Ngei v Athumani & 6 others (Civil Suit E039 of 2024) [2025] KEELC 1090 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with a probability of success
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
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.
Whether the applicant would suffer irreparable injury not adequately compensable by damages
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
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.
Whether the balance of convenience favours granting the injunction
The balance of convenience tilted in favour of the applicant; preserving the suit property pending trial posed the lower risk of injustice
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.
Legal principles established
#- 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
#- 1.That the Notice of Motion application dated 10th June, 2024 be and is hereby found to have merit and is allowed
- 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.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.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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muinde & another v Mwaniki & 2 others (Environment and Land Case E007 of 2025) [2026] KEELC 3394 (KLR)[2026] KEELC 3394 (KLR)28 May 2026applied
Cite this brief
#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.