Odiko v Okoth & another [2025] KEELC 4255 (KLR)

Odiko v Okoth & another (Enviromental and Land Originating Summons E020 of 2025) [2025] KEELC 4255 (KLR) (5 June 2025) (Ruling)

Neutral citation: [2025] KEELC 4255 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Enviromental and Land Originating Summons E020 of 2025

E Asati, J

June 5, 2025

Between

Caleb Oulo Odiko

Plaintiff

and

Andrew Joseph Okoth

1st Defendant

John Joey Ochieng Gowa

2nd Defendant

Ruling

1. This ruling is in respect of the Notice of Motion application dated 22nd March, 2025 brought by the plaintiff pursuant to the provisions of Order 40 Rules 1 & 2 of the Civil Procedure Rules. The application seeks for an order of temporary injunction restraining the Respondents, their agents, family, servants and/or whomsoever jointly and severally from trespassing, transmitting, disposing or evicting the Applicant and his family from the land parcel Kisumu/Kanyawegi/2902 and 2903 pending the hearing and determination of the suit.

2. The application also seeks for an order that costs of the application be provided for.

3. The grounds upon which the application was brought are that the th September, 2019 he discovered the existence of the suit land parcel No. Kanyawegi/2902 and 2903 belonging jointly to the 1st and 2nd Respondents that were running right in the middle of his homestead. That the 1st and 2nd Respondents who were earlier willing to transfer the land back to the Applicant are now demanding to sell the land to him failing which they are threatening to sell the same to unsuspecting third parties who may opt to evict the Applicant and his family. That the Applicant is hence exposed to eviction any time unless the court intervenes. That the Applicant stands to suffer irreparable loss if the order sought is not granted.

4. Applicant is the registered owner of the land parcel known as Kisumu/Kanyawegi/1360 and 1359 and that the Applicant has his home thereon and cultivates part of it since 1982. That on 5

5. The application was supported by the averments in the Supporting Affidavit sworn by the Applicant on 22nd March, 2025 and the annextures thereto.

6. The application was opposed vide the Replying Affidavit sworn jointly by the Respondents on 9th June, 2025. The application was heard orally on 19th May, 2025.

7. Counsel for the Applicant referred the court to the survey report and photographs annexed to the Supporting Affidavit.

8. Counsel submitted that according to the survey report, the suit land do not exist on the ground but are on the map.

9. Counsel submitted that the balance of convenience tilts in favour of the Applicant who is in possession and occupation of the land.

10. Counsel of the Respondent submitted that the survey report was done in the year 2019 which is about 6 years ago and that this shows indolence on the part of of the Applicant hence he ought not be entitled to the equitable remedy of temporary injunction. That the Plaintiff’s claim is a boundary dispute and not a claim of adverse possession. That there is no evidence that the Plaintiff’s home sits on the suit lands. That there is no evidence of threat of eviction.

11. I have considered the application. The grounds for grant of temporary injunction as set out in the order 40 Rules 1 and 2 of the Civil Procedure Rules 2010 are that the property the subject of the suit must be in danger of being wasted, damaged or alienated.

12. The Plaintiff claims that he has possession and occupation of the suit lands

13. As the Defendants are the registered owners of the subject land, nothing stops them from handling the said lands as they are entitled to in any manner they wish in the absence of a court order restraining them. The Applicant has stated in the Supporting Affidavit that the Respondents are demanding to be paid for the land failing which they will sell the same to unsuspecting third parties. The function of an order of temporary injunction is to preserve the subject matter of the suit pending hearing of the main suit where the rights of the parties will be determined. In the circumstances of this case namely that the Plaintiff claims to be in occupation and that disposal or sale of the land and eviction of the applicant therefrom is threatened, I find that the grounds in the case of Giella v Cassman Brown have been demonstrated. The application is allowed as follows:i.an order of temporary injunction restraining the Respondents, their agents, family, servants and/or whomsoever jointly and severally from trespassing, transmitting, disposing or evicting the Applicant and his family from the land parcel Kisumu/Kanyawegi/2902 AND 2903 pending the hearing and determination of the suit.ii.Costs of the application will abide the outcome of the suit.

14. Orders accordingly.

RULING, DATED AND SIGNED AT KISUMU AND READ VIRTUALLY THIS 5TH DAY OF JUNE, 2025 THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:Maureen - Court Assistant.Odeny for the Plaintiff/Applicant.Okello for the Defendants/Respondents.