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ELCPartially AllowedNotice of Motion dated 10th June, 2024 (main suit number not stated in judgment)· [2025] KEELC 1090 (KLR)

Ngei v Athumani & 6 others (Civil Suit E039 of 2024) [2025] KEELC 1090 (KLR)

Environment and Land Court
6 March 2025
5,308 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner with a title deed stopped rivals from building on or selling his plot until the full case is heard.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Kwale (Hon. L. L. Naikuni, J) on a Notice of Motion dated 10th June, 2024 by Mutuku Ngei, the Plaintiff/Applicant, brought under Order 40 Rules 1, 2 and 4(1) and Order 51 Rule 1 of the Civil Procedure Rules, 2010. Supported by an affidavit of Esther Ndulu Mutuku, his attorney, the application sought a temporary injunction restraining the 1st to 7th Defendants from disposing of, selling, transferring, charging, leasing, constructing or continuing construction on, or otherwise interfering with Plot Title No. Kwale/Pungu Fuel Area/96 pending the hearing of the main suit. The applicant deponed that he acquired the vacant land in 2009 under a title deed, but in early 2024 found the defendants had encroached and erected temporary, semi-permanent and permanent structures, and that they persisted despite being notified to vacate through the area Chief. Only the applicant filed submissions; the defendants did not appear. The court framed two issues: whether the application met the Order 40 Rule 1 threshold, and costs. Applying Giella v Cassman Brown and Nguruman Limited v Jan Bonde Nielsen sequentially, the court held the applicant had a prima facie case based on the title deed; that the injury, concerning his home, was irreparable and not adequately compensable in damages; and that the balance of convenience favoured preservation of the property. The court found the application merited and issued a temporary injunction in the terms sought, ordered the matter mentioned on 9th June, 2025 for pre-trial conference, and directed that costs of the application be in the cause.

Key legal issues

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01

Whether the applicant established a prima facie case with a probability of success

Holding

The applicant, holding a title deed to the suit property acquired in 2009, demonstrated a prima facie case that the defendants were trespassers whose acts threatened his right to the property

Reasoning

The court applied the Mrao definition of a prima facie case and the Nguruman requirement of a clear and unmistakable right. The deponent annexed a title deed (ENM-2) showing the applicant as registered owner, and averred that the land was vacant on acquisition, that the defendants encroached in 2024 and erected structures despite being asked to vacate. At interlocutory stage the court only weighs the relative strength of the parties' cases and does not make final findings of contested facts.

p. 7
02

Whether the applicant would suffer irreparable injury not adequately compensable by damages

Holding

The applicant satisfied the second Giella condition because the suit property was his home and family asset whose loss could not be measured in money

Reasoning

Relying on Pius Kipchirchir Kogo v Frank Kimeli Tenai on the meaning of irreparable injury, the court found that the defendants' trespass, construction and alleged wasting of the property deprived the applicant of use and enjoyment. Because the property was the applicant's home, the injury could not be adequately compensated by an award of damages, and damages would be an inadequate remedy.

p. 8
03

Whether the balance of convenience favours granting the injunction

Holding

The balance of convenience tilted in favour of the applicant; preserving the suit property pending trial posed the lower risk of injustice

Reasoning

Guided by Paul Gitonga Wanjau and Amir Suleiman, the court held that a lower risk of injustice lies in granting the injunction, since it had not interrogated all documents on the history of the claim and preservation of the property served the interests of both parties pending full hearing on the merits.

p. 9

Legal principles established

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  • All three Giella conditions for an interlocutory injunction are sequential hurdles that must be surmounted; the applicant cannot leap-frog to injunction on a prima facie case alone
  • Costs follow the event and the successful party is entitled to costs unless there are compelling reasons to decide otherwise

Court orders

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  1. 1.That the Notice of Motion application dated 10th June, 2024 be and is hereby found to have merit and is allowed
  2. 2.That an order of Temporary injunction do issue restraining the Defendants/Respondents either by themselves, their servants, agents and or otherwise from disposing, selling, transferring, charging, leasing, constructing or continuing construction or in any other manner interfering with land in Plot Title No. Kwale/Pungu Fuel Area/96 pending the hearing of the main suit
  3. 3.That the matter be mentioned on 9th June, 2025 for purposes of conducting the Pre-Trial Conference in accordance with the provision of Order 11 of the Civil Procedure Rules, 2010
  4. 4.That the cost of the Notice of Motion application dated 10th June, 2024 shall be in the cause
Jurisdiction invoked
Order 40 Rules 1, 2 and 4(1) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ngei v Athumani & 6 others (Civil Suit E039 of 2024) [2025] KEELC 1090 (KLR)", Case Analysis (2025). Notice of Motion dated 10th June, 2024 (main suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1090/eng@2025-03-06

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