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ELCPartially AllowedEnvironmental and Land Originating Summons E036 of 2025

Bargoria v Wandera & another

Environment and Land Court
24 September 2026
4,144 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Eldoret Environment and Land Court protected a woman's occupation of disputed land until trial, but made her pay costs only if she ultimately loses.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Eldoret (C.K. Yano, J) on the plaintiff's Notice of Motion dated 4 December 2025, brought in an originating summons seeking a declaration of adverse possession over parcel Uasin Gishu/Kimumu Settlement Scheme/1404 under Sections 37 and 38 of the Limitation of Actions Act. The plaintiff sought an interlocutory injunction restraining the defendants from trespassing on, interfering with or evicting her from the suit property, where she claimed to have been in open possession since 2009 and to have built rental houses. The defendants, the registered owner (1st Defendant, who purchased in 2007) and her husband (2nd Defendant), opposed, asserting the plaintiff had occupied for only about two years, that a survey revealed a mix-up of parcels (the defendants had erroneously occupied parcel 1408), and that the plaintiff was a trespasser seeking to acquire land fraudulently before the 12-year period elapsed. Applying Giella vs Cassman Brown, the court found the defendants had admitted the plaintiff's possession and photographs showed developed structures, establishing a prima facie case; whether the 12-year period had run was left for trial. Irreparable injury was found since eviction of a developer cannot be adequately compensated, and the balance of convenience favoured the plaintiff. The application was allowed: a temporary injunction issued with the OCS Kapsoya Police Station to ensure compliance, and costs of the application were ordered to abide the outcome of the suit.

Questions the Court framed

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

  1. 1.Whether a temporary injunction should be granted pending the hearing and determination of the main suit
  2. 2.Who shall bear the costs of this Application?

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

Yes - defendants admitted her possession, and photographs showed developed and upcoming structures, establishing actual possession; whether the 12-year period is met is left to trial

Reasoning

The court noted both defendants acknowledged the plaintiff's possession of the suit property. Photographs showed an older rental structure and one under construction. Combined with the admissions, the court was satisfied the plaintiff was in actual possession, a requirement of adverse possession, and thus had a prima facie case. Whether the 12-year statutory period had lapsed was expressly left for trial.

02

Whether the plaintiff would suffer irreparable injury not compensable by damages

Holding

Yes - as registered owner the 1st Defendant could take possession, evicting the plaintiff who had developed the land; alleged settlement negotiations were unproven

Reasoning

The court found no evidence of a notice to vacate but noted the certificate of official search confirmed the 1st Defendant's registration. Since the plaintiff had developed the property, eviction would cause substantial loss. The survey report acknowledged a parcel mix-up, and no proof of settlement meetings or an exchange agreement was tabled, so irreparable injury was established.

03

Balance of convenience

Holding

It tilts in favour of the plaintiff, who should be given the chance to prove her adverse possession claim at trial

Reasoning

Applying the lower-risk-of-injustice principle from Amir Suleiman vs Amboseli Resort Limited, and having found a prima facie case and irreparable harm, the court held the balance of convenience favoured maintaining the plaintiff in possession pending trial.

p. 7

Legal principles established

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  • Conditions for grant of an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • At interlocutory stage the court makes no conclusive findings of fact or law but may express a prima facie view
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, subject to the court's discretion

Court orders

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  1. 1.An order of temporary injunction restraining the respondents jointly and severally, whether by themselves, their servants, agents and or assigns, from trespassing, entering, interfering and or evicting the applicant from land parcel No. Uasin Gishu/Kimumu Settlement Scheme/1404 pending hearing and determination of the suit, with the OCS Kapsoya Police Station ensuring compliance
  2. 2.The costs of the application shall abide the outcome of the suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 37 & 38 of the Limitation of Actions Act (Cap 22); Order 40 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Costs of the application to the plaintiff

Suit yet to be heard; costs ordered to abide the outcome of the suit

p. 8

Costs

The costs of this application shall abide the outcome of the suit.

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.

An order of temporary injunction be and is hereby issued restraining the respondents jointly and severally whether by themselves, their servants, agents and or assigns from trespassing, entering, interfering and or evicting the applicant from land parcel No. Uasin Gishu/Kimumu Settlement Scheme/1404
p. 8final orders - temporary injunction granted
The costs of this application shall abide the outcome of the suit.
p. 8final orders - costs
it is clear that the Plaintiff does meet the requirement of a prima facie case with a probability of success.
prima facie case
the Court finds that the Plaintiff has established that she is likely to suffer irreparable loss and/or injury which cannot be adequately compensated by an award of damages.
irreparable injury
this court is not mandated at this point to determine whether indeed the Plaintiff has met the 12-year requirement for adverse possession. That is a matter to be determined after the trial upon hearing the evidence of the parties.
p. 6scope of interlocutory inquiry

Issues in the judgment

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minor

Plaintiff claims possession since 2009 ('over 12 years') but her own submissions state occupation ended in 2021

minor

Conflicting dates for the 2nd Defendant's site visit: 21.12.2025 in affidavit versus 25.11.2025 in submissions

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, "Bargoria v Wandera & another", Case Analysis (2026). Environmental and Land Originating Summons E036 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5771/eng@2026-09-24

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