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ELCAllowedEnvironment and Land Case E003 of 2026

Chomber v Kosgey & 3 others

Environment and Land Court
1 October 2026
3,432 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Eldoret Environment and Land Court stopped defendants from carving a road through disputed land until the full case is heard.

What this practically means

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Executive summary

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The plaintiff, an administrator and beneficial owner of land parcel Tembeleo/Illula Block 1 (Muinyengwet)/71, moved the Environment and Land Court at Eldoret by Notice of Motion dated 1 April 2026 seeking a temporary injunction restraining the defendants from entering, ploughing, damaging boundaries or opening an access road on the suit land pending hearing of the main suit. He alleged the 3rd and 4th respondents had irregularly arrogated powers to open an access road for the convenience of the 1st and 2nd respondents, amounting to trespass and unlawful boundary alteration. The 1st and 2nd respondents opposed, asserting the road is a public access road running through parcels 43, 42 and 71, that a survey found the existing road to be 3m wide against a mapped 9m, and that each of parcels 71 and 42 should cede 3m. The 3rd and 4th respondents filed no response and were deemed not opposed. Applying the Giella principles as restated in Nguruman, and applying the Mrao definition of a prima facie case, CK Yano J found the applicant had satisfied all three sequential conditions: ownership was undisputed and the threatened carving out of 3m would alter the substratum of the suit; the physical alteration was irreparable and an existing 3m road meant access was not blocked; and the balance of convenience favoured the applicant. The application was allowed, a temporary injunction issued pending determination of the main suit, with costs in the cause.

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 sufficiently met the requirements for the grant of an order of temporary injunction

Key legal issues

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01

Whether the applicant established a prima facie case

Holding

Yes - ownership is undisputed and the threatened carving out of 3m would alter the substratum of the suit.

Reasoning

Ownership of the suit land is not in dispute. The court found an imminent risk of the 4th respondent carving out 3m, damaging the fence and altering boundaries, which would alter the substratum of the suit. Applying the Mrao definition, the applicant demonstrated an apparent infringement of a right calling for rebuttal, without delving into the merits at the interlocutory stage.

02

Whether the applicant demonstrated irreparable loss not compensable by damages

Holding

Yes - the physical alteration of the land and boundaries is not reversible, and an existing 3m road means access is not blocked.

Reasoning

The court accepted that carving out the 3m, ploughing and altering boundaries would cause permanent physical alteration not compensable in damages. It also rejected the respondents' claim that the injunction would block access, since an access road already exists on the ground measuring 3m.

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Where the balance of convenience lies

Holding

In favour of the applicant.

Reasoning

Balancing the hardship to each side, the court found the balance of convenience favoured the applicant, since granting the injunction preserves the status quo pending substantive determination, whereas implementing the survey recommendation before trial would pre-empt the court's determination.

Legal principles established

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  • The three Giella conditions for a temporary injunction are sequential hurdles that must each be surmounted.
  • An interlocutory injunction serves to preserve the subject matter of the suit by maintaining the status quo.

Court orders

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  1. 1.The application dated 01.04.2026 be and is hereby allowed
  2. 2.An order of temporary injunction restraining the Defendants/Respondents from entering, remaining upon, ploughing, damaging existing boundaries, opening and/or creating an access road and/or dealing with land parcel Tembeleo/Illula Block 1 (Muinyengwet)/71 pending the hearing and determination of the main suit
  3. 3.Costs of the present Application be in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 13(7)(a) of the Environment and Land Court Act, 2015; Order 40(1)(2) of the Civil Procedure Rules

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.

The application dated 01.04.2026 be and is hereby allowed.
p. 7disposition - allowance of the application
An order of temporary injunction be and is hereby issued restraining the Defendants/ Respondents either by themselves, their agents, servants and/or anybody claiming under them from entering, remaining upon, ploughing, damaging existing boundaries, opening and/or creating an access road
p. 7temporary injunction issued pending hearing of main suit
Costs of the present Application be in the cause.
p. 7costs
The totality of the foregoing is that the applicant has sufficiently proved all the three elements and has therefore met the required threshold for the grant of a temporary injunction.
p. 7satisfaction of the Giella/Nguruman test

Issues in the judgment

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minor

Numbered issue list appears duplicated with slightly different wording in the judgment text.

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, "Chomber v Kosgey & 3 others", Case Analysis (2026). Environment and Land Case E003 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6116/eng@2026-10-01

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