Mulama & 2 others v Eglyn Chepchirchir Choge & 7 others (Environment & Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2025] KEELC 1247 (KLR)
The bottom line
#A Kenyan land court refused to reinstate evicted squatters because they waited nearly eight years to act, showing that delay can kill even strong land claims.
What this practically means
#Executive summary
#Key legal issues
#Whether applicants established exceptional circumstances for a mandatory (restorative) injunction at the interlocutory stage
They did not; the court must feel a high degree of assurance the injunction would be rightly granted at trial, and the applicants' delay, failure to pursue contempt or police complaints, and changed circumstances (succession decree) defeated the claim.
The court applied the settled principles that a mandatory injunction at interlocutory stage is granted sparingly, only in clear cases and on exceptional circumstances, using the Giella test as a baseline with a higher standard. The applicants' delay of close to 8 years, lack of evidence of the eviction's perpetrators, failure to enforce prior orders via contempt, and the subsisting succession decree meant restoration would create greater hardship and injustice.
Whether adverse possession claims require continued occupation pending trial
No; the claim rests on dispossession for 12 years during the operative period (1972-2016), and absence of occupation at hearing does not weaken it.
Relying on Wambugu v Njuguna, the court held adverse possession is a question of fact based on evidence of dispossession and discontinuance of the owner's possession for 12 years. Because the relevant adverse period had allegedly matured before the 2016 eviction, reinstatement was unnecessary to preserve the claim, undermining irreparable harm and balance of convenience.
Whether a prohibitory injunction should issue to preserve the suit land pending hearing
No; the applicants failed to demonstrate a prima facie case, irreparable damage or balance of convenience, and did not lodge cautions or official searches to substantiate threatened dealings.
The applicants asserted imminent subdivision, transfer and reconstruction of the land register, but produced no recent official searches and never lodged cautions despite awareness since 2014. Equitable rights under Section 38 of the Limitation of Actions Act must first be proved before crystallizing; the applicants also could not refute the subsisting, unstayed succession decree on oath.
Legal principles established
#- A mandatory interlocutory injunction will not be granted absent special or exceptional circumstances and a high degree of assurance that it would be rightly granted at trial.
- A claim based on adverse possession binds both predecessors and successors in title; loss of occupation does not defeat the claim.
- Unreasonable delay disentitles a party to equitable remedies such as a mandatory injunction; a party must follow up its own case rather than blame its advocates.
Court orders
#- 1.The application dated 18/9/2024 is dismissed with costs.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over interlocutory applications in land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulama & 2 others v Eglyn Chepchirchir Choge & 7 others (Environment & Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2025] KEELC 1247 (KLR)", Case Analysis (2025). Notice of motion dated 18/9/2024 (arising from consolidated suits incl. ELC No. 306 of 2016), ELC Kitale. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1247/eng@2025-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.