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ELCDismissedNot stated in judgment (ELC, Bungoma)· [2025] KEELC 472 (KLR)

Makhanu & 3 others v Makhanu & another (Environment & Land Case E023 of 2024) [2025] KEELC 472 (KLR)

Environment and Land Court
6 February 2025
ECE.C. Cherono
2,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court refused to stop a family land dispute development because the applicants had no documents proving their claimed trust over titled land.

What this practically means

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Executive summary

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The 1st and 2nd Plaintiffs/Applicants, co-wives of the 2nd Defendant/Respondent, filed a Notice of Motion dated 14th November 2024 under Sections 3, 3A and 63(e) of the Civil Procedure Act and Order 51 of the Civil Procedure Rules seeking temporary injunctions restraining the Respondents from disposing of, utilising, leasing or constructing on land parcels E.Bukusu/N.Sang'alo/5822 (0.05Ha) and E.Bukusu/N.Sang'alo/2623 (3.6Ha). They claimed the properties were purchased with milk and sugarcane proceeds they contributed and were registered in their husband's name on the understanding he would hold them in trust for the children. They alleged the husband intended to lease the smaller parcel to the 1st Respondent for 30 years without their consent, and that the 1st Respondent had demolished structures and was constructing permanent buildings, possibly financing the construction by charging the larger parcel. The 1st Respondent countered that his father purchased the parcel in 1969-1972, before the marriages; that the farming proceeds paid school fees; that the farming activities postdated the purchase; and that the family meeting of 29th September 2024 resolved he was free to develop the land, for which County Government of Bungoma, NEMA and NCA approvals were obtained, with construction about 90% complete. Applying the Giella v Cassman Brown principles, the court held the Applicants established no prima facie case, as no receipts or trust agreement were annexed and the titles showed absolute ownership; they failed to demonstrate irreparable injury not compensable in damages, having not shown the Respondents incapable of paying; and the balance of convenience did not favour them. The application was dismissed with each party bearing their own costs and the interim injunction of 14/11/2024 was discharged.

Key legal issues

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01

Prima facie case

Holding

Applicants did not establish a prima facie case; no receipts or trust agreement annexed and titles show absolute ownership

Reasoning

The Applicants alleged the suit properties were acquired from milk and sugarcane proceeds and held in trust. The court found no receipts from sugar companies or dairy societies annexed, no written trust agreement produced, and the title deeds and official searches show the 2nd Defendant as absolute proprietor, not trustee. The Giella test was therefore not satisfied on the first limb.

p. 4
02

Irreparable injury

Holding

Not demonstrated; damages would be adequate

Reasoning

Although the Applicants claimed the property was worth approximately Kshs 20,000,000, they did not demonstrate that the Respondents would be incapable of paying damages if the suit succeeded. The court thus found the second Giella limb unsatisfied, relying on the definition in Pius Kipchirchir Kogo v Frank Kimeli Tenai.

p. 4
03

Balance of convenience

Holding

Not shown to tilt in the Applicants' favour

Reasoning

Applying the third Giella limb, the court found the Applicants had not demonstrated that the inconvenience they would suffer if the injunction was withheld would be greater than that which the Respondents would suffer if it was granted. This limb accordingly also failed, resulting in dismissal of the application.

p. 5

Legal principles established

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  • A prima facie case is more than an arguable case; the evidence must show infringement of a right and probability of success
  • An interlocutory injunction requires demonstration of irreparable injury not compensable in damages

Court orders

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  1. 1.The Notice of Motion dated 14th November 2024 is dismissed
  2. 2.Each party to bear their own costs
  3. 3.The interim injunction orders issued on 14/11/2024 are discharged

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A and 63(e)
  • Civil Procedure RulesOrder 51

Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
Jurisdiction invoked
Sections 3, 3A and 63(e) Civil Procedure Act and Order 51 Civil Procedure Rules

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, "Makhanu & 3 others v Makhanu & another (Environment & Land Case E023 of 2024) [2025] KEELC 472 (KLR)", Case Analysis (2025). Not stated in judgment (ELC, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/472/eng@2025-02-06

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