Rusbela Okumu Olwero (Suing as Administrator Ad Litem of the Estate of the late Richard Olwero Ochoki) v County Government of Homa Bay & 2 Others

machinery and the sudden erection of modern administrative masonry, it sparks an existential crisis that reverberates from the courtroom back to the soil. Yet, side by side with this deeply human narrative stands the County Assembly—an organ of devolved democracy tasked with bringing services closer to the grassroots. The crucible of this litigation is to determine whether these two compelling forces occupy distinct legal spheres or whether a collision has occurred through an error of mapping, a misidentification of boundaries, or an overreach of public authority. Let justice now be meticulously weighed upon the scales of the law. II. Summary of Pleadings and Applications 3. Before this Court for determination is the Plaintiff/Applicant's Notice of Motion dated 3rd August 2026 (frequently referenced as filed on 31st July 2026 / 3rd August 2026). The application is brought pursuant to Order 40 Rules 1 & 3, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A, and 63(e) of the Civil Procedure Act (Cap 21), and all other enabling provisions of the law, principally seeking interlocutory injunctive orders in respect of land parcel KANYADA/KOTIENO/KATUMA "A"/879 (hereinafter "the suit property"). a) The Injunctive Relief Sought: The Applicant seeks orders restraining the Defendants, whether by themselves, employees, contractors, representatives, or agents, from entering upon, remaining on, occupying, trespassing, encroaching, constructing, excavating, developing, alienating, transferring, leasing, charging, or interfering with Parcel No. 879 pending the hearing and determination of the suit. 2|Page HOMA BAY ELC LC E027 OF 2026 – RULING

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b) Cessation of Works: The Applicant further seeks an order compelling the Defendants to immediately cease and suspend all construction works, excavation, earthworks, and developments on the parcel. c) The Supporting Material: The application is supported by the Applicant’s affidavit, material annexures, and a Supplementary Affidavit sworn on 24th August 2026. d) The Responses: The 2nd Respondent (the County Assembly of Homa Bay) stoutly opposes the application via a Replying Affidavit sworn by its Clerk, Hanningtone Day Ochieng, on 6th August 2026, and a Further Affidavit sworn on 14th September 2026. The 1st and 3rd Respondents did not file submissions, though such an omission does not relieve the Applicant of her legal burden. Written submissions were duly filed by both the Applicant (24th August 2026) and the 2nd Respondent (19th September 2026). III. The Rival Cases 1. The Plaintiff/Applicant’s Case a) Proprietary Interest: The Applicant asserts that she is the administrator ad litem of the Estate of the Late Richard Olwero Ochoki, who was the absolute registered proprietor of land parcel KANYADA/KOTIENO/KATUMA 'A'/879, measuring approximately 0.5 Ha, supported by a Title Deed issued on 28th November 2014 and a Certificate of Official Search dated 25th August 2025. b) The Grievance: It is contended that the Defendants unlawfully entered the suit property without color of right or compulsory acquisition, commencing the construction of the County Assembly of Homa Bay Arujo Ward Office, complete with permanent structures and a branded gate. 3|Page HOMA BAY ELC LC E027 OF 2026 – RULING

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c) Historical Objection & Evidence: The Applicant relies on site photographs, an objection letter dated 28th August 2024 from K'Bahati & Co. Advocates demanding cessation, a 1972 Adjudication Sketch Map for Katuma 'A', and a letter dated 14th July 2026 from James Mbui Marienga (proprietor of Parcel No. 875). d) The Boundary Dispute Argument: The Applicant argues that the current Registry Index Map (RIM) has erroneously swapped or misidentified Parcel Nos. 875 and 879 while extending Parcel No. 880 into the Applicant's land, meaning the physical ward offices actually stand on Parcel No. 879. 2. The 2nd Defendant/Respondent’s Case a) Defense of Misidentification: The 2nd Respondent maintains that the entire substratum of the Applicant's suit is founded on a fundamental mistaken identity of the land. While not disputing the existence of Parcel No. 879, it avers that the Arujo Ward Office is physically situated on Land Parcel Number KANYADA/KOTIENO/KATUMA "A"/880, which measures approximately 1.8 Ha. b) Lawful Public Allocation: Parcel No. 880 was registered in favor of the former South Nyanza County Council on 26th May 1994, reserved for Kabunde Market. The site was identified through public participation, requested by the local Member of County Assembly, and approved by the County Department of Lands, Housing, Physical Planning, and Urban Development as public land. c) Legal Deficit: The 2nd Respondent submits that historical adjudication sketch maps cannot automatically override a 1994 title without formal survey and boundary-determination procedures under Section 18 of the Land Registration Act, and that the Applicant failed to discharge the burden of proof under 4|Page HOMA BAY ELC LC E027 OF 2026 – RULING

