Odhiambo v Awino (Environment and Land Case 051 of 2025) [2026] KEELC 3223 (KLR)
The bottom line
#A Kenyan landowner who occupied disputed land since 2003 won a court order stopping its owner from evicting her or selling it until trial.
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 suit is res judicata
- 2.Whether the Applicant has met the conditions for grant of a temporary injunction
- 3.Who should bear the cost of the application
Key legal issues
#Whether the suit is barred by res judicata (Section 7, Civil Procedure Act) given the prior Migori ELC No. 34 of 2017 litigation
The suit is not res judicata because the Applicant was not a party to the earlier suit and the subject matters differ - the earlier suit concerned cancellation and rectification of the register, while this suit seeks title by adverse possession.
The court compared the parties and subject matter of the two suits. In Migori ELC No. 34 of 2017 the parties were the Respondent, the Land Registrar and John Nyambok Awino; the Applicant here was not a party. The earlier suit sought cancellation and rectification of the land register, whereas the present claim is for acquisition of title by adverse possession. The subjects are therefore different, and the res judicata objection fails. Whether the 12-year occupation is made out is a matter for trial.
Whether the Applicant established a prima facie case for a temporary injunction
Yes. The Applicant established on a balance of probability that she is in occupation of the suit property registered in the Respondent's name, supported by photographs, the demand notice and the Respondent's own trespass allegations.
The Applicant annexed photographs of rental units and structures on the land. Although the Respondent denied her occupation in his replying affidavit, he issued a written demand notice requiring her to vacate and in submissions called her a trespasser. These contradictions cast doubt on his credibility and corroborate the Applicant's occupation. The court found a prima facie case with a probability of success established.
Whether the Applicant would suffer irreparable harm not compensable by damages
Yes. The structures and rental units erected on the land, and the tenancies they generate, would be destroyed upon eviction, a loss not compensable in damages.
The Applicant had invested in structures on the land. If evicted, the Respondent might destroy the structures, and tenants could not be restored to their premises in time. The structures now form part of the land and require protection by injunction pending trial.
Balance of convenience
The balance of convenience tilts towards granting the injunction, given the Applicant's occupation and economic activities on the land.
Although the court was not in doubt on the first two limbs, it found that the Applicant's occupation and ongoing economic activities on the land tipped the balance of convenience in her favour.
Legal principles established
#- A suit cannot be res judicata where the parties and the subject matter differ from the former suit
- The conditions for an interlocutory injunction must be surmounted sequentially, and if a prima facie case is not established the other limbs need not be considered
- A respondent who issues a demand notice to vacate cannot credibly deny the claimant's occupation of the land
Court orders
#- 1.A temporary injunction restraining the Defendant/Respondent by himself, his agents or servants from entering upon, selling, evicting, trespassing onto and/or otherwise interfering or dealing with LR No. Kanyada/K/Kanyango/5252 measuring 0.06 Ha pending the hearing and determination of the suit
- 2.The Respondent to pay the costs of the application
- 3.Mention for compliance with Order 11 of the Civil Procedure Rules by filing of the trial bundle in thirty days
- 4.Mention on 7th July 2026
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 13 and 19 of the Environment and Land Act; Article 159(2)(d) of the Constitution, 2010
Relief refused
#Referral of the Respondent's alleged false swearing to the Director of Criminal Investigations for investigation and charging
The court expressed the view and called for investigation but made no formal order to that effect in the final orders
Costs
Costs follow the event; the Respondent, having lost the application, shall pay the costs.
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.
For these reasons, the instant suit cannot be said to be res judicata MIGORI ELC CASE NO.34 of 2017. The Applicant is not a busy body but a bona fide claimant in relation to occupation and use of the suit property.
It is my finding that the Applicant has established, on a balance of probability that she is in occupation of the suit property, which is registered in the name of the Respondent and thereby established a prima facie case.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent.
The upshot of the foregoing is that the Applicant has established the conditions for grant of temporary injunction and the same is hereby granted as prayed in her application.
On costs, they follow event: the Respondent has lost the application. He shall pay them.
Issues in the judgment
#The judgment does not state the parties' names in full for the Respondent, nor the suit case number; the judge also inconsistently refers to the pronoun of the Applicant (she/he) and misnames the case as a 'RULING' while the court sits as first-instance injunction court.
The judgment refers to the 'Respondent's submissions' arguing that 'the Respondent's suit is res judicata', an apparent typographical confusion between parties.
The judgment refers to an unspecified 'ground report' requirement said to be 'required by law'; the court could not identify such a requirement.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Awino (Environment and Land Case 051 of 2025) [2026] KEELC 3223 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 23rd August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3223/eng@2026-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.