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ELCPartially AllowedKwale ELCLC/3/2024 (with Kwale ELCLC E055 of 2024)· [2025] KEELC 524 (KLR)

Jozef & another v Kizondo & another (Environment & Land Case 3 & E055 of 2024 (Consolidated)) [2025] KEELC 524 (KLR)

Environment and Land Court
13 February 2025
ADA.E DENA
5,994 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The court froze all dealings with a disputed Tiwi Beach title but refused to hand it over or transfer it before trial.

What this practically means

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Executive summary

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This ruling by A.E Dena, Judge of the Environment and Land Court at Kwale, disposed of two interlocutory applications arising from a botched sale of Mombasa/Block/Tiwi Beach/50 for Kshs 20,000,000, in which the Plaintiffs deposited Kshs 16,500,000 which was later refunded, and the 1st Defendant surrendered the title to Kwale/Tiwi Beach Block/393 (referred to as 933 in parts of the judgment) as security under clause 3.6 of the sale agreement. The 1st and 2nd Defendants applied by notice of motion dated 5/8/24 to compel the Plaintiffs to release the original title, arguing the refund extinguished any claim and that retention was unjust enrichment. The Plaintiffs, in the subsequent suit E055 of 2024, applied on 30/8/24 for inhibition orders, a vesting order transferring the security parcel to the 2nd Plaintiff, and custody of the title, invoking clause 3.6 and alleging the 1st Defendant had presented a fake title and breached an agency agreement of 6/4/24. The court dismissed a preliminary objection on form, applying Article 159(2) and the overriding objective. Holding that the release of title and vesting orders were in the nature of mandatory interlocutory injunctions requiring special circumstances, the court found none and refused both, noting fraud and capacity issues required trial. However, applying section 68(1) of the Land Registration Act and the status quo principles in Thugi River Estate, the court granted an inhibition over parcel Kwale/Tiwi Beach/933, ordered its registration, and directed the Plaintiffs to deposit the original title with the Deputy Registrar within 30 days. Costs on both applications were placed in the cause. The suits were directed for mention on 11/03/25.

Key legal issues

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01

Whether an interlocutory mandatory injunction (release of title) could issue

Holding

It could not; no special circumstances were demonstrated and granting it would dispose of the substantive dispute and risk alienation of the property

Reasoning

The court adopted the Kenya Breweries v Okeya and Nation Media Group v Mwau tests: special circumstances and a higher degree of assurance than for prohibitory injunctions are required. The order sought would finally determine title, the parties' claims of fraud and capacity could only be resolved at trial, and the intended disposal of the title to settle medical bills conflicted with Order 40 Rule 1(a) and (b) of the Civil Procedure Rules. Dismissed.

p. 8
02

Whether a vesting order transferring the property should issue at interlocutory stage

Holding

Refused as it replicated prayers (b) and (d) of the plaint and would amount to summary determination

Reasoning

The court reiterated that a mandatory interlocutory injunction requires special circumstances; a vesting order at this stage would decide the dispute summarily amidst contestations. Allegations by both sides remain to be proved at trial.

p. 9
03

Whether an inhibition order over Kwale/Tiwi Beach/933 should issue

Holding

Granted; preservation of the register is necessary pending trial as the lower-risk course

Reasoning

Relying on section 68(1) of the Land Registration Act and Thugi River Estate, the court held the inhibition preserves the status quo. Both parties demonstrated prima facie interests (registration and alleged lien), the 1st Defendant intended to dispose of the property, and the inhibition carried the lower risk of injustice. The title was ordered deposited with the Deputy Registrar.

p. 10
04

Whether the preliminary objection (want of supporting affidavit; Chamber Summons instead of Notice of Motion) had merit

Holding

Dismissed; the substance of the application was unaffected and substantive justice prevails over technicalities

Reasoning

There was on record a Supporting Affidavit sworn on 30/8/24 by the 1st Plaintiff, even if it did not state it supported that application, which did not affect substance. Guided by Article 159(2) and Order 51 Rule 10(1) and (2), the court administered justice without undue regard to technicalities.

p. 5

Legal principles established

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  • A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and only in clear cases
  • A prima facie case in a civil application is a genuine and arguable case showing an apparent infringement of a right calling for rebuttal
  • An order of inhibition prevents any dealings with land pending further court orders, preserving the status quo while a dispute is ongoing

Court orders

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  1. 1.The Application dated 5th August 2024 is dismissed
  2. 2.Costs on the application dated 5th August 2024 shall be in the cause
  3. 3.Pending hearing and determination of the main suit, an order of inhibition issued restricting registration of any transfer and/or other form of disposition, transaction against parcel Kwale/Tiwi Beach/933
  4. 4.The Kwale Land Registrar shall register the inhibition over parcel Kwale/Tiwi Beach/933
  5. 5.Within 30 days of the order the Plaintiffs shall surrender the original title to Kwale/Tiwi Beach/933 to the Deputy Registrar, Environment & Land Court Kwale, for safe keeping pending determination of the suit and/or until further orders
  6. 6.Costs of the application dated 30/8/24 shall be in the cause
  7. 7.Leave to appeal the ruling granted if required
  8. 8.Suits to be mentioned on 11/03/25 for further directions
Jurisdiction invoked
Article 162(2) of the Constitution and Section 4 of the Environment and Land Court Act (as invoked by the Plaintiffs)

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, "Jozef & another v Kizondo & another (Environment & Land Case 3 & E055 of 2024 (Consolidated)) [2025] KEELC 524 (KLR)", Case Analysis (2025). Kwale ELCLC/3/2024 (with Kwale ELCLC E055 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/524/eng@2025-02-13

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