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Sections 107, 108, and 109 of the Evidence Act to link the physical ward office to Parcel No. 879. IV. Issues for Determination Upon a holistic evaluation of the pleadings, affidavits, and rival written submissions, the following core issues crystallize for determination: 1. Whether the Applicant has established a prima facie case with a probability of success, specifically demonstrating that the Arujo Ward Offices are physically constructed upon Land Parcel No. KANYADA/KOTIENO/KATUMA 'A'/879. 2. Whether Land Parcel No. KANYADA/KOTIENO/KATUMA 'A'/880 is a distinct, separately registered public parcel held by a public authority. 3. Whether the Applicant stands to suffer irreparable injury that cannot be compensated by an award of damages, and whether the balance of convenience favors the grant of interlocutory injunctive reliefs. 4. What consequential orders should issue regarding costs and the conduct of the suit. V. Comparative Jurisprudence and Legal References To adjudicate this dispute with judicial sagacity, this Court draws wisdom from robust regional jurisprudence and statutory authorities: a) Kenya: i) The Constitution of Kenya, 2010: Article 40 protects property rights; Article 62 defines public land; Article 162(2)(b) and Section 13 of the Environment and Land Court Act confer jurisdiction. 5|Page HOMA BAY ELC LC E027 OF 2026 – RULING

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ii) The Land Registration Act (No. 3 of 2012): Sections 24, 25, and 26 establish indefeasibility of title; Sections 18 and 19 govern boundary disputes and cadastral mapping. iii) The Evidence Act (Cap 80): Sections 107, 108, and 109 place the burden of proof on the asserting party. iv) Giella v. Cassman Brown & Co. Ltd [1973] EA 358: The locus classicus setting out the triple test for interlocutory injunctions. v) Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR): Defined a prima facie case as one going beyond an arguable case, showing an infringement calling for a rebuttal. vi) Nguruman Limited v. Jan Bonde Nielsen & 2 Others [2014] KECA 606 (KLR): Reaffirmed that the triple requirements are distinct, sequential hurdles. vii) Dina Management Limited v. County Government of Mombasa & 5 Others [2023] KESC 30 (KLR): Emphasized that title is the product of a process, and irregular roots do not attract Article 40 protection. viii) Azzuri Limited v. Pink Properties Limited [2018] KECA 392 (KLR): Held that boundary discrepancies between historical maps and RIMs require proper technical survey evidence rather than bare assertions. ix) James Kihara Wanderi & 5 Others v. Paul Wachira Muchunu [2020] KEELC 2673 (KLR): Highlighted the evidentiary importance of technical survey diagrams in encroachment claims. x) Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others [2012] KESC 8 (KLR): Emphasized that a court's jurisdiction flows strictly from the Constitution and legislation. b) Uganda: 6|Page HOMA BAY ELC LC E027 OF 2026 – RULING

