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ELCDismissedELC Land Petition No. E002 of 2026

Benard Nyarangi Guto v County Government of Kisii & 3 others

Environment and Land Court of Kenya
1 October 2026
2,839 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisii refused to stop construction of Nyambera Modern Market, finding the land buyer's loss could be paid in money.

What this practically means

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Executive summary

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This is a ruling by A. Omollo, J of the Environment and Land Court at Kisii on a Notice of Motion dated 6th March 2026 by Benard Nyarangi Guto, who purchased L.R. No. KISII MUNICIPALITY/BLOCK 111/358 at a public auction from Bank of Africa in July 2022 for Kshs 10,050,000. He sought temporary injunction and conservatory orders restraining the County Government of Kisii and associated respondents from establishing Block 01 of the Nyambera Modern Market on the property, alleging infringement of his Article 40 rights. The 1st and 2nd Respondents countered that the land was reserved as recreational/public open space under the 1971 Kisii Municipality Physical Development Plan, challenged the regularity of the original allotment, and filed their own application to set aside the interim injunction, citing public interest and financial loss to taxpayers. The Petitioner invoked res judicata and issue estoppel arising from Kisii Civil Case No. 166 of 2011. Applying Giella v Cassman Brown as re-affirmed in Nguruman Limited v Nielsen, the Court found a prima facie case with probability of success but held the Petitioner failed to demonstrate irreparable harm, since the loss was ascertainable and compensable in damages, the Respondents being government entities capable of paying. The conservatory orders were refused, the interim orders discharged, substantive prayers left for the main petition, and each party ordered to bear its own costs of the application.

Questions the Court framed

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

  1. 1.Whether or not the Petitioner has made a case for the grant of the temporary conservatory and injunctive orders sought.
  2. 2.Who is to bear the costs of the Petitioner's and 1st and 2nd Respondents' applications.

Key legal issues

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01

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

Holding

Yes - the memorandum of sale showing the Petitioner as highest bidder at Kshs 10,050,000 established an ascertainable interest, and the Respondents' actions put that right at risk of infringement.

Reasoning

The Court found the Petitioner acquired an interest through a public auction purchase, evidenced by a memorandum of sale dated 18th July 2022. The Respondents' intention to construct a market on the land put that right at risk. Although ownership and root of title were materially disputed, the Court declined to resolve substantive issues on affidavit evidence at the interlocutory stage, holding the competing claims should be ventilated at the hearing of the Petition.

p. 11
02

Whether the Petitioner demonstrated irreparable harm not compensable by damages

Holding

No - the loss was ascertainable and compensable in damages, so the conservatory orders failed.

Reasoning

Although the Court accepted the Petitioner's interest was ascertainable and that a long-term construction project could prevent the property reverting to its original state, it found the loss ascertainable. Structures on the land could be valued before works commenced. The Respondents being government entities capable of paying, damages were an adequate remedy, and the interim orders were discharged.

p. 13
03

Whether the Respondents' challenge to the root of title is barred by res judicata or issue estoppel

Holding

Not determined at this stage - the Court declined to decide the substantive issue on affidavit evidence, leaving it for the main petition.

Reasoning

The Petitioner argued that questions of ownership were determined with finality in Kisii Civil Case No. 166 of 2011, in which the Municipal Council of Kisii was permanently restrained from interfering with the initial allottee's occupation and possession. The Respondents contended the land was reserved as public open space under the 1971 PDP and that the allotment process was flawed. The Court held these competing claims required full ventilation at the hearing.

p. 11

Legal principles established

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  • The three Giella v Cassman Brown conditions for interlocutory injunctions are sequential hurdles; a prima facie case alone does not justify an injunction.
  • A court should not determine substantive disputed issues of ownership or root of title at the interlocutory stage on affidavit evidence alone.

Court orders

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  1. 1.The temporary orders in force are discharged.
  2. 2.The Petitioner's prayer for conservatory orders fails for failure to demonstrate irreparable harm.
  3. 3.Orders sought under prayers 5-7 are left for consideration in the main petition.
  4. 4.Each party to meet their respective costs of the application.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 1, 2(1), 2(4), 23(1), 23(3), 40(1), 40(3) and 165 of the Constitution of Kenya, 2010

Relief refused

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Temporary injunction and conservatory orders restraining the Respondents from establishing Block 01 of Nyambera Modern Market on L.R. No. KISII MUNICIPALITY/BLOCK 111/358

Petitioner failed to demonstrate irreparable harm not compensable by damages; loss was ascertainable and Respondents are government entities capable of paying any award.

p. 13

Costs

Each party to meet their respective costs of the application.

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.

Ultimately, the Petitioner’s prayer for conservatory orders fail on account of failure to demonstrate that the loss is irreparable. The orders sought under prayers 5-7 are for consideration in the main petition. Consequently, the temporary orders in force are hereby discharged.
p. 13Disposition - discharge of interim orders
Each party to meet their respective costs of the application.
p. 13Costs order
Whereas the ownership of, or root of title to, the suit property is materially disputed, the Court is disinclined to decide any substantive issue at the interlocutory stage on the basis of affidavit evidence alone.
p. 11Interlocutory stage - no determination of substantive title
If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.
p. 10Sequential application of Giella principles (Nguruman)

Issues in the judgment

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minor

Conflicting dates for the interim injunction orders

minor

Same passage elsewhere dates the interim orders to 16th June 2026

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, "Benard Nyarangi Guto v County Government of Kisii & 3 others", Case Analysis (2026). ELC Land Petition No. E002 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6232/eng@2026-10-01

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