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

4. In response to the application the 1st, 3rd and 4th Respondents filed Replying Afidavit and Notice of Preliminary Objection. The court gave directions on 10th November, 2025, that the application and the Preliminary Objection be heard together by way of written submissions. Timelines for filing for filing of the submissions were given. As at the date of this ruling, only the 1st and 3rd Defendants had filed their submissions. 5. The grounds for the grant of an order of temporary injunction under Order 40 Rule 1 pursuant to which the application was brought are that the Applicant must prove by Afidavit or otherwise that the property, the subject matter of the suit, is in danger of being wasted, damaged or alienated or is wrongly sold in execution of a decree. As held in the case of Giella v Cassman Brown Co. Ltd (1973) 358 that the Applicant must establish a prima facie case with a probability of success, an interlocutory injunction will not normally be granted unless the Applicant would sufier irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience. 6. In the present case the applicant claims that he is the registered owner of land parcel known as Kisumu/ Nyalenda “B”/2033 (the suit land herein), that the Defendants encroached onto the land and are planning to bury the body of their deceased relative thereon, the Applicant served the Defendants with Notice to vacate the suit land but the Defendants have failed, neglected and/or refused to comply. 7. The response of the 1st Respondent, as contained in her Replying Afidavit sworn on 20th February, 2026, is that she has been in occupation of the portion measuring 50 feet by 100 feet of the suit land since 21st January, 2005, whereon she has erected her home and buried her kin without interruption by the applicant. That the Plaintifi’s title to the portion she occupies is extinguished. The 3rd Respondent too averred in her Replying Afidavit sworn on 20th February, 2025, that she also occupies a portion of the suit land measuring 50 ft by 100ft since 12th May, 1999, and that she has her home thereon, and that the Plaintifi’s title to that portion she occupies has become extinguished. The 4th Defendant, through her Replying Afidavit, sworn 6th November, 2025, contended that she occupies land parcel No. Kisumu/Nyalenda “B”/511 and not the suit land. That in case she occupies any part of the suit land, then she has done so peacefully since the year 2002 when she purchased the same. 8. In addition to the Replying Afidavit, the Respondents also filed preliminary objections. The 1st and 3rd Respondents’ preliminary objection brought vide the Notice of preliminary objection dated 20th February 2026 was on the ground that the suit is statutorily time-barred and should be dismissed. The 4th Respondent’s preliminary objection was on grounds, inter alia, that the suit is statute-barred, the court lacks jurisdiction under the provisions of section 7 of the Limitation of Actions Act and article 162 (2) of the Constitution, and that the Plaintifi lacks locus standi, there being no privity of contract, ownership or legal interest disclosed in the pleadings and that the application was defective having been brought contrary to the provisions of Order 51 Rule 1. It was submitted on behalf of the 1st and 3rd Respondents vide the written submission dated 20th February, 2025, that the Applicant had not demonstrated a prima facie case with a probability of success. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1630/eng@2026-01-20 2

page 2 of 4

9. The Applicant annexed to the Supporting Afidavit a copy of the title deed to show that he was the registered owner of the suit land. The Respondents exhibited land sale agreements to explain how and when they entered onto the suit land. The 4th Respondent contended that she occupies a difierent parcel of land and not the suit land. 10. The burden lay with the Applicant to demonstrate, at least prima facie, that the entry of the Respondents onto the suit land was unlawful, that his claim was not time-barred, and that by reason of the Respondents’ entry onto the suit land, his right thereto is threatened of being violated or has been violated. In Mrao Ltd v First American Bank Kenya Ltd & 2 Others [2003] eKLR, the Court of Appeal held regarding what constitutes a prima facie case that: “ A prima facie case in a civil Application includes but is not confined to a genuine and arguable case. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 11. In the present case, the Applicant did not disclose the year when the Respondents entered the suit land to discount the Respondents’ claim that the Applicant’s title may have become extinguished. The Applicant only averred that a survey done in 2021 revealed that the Defendants had encroached onto the suit land. The Defendants claim to have their homes on the suit land where they reside. They annexed to their Replying Afidavit photographs to demonstrate this. 12. It has not been demonstrated that the applicant will sufier irreparable injury if the order of temporary injunction is not granted. 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. 13. I find that the Applicant has not demonstrated grounds for the grant of an order of temporary injunction. 14. Regarding the Preliminary Objections, in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 it was held “ …a Preliminary Objection consists of a point of law which has been pleaded, or which by clear implication out of pleadings, and which, if argued as a Preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration.’’ And that “ A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.’’ 15. A preliminary objection must be based on pure points of law, must arise from the pleadings, may dispose of the suit/case if argued as a pure point of law and must be argued on the assumption that all https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1630/eng@2026-01-20 3

page 3 of 4

facts pleaded by the opposite party are correct; it cannot succeed if any fact has to be ascertained; or if what is sought is the exercise of the court’s discretion. 16. In the present case, the preliminary objections raised require the court to interrogate the facts of the case as contained in the documents filed by the parties. It is desirable that suits, unless hopelessly defective, be heard on merit. Both preliminary objections and the application are hereby dismissed. Each party to bear its own costs of the application and the preliminary objections. Orders accordingly. RULING DATED AND SIGNED AT KISUMU, DELIVERED VIRTUALLY THIS 20TH DAY OF JANUARY 2026. E. ASATI, JUDGE. In the presence of: Maureen -Court Assistant. Nyangweso for the Plaintifi/Applicant. N/A for the 1st, 2nd, and 3rd Defendants/ Respondents. Obuya for Obiero for the 4th Defendant/Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1630/eng@2026-01-20 4

page 4 of 4