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i) Kamugisha v. Rurangaranga [2001] 2 EA 394 (SCU): Requiring clear, uncontradicted evidence linking trespass directly to a specific title rather than neighborhood configurations. ii) Uganda Telecom Ltd v. Airtel Uganda Ltd [2018] UGSC 13: Affirmed that equity will not restrain public utilities without absolute technical precision. c) Tanzania: i) Attorney General v. Lohay Akarebey [1995] TLR 105: Stated that historical community occupation must be strictly reconciled with statutory land registration regimes holding presumptive legality. d) Malawi: i) Attorney General v. Illovo Sugar (Malawi) Ltd [2004] MWSC 1: Held that interim injunctions against public projects require a high threshold of proof due to public interest. ii) Mhone v. Attorney General [1995] 1 MLR 165: Established that proprietary claims against public authorities must be backed by credible expert surveyor reports. VI. Analysis and Findings 1. Detailed Legal Analysis of the Prima Facie Case Threshold 4. The principles governing the grant of interlocutory injunctions are well settled. The fountainhead of these principles remains the classic formulation in Giella v. Cassman Brown & Co. Ltd [1973] EA 358, where the East African Court of Appeal established the triple requirements: an applicant must establish a prima facie case with a probability of success; demonstrate that they will suffer irreparable injury which cannot be compensated by an award of damages; and, 7|Page HOMA BAY ELC LC E027 OF 2026 – RULING

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where doubt exists, satisfy the court that the balance of convenience favors them. 5. The standard of what constitutes a prima facie case was subsequently elaborated by the Court of Appeal in Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR), where the Court famously held: "So what is a prima facie case? I would say that in civil cases it is a case in 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." 6. Crucially, Mrao Ltd established that a prima facie case is considerably more than a merely arguable case; the material presented must disclose an apparent infringement of a clear legal right and demonstrate the probability of success at the substantive trial. Furthermore, in Nguruman Limited v. Jan Bonde Nielsen & 2 Others [2014] KECA 606 (KLR), the Court of Appeal reaffirmed these principles, emphasizing that the triple requirements are distinct, sequential hurdles that an applicant must surmount step-by-step. The Court in Nguruman cautioned that while assessing whether a prima facie case exists, a court must avoid conducting a premature mini-trial or examining the ultimate merits of the dispute too closely. 2. Application of the Prima Facie Threshold to the Present Suit 7. Turning to the matter at hand, there is no serious dispute at this interlocutory stage that the Applicant holds documentary evidence showing that KANYADA/KOTIENO/KATUMA “A”/879 is registered in the name of the 8|Page HOMA BAY ELC LC E027 OF 2026 – RULING

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late Richard Olwero Ochoki. Sections 24, 25, and 26 of the Land Registration Act, 2012 accord immense legal significance to such registration, vesting absolute ownership and making a certificate of title prima facie evidence of proprietorship. While the Supreme Court in Dina Management Limited v. County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) underscored that title is the product of a process and that an irregular root of title does not enjoy constitutional protection under Article 40, that principle does not mean a registered title can be casually dismissed merely because its location is contested. 8. However, the core difficulty for the Applicant under the first Giella limb lies in bridging the evidentiary gap. The Applicant’s case hinges on the assertion that the Arujo Ward Offices are physically constructed on Parcel No. 879, relying on a 1972 Adjudication Sketch Map, historical neighborhood correspondence, and an alleged discrepancy with the current Registry Index Map (RIM). 9. As underscored in cases such as Azzuri Limited v. Pink Properties Limited [2018] KECA 392 (KLR), Mhone v. Attorney General [1995] 1 MLR 165, and Kamugisha v. Rurangaranga [2001] 2 EA 394, an applicant alleging encroachment or overlapping cadastral boundaries cannot succeed at an interlocutory stage merely by producing historical sketches and pointing out visual discrepancies. There must be independent, accredited expert survey evidence reconciling the ground position with the paper records. 10.The Applicant’s historical-map arguments raise an arguable question regarding past configurations, but they do not amount to proof that the physical structures currently erected by the 2nd Respondent stand on Parcel No. 879 rather than the separate public parcel, Parcel No. 880, which has been registered in favor of a public authority since 26th May 1994. Consequently, 9|Page HOMA BAY ELC LC E027 OF 2026 – RULING

