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ELCAllowedCivil Case No. 95 of 2024· [2025] KEELC 1121 (KLR)

Mwangi & 3 others v Ndunyu & 2 others (Civil Case 95 of 2024) [2025] KEELC 1121 (KLR)

Environment and Land Court
7 March 2025
LNL. L. Naikuni
4,742 words in judgment
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The bottom line

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The Mombasa Environment and Land Court froze execution of a land judgment and protected an estate where a grant was obtained without listing the deceased's widow and children as heirs.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Hon. L. L. Naikuni, J) on a Notice of Motion dated 30th October 2024 by four Plaintiffs/Applicants, widow and children of the late Gabriel Mithamo Ndunyu, brought under Order 40 of the Civil Procedure Rules, 2010, Sections 1A and 3A of the Civil Procedure Act, Section 3 of the Environment and Land Court Act and Articles 40(1) and 46(c) of the Constitution. The Applicants sought a stay of execution of the judgment in Mombasa ELC No. 182 of 2018 (Venasio Muriuki Kanyana v Tabitha Waruguru & 2 Others) and a temporary injunction restraining the Defendants/Respondents from interfering with a house on plot 281/I/MN (Bombolulu) and the deceased's estate, pending determination of the suit. The Applicants explained that the Respondents, their half-siblings, obtained a grant in Nairobi High Court Succession Cause No. 718 of 2017 without listing them as heirs; revocation proceedings were pending; and the Mombasa judgment was obtained without disclosure of those proceedings. The application was unopposed. The court framed three issues: whether stay should issue, whether the application met the Order 40 Rule 1 threshold for a temporary injunction, and costs. Applying Giella v Cassman Brown as restated in Nguruman Limited and Mrao Ltd, the court found a prima facie case, irreparable harm not compensable by damages, and balance of convenience favouring the Applicants, and granted both stay and injunction entirely, with costs in the cause and a mention before Hon. Justice Olola on 26th March 2025.

Key legal issues

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01

Stay of execution of the judgment in Mombasa ELC No. 182 of 2018

Holding

Stay granted because without protection the Applicants' suit would be rendered an academic exercise given the ongoing revocation proceedings in Nairobi Succession Cause No. 718 of 2017.

Reasoning

The court accepted that the judgment in Mombasa ELC No. 182 was obtained without disclosure of the pending revocation proceedings concerning the same estate. Unless execution was stayed, the revocation proceedings and the instant suit risked being rendered nugatory. Relying on the reasoning in Charles Makenzi Wambua v Africa Merchant Assurance Co. Limited, the court held justice would be done to all parties by a stay for a period to enable the Applicants prosecute their case.

p. 5
02

Temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010

Holding

All three Giella conditions satisfied: prima facie case, irreparable injury not compensable by damages, and balance of convenience favouring the Applicants; temporary injunction granted.

Reasoning

The court applied the Giella test as restated in Nguruman Limited, requiring each condition to be surmounted sequentially. The Applicants demonstrated a prima facie case as heirs of the late Gabriel Mithamo Ndunyu whose interests in the estate were not protected. The property was at risk of alienation before confirmation of the grant and conclusion of the revocation proceedings, and damages would not be an adequate remedy. The balance of convenience favoured preservation of the suit property pending trial.

p. 9

Legal principles established

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  • Costs follow the event and the successful party is typically entitled to costs unless there are compelling reasons to decide otherwise.

Court orders

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  1. 1.The Notice of Motion application dated 30th October, 2024 be and is hereby found to have merit thus allowed entirely.
  2. 2.A temporary order of stay of execution of judgment in High Court Mombasa - Environment Land Case Number 182 - Venasio Muriuki Kanyana v Tabitha Waruguru, Martin Mithamo Ndunyu & Lydiah Kabuchu Ndunyu pending the determination of the suit.
  3. 3.An order of temporary injunction restraining the Respondents from interfering with the suit property and the estate of the late Gabriel Mithamo Ndunyu pending the determination of the suit.
  4. 4.Mention on 26th March, 2025 before Hon. Justice Olola for directions on the disposal of the suit.
  5. 5.Costs of the application to be in the cause.
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act, Cap. 21; Section 3 of the Environment and Land Court Act, No. 19 of 2011; Articles 40(1) and 46(c) of the Constitution of Kenya, 2010; Order 40 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Mwangi & 3 others v Ndunyu & 2 others (Civil Case 95 of 2024) [2025] KEELC 1121 (KLR)", Case Analysis (2025). Civil Case No. 95 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1121/eng@2025-03-07

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