Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion application dated 6th November, 2024· [2025] KEELC 3312 (KLR)

Lewa & 51 others v Mbogo (Environment & Land Case E069 of 2024) [2025] KEELC 3312 (KLR)

Environment and Land Court of Kenya
9 April 2025
6,883 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

#

The Kwale Environment and Land Court dismissed 52 applicants' bid for an injunction over disputed land, but froze the property for both sides until trial.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Kwale (L. L. Naikuni, J) determined a Notice of Motion dated 6th November 2024 by 52 Plaintiffs seeking a temporary injunction restraining the Defendant from occupying, alienating, evicting or interfering with their claimed occupation of Plot No. 300 at Dzombo Mnanazini, Lunga Lunga, pending trial. The Plaintiffs asserted ancestral ownership and occupation since time immemorial, alleging the Defendant secretly and fraudulently registered the title in her name. The Defendant replied that at the time of filing the suit the land was registered in the name of her late husband, Dan Elijah Mbogo, first registered owner in 1978, and that she only became registered proprietor on 17th January 2025 through transmission in Succession Cause No. 78 of 2015 (Nyeri), asserting the Applicants were trespassers with no root of title. The court framed two issues: whether the motion met the Order 40 Rule 1 threshold for a temporary injunction, and costs. Applying Giella v Cassman Brown and Nguruman Limited, the court held the Applicants failed to demonstrate a prima facie case, produced no certificate of title or proof of root rights, and their occupancy being doubtful, any injury was compensable in damages. Although it found the balance of convenience favoured the Defendant, the court invoked the doctrine of lis pendens and preservation principles to order maintenance of status quo by both parties pending the hearing of the main suit. The application was dismissed with costs in the cause, and pre-trial and hearing dates were fixed. The court deferred the question of the 52th Plaintiff's capacity to an appropriate application.

Key legal issues

#
01

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

Holding

They did not; they produced no title or root of ownership while the Defendant evidenced registration through a confirmed succession grant.

Reasoning

Applying the Mrao definition, the Applicants needed to show an apparent right infringed calling for rebuttal. Their claim rested on ancestral occupation averments unsupported by documents, whereas the Defendant annexed a search, grant and certificate of title showing her late husband as first registered owner in 1978 and herself as registered owner from 17th January 2025 by transmission. The court noted a certificate of title by the Applicants would have been prima facie conclusive evidence of ownership, which they lacked.

p. 10
02

Whether the Applicants would suffer irreparable injury not compensable by damages

Holding

They would not; their occupancy was in doubt and damages would suffice.

Reasoning

Guided by Pius Kipchirchir Kogo v Frank Kimeli Tenai, irreparable injury must be actual, substantial and not measurable in damages. The court found it an unhidden fact that on the documentary evidence the suit property belonged to the Defendant, while the Applicants had not shown any root of title to the property they claimed. Their occupancy being doubtful, any injury was compensable in damages, so the second Giella condition failed.

p. 10
03

Where the balance of convenience lies and whether preservation orders should issue

Holding

Although the balance of convenience was found to favour the Defendant, the court ordered status quo on preservation grounds under lis pendens.

Reasoning

The court reasoned that it had not interrogated all documents bearing on the history and chronology of the Applicants' claim, and it would serve both parties' interests that the suit property be preserved until trial. Relying on the doctrine of lis pendens and the decisions in George Kadenge v Azzuri Limited and Mawji v USIU, the court, despite finding the motion unmerited, directed maintenance of status quo pending the hearing and determination of the suit.

p. 12

Legal principles established

#
  • The three Giella conditions are sequential hurdles that must each be surmounted; failure on an earlier limb precludes consideration of the later ones.
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, though the court may order costs in the cause.

Court orders

#
  1. 1.The Notice of Motion application dated 6th November, 2024 be and is hereby found to lack merit and is dismissed.
  2. 2.Based on the doctrine of lis pendens, an order of status quo to be maintained, restraining both the Plaintiffs/Applicants and the Defendant/Respondent by themselves, their servants, agents or otherwise from disposing, selling, transferring, charging, leasing, constructing or continuing construction or in any other manner interfering with the land pending the hearing of the main suit.
  3. 3.Mention on 3rd July 2025 for an intensive pre-trial conference pursuant to Order 11 of the Civil Procedure Rules, 2010; hearing on 3rd November 2025.
  4. 4.The costs of the Notice of Motion application dated 6th November, 2024 shall be in the cause.
Jurisdiction invoked
Order 40 Rules 1, 5 and 10 of the Civil Procedure Rules, 2010; Sections 1A and 3A of the Civil Procedure Act, Cap. 21

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lewa & 51 others v Mbogo (Environment & Land Case E069 of 2024) [2025] KEELC 3312 (KLR)", Case Analysis (2025). Notice of Motion application dated 6th November, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3312/eng@2025-04-09

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