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ELCDismissedNot stated in the judgment as provided· [2025] KEELC 830 (KLR)

Karuku & 3 others v Mohamud (Environment & Land Case E065 of 2023) [2025] KEELC 830 (KLR)

Environment and Land Court
25 February 2025
NMN.A. Matheka
1,362 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Machakos court refused to stop a builder because the applicants couldn't prove which property was actually in dispute.

What this practically means

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Executive summary

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This was an application dated 28th November 2023 brought by the Applicants under sections 152A, 152B, 152E and 152F of the Land Act, 2012 seeking temporary injunctions restraining the Respondent from constructing, depositing building materials, trespassing, leasing or otherwise interfering with Title No. IR Number 226579 (L.R No. 20317) at Mavoko Municipality, Machakos, together with an order empowering M/S Icon Auctioneers to carry out an eviction with police assistance. The Applicants, who claimed to be registered proprietors of the suit land, asserted that the Respondent had entered and remained on the parcel without consent, impeding development, and that eviction notices had been issued on 6th June 2021. The court applied the three-pronged test for temporary injunctions from Giella v Cassman Brown as restated in Nguruman Limited v Jan Bonde Nielsen, and the definitions of irreparable injury and balance of convenience in Pius Kipchirchir Kogo v Frank Kimeli Tenai. The Respondent countered that he was in occupation of L.R No. 32744, a separate and distinct parcel, producing his certificate of title. The court found it could not determine at the interlocutory stage whether the two parcels were one and the same or who the legitimate owner was, that the Applicants had failed to establish a prima facie case, and that the balance of convenience favoured the Respondent, who was admittedly in possession. The application was dismissed with costs in the cause, and the parties were directed to comply with Order 11 and fix the suit for hearing.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

The Applicants failed to establish a prima facie case because the Respondent claimed occupation of a different parcel (L.R No. 32744) and the court could not determine the legitimate owner at the interlocutory stage

Reasoning

The Applicants relied on their title and a search to establish ownership of IR No. 226579/L.R No. 20317. The Respondent produced a certificate of title for L.R No. 32744, asserting the two parcels were separate and distinct. The court found it could not determine whether the properties were one and the same or who the legitimate owner was, so no prima facie case was made out.

p. 3
02

Balance of convenience

Holding

The balance of convenience favours the Respondent, who is currently in occupation

Reasoning

Applying the Pius Kipchirchir Kogo formulation, the court weighed the comparative inconvenience. It was not disputed that the Respondent was in possession of the property he claimed, and on that basis the balance of convenience fell in his favour rather than the Applicants'.

p. 3

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially satisfy the three requirements of prima facie case, irreparable injury and balance of convenience
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation or corrupt or illegal acquisition

Court orders

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  1. 1.The application dated 28th November 2023 is dismissed
  2. 2.Costs of the application to be in the cause
  3. 3.Parties advised to comply with Order 11 and fix the matter for hearing

Authorities

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Legislation

  • Land ActSections 152A, 152B, 152E, 152F
  • High Court (Practice and Procedure) RulesRule 3
  • Land Registration ActSection 26

Cases cited (3)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    CA No. 77 of 2012 (2014) eKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    (2018) eKLR
Jurisdiction invoked
Sections 152A, 152B, 152E and 152F of the Land Act, 2012 and Rule 3 of the High Court (Practice and 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, "Karuku & 3 others v Mohamud (Environment & Land Case E065 of 2023) [2025] KEELC 830 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/830/eng@2025-02-25

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