and 3rd Respondents' preliminary objection dated 20th February 2026 is dismissed
  2. 2.The 4th Respondent's preliminary objection is dismissed
  3. 3.The Plaintiff/Applicant's Notice of Motion application dated 29th October 2025 is dismissed
  4. 4.Each party to bear its own costs of the application and the preliminary objections

The bench

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

EA
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(d) of the Constitution read with the Environment and Land Court Act (court dealing with land at Kisumu/Nyalenda 'B'/2033); jurisdiction under section 7 of the Limitation of Actions Act contested by the 4th Respondent's preliminary objection

Relief refused

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Temporary injunction restraining the Defendants from burying any dead person, excavating, digging, undertaking works or erecting structures on LR no. Kisumu/Nyalenda 'B'/2033

The Applicant failed to establish a prima facie case, did not demonstrate irreparable injury, and the balance of convenience favours the Respondents who have homes on the land

p. 3

Costs of the application in the cause

The court instead ordered each party to bear its own costs

p. 4

Costs

Each party to bear its own costs of the application and the preliminary objections

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.

Both preliminary objections and the application are hereby dismissed. Each party to bear its own costs of the application and the preliminary objections.
p. 4Final orders/disposition
I find that the Applicant has not demonstrated grounds for the grant of an order of temporary injunction.
p. 3Failure to meet Giella conditions
The balance of convenience tilts in favour of the respondents who claim to have their homes on the suit land, for issuing an order barring them from entering the suit land is equivalent to evicting them before the suit is heard.
p. 3Balance of convenience
It is desirable that suits, unless hopelessly defective, be heard on merit.
p. 4Preliminary objections rejected - hear on merit

Issues in the judgment

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minor

The 1st Respondent's Replying Affidavit is stated as sworn on 20th February, 2026, while the 3rd Respondent's Replying Affidavit on the same date is given as 20th February, 2025, and the written submissions dated 20th February, 2025 - the dates are internally inconsistent given the application is dated 29th October 2025 and the ruling delivered January 2026

minor

The judgment refers to 'the Plaintifi's title' and Respondents' affidavits even though the application is by 'the Applicant' - the pleading styles (Plaintiff vs Applicant, Defendants vs Respondents) are used interchangeably

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, "Okoth v Aoko & 3 others (Land Case E065 of 2025) [2026] KEELC 1630 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1630/eng@2026-01-20

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