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the Applicant has failed to establish an apparent infringement of a demonstrated right with a probability of success at this stage. 3. The Doctrine of Judicial Restraint and Statutory Boundary Mechanisms 11.The reluctance of this Court to intervene at this juncture is further anchored in the vital jurisprudential doctrine of judicial restraint. Courts, while possessing the mandate to arbitrate disputes and protect rights, must exercise institutional self-policing caution, respecting the limits of their competence and adhering strictly to statutory frameworks. 12.Section 18(1) of the Land Registration Act designates cadastral maps and filed plans as indicating approximate boundaries, while Section 18(2) expressly bars courts from entertaining actions relating to registered land boundaries unless those boundaries have first been determined by the Land Registrar. As affirmed in Azzuri Limited, where statutory boundary procedures are ignored, the court should not arrogate to itself technical surveying functions assigned by Parliament to the Land Registrar and Director of Surveys. Furthermore, as reiterated by the Supreme Court in Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others [2012] KESC 8 (KLR), a court's jurisdiction flows strictly from the Constitution and written law. 13.Judicial restraint demands that this Court refrain from stepping outside its judicial remit to perform cartographic reconciliations of a 1972 adjudication sketch map against a modern RIM at an interlocutory stage. To do otherwise would be to convert an interlocutory application into an unauthorized technical tribunal, violating the separation of powers and short-circuiting the specialized administrative mechanisms established by statute. 4. Irreparable Damage and Insights from Ugandan Jurisprudence 10 | P a g e HOMA BAY ELC LC E027 OF 2026 – RULING

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14.Having found that the Applicant has failed to cross the primary hurdle of establishing a prima facie case, the second and third limbs of the Giella test (as structured sequentially in Nguruman) do not strictly arise. 15.Nevertheless, regarding the Applicant's profound concerns over ancestral ties, sentimental value, and family graves, this Court finds profound persuasive guidance in East African regional jurisprudence, particularly from the Supreme Court of Uganda in Kamugisha v. Rurangaranga [2001] 2 EA 394 and Uganda Telecom Ltd v. Airtel Uganda Ltd [2018] UGSC 13. Ugandan apex jurisprudence firmly establishes that: i. Strict Evidentiary Nexus: Irreparable injury cannot be established in a vacuum or presumed based on sentimental or neighborhood claims; it must be tied directly to a verified infringement of an established legal title through uncontradicted evidence. ii. Primacy of Public Utilities: Courts of equity will exceptionally refuse to grant interlocutory injunctions that halt ongoing public infrastructure or administrative developments executed by public bodies unless the proprietary overlap is proved with absolute technical precision. Where public funds have been deployed for lawful public facilities (such as the Arujo Ward Offices on public land registered since 1994), halting the project based on speculative boundary overlaps inflicts irreparable administrative paralysis, whereas damages remain an adequate remedy should the main suit eventually succeed. VII. Disposition 16.Accordingly, applying the principles in Giella v. Cassman Brown and Mrao Ltd, and mindful of regional comparative wisdom from Uganda, Tanzania, and Malawi regarding public developments and proprietary proof: 11 | P a g e HOMA BAY ELC LC E027 OF 2026 – RULING

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1. The Plaintiff/Applicant's Notice of Motion dated 3rd August 2026 is hereby dismissed. 2. The interim orders of injunction granted heretofore (if any) are hereby vacated and set aside. 3. The parties are at liberty to approach the Land Registrar and the relevant Survey Office for the ascertainment, determination, and fixing of the boundaries and cadastral position of Land Parcels Nos. KANYADA/KOTIENO/KATUMA “A”/879 and 880 in accordance with Sections 18 and 19 of the Land Registration Act, 2012. 4. Costs of this Application shall be in the cause. 5. The parties are directed to fast-track pre-trial directions and proceed to an expeditious hearing of the main suit on its merits, where formal expert surveyor evidence can be thoroughly tested. Orders accordingly. GIVEN under my hand and the Seal of the Environment and Land Court at Homa Bay this 5th day of October, 2026. HON. JUSTICE J.W WANYONYI - JUDGE ENVIRONMENT AND LAND COURT AT HOMA BAY In the Presence of; 1. Osiemo for Nyacheti for the Plaintiff -Present 2. Dorcas Osuri for Respondent Court Assistant: Ms. Awino 12 | P a g e HOMA BAY ELC LC E027 OF 2026 – RULING

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