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ELCPartially AllowedNot stated in judgment as extracted· [2025] KEELC 3441 (KLR)

Mungai & another v Muli & another (Environment & Land Case E012 of 2024) [2025] KEELC 3441 (KLR)

Environment and Land Court
29 April 2025
NMN.A. MATHEKA
2,491 words in judgment
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The bottom line

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A Kenyan court protected land buyers from losing their disputed property during arbitration, but only by freezing the situation rather than fully blocking the seller.

What this practically means

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Executive summary

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The applicants, purchasers under a sale agreement dated 4th January 2017 with the 1st Respondent for a two-acre rectangular portion of Ndalani/Ndalani block 1/241, moved the court under Article 40 of the Constitution, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Section 7 of the Arbitration Act. They complained that the vendor subdivided the land contrary to the agreed schedule, apportioning them a V-shaped parcel (L.R. No. Ndalani/Ndalani block 1/2224) and later subdividing the retained portion to create L.R. No. Ndalani/Ndalani block 1/2479, the disputed parcel on which the Respondent resides. They sought prohibitory injunctions restraining charging, transfer, alienation or any dealings with that property pending arbitration, which they had referred to the Chartered Institute of Arbitrators Kenya by letter dated 12th February 2024, plus ancillary orders including police enforcement and costs. The 1st Respondent opposed, asserting the applicants took possession in 2017 and never complained, making the suit an afterthought. Applying Giella v Cassman Brown as restated in Nguruman, and Mrao on prima facie case, the court found the triple requirements satisfied: a legal right apparently infringed, risk of irreparable loss, and balance of convenience favouring the applicants since the lower risk of injustice lay in granting interim protection. The court declined to grant the injunctions in the specific terms sought and instead ordered maintenance of the status quo pending the hearing and determination of the suit, with costs in the cause. Delivered at Machakos on 29th April 2025 by N.A. Matheka, J.

Key legal issues

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01

Prima facie case

Holding

The applicants' sale agreement, mutation form and registry index map raised an arguable right (a rectangular 2-acre portion) apparently infringed by the disputed V-shaped subdivision

Reasoning

The court applied the Mrao definition of a prima facie case. The applicants attached the sale agreement, mutation form and registry index map. The court noted it had not interrogated all documents bearing on the subdivision history, supporting caution rather than a definitive finding of merit.

p. 3
02

Irreparable injury and balance of convenience

Holding

The risk of the suit property being dealt with by strangers and the applicants losing their acquired property justified interim protection

Reasoning

Applying Kogo and Amir Suleiman, the court weighed the comparative inconvenience and held that the lower risk of injustice lay in granting interim protection while awaiting full interrogation of documents at the hearing of the suit.

p. 5
03

Interim protection pending arbitration under Section 7 Arbitration Act

Holding

The court maintained the status quo pending determination of the suit rather than granting the section 7-type interim measures in the terms sought

Reasoning

Although the application invoked Section 7 of the Arbitration Act and referred the dispute to arbitration, the court exercised its injunctive jurisdiction on Giella principles and issued a status quo order pending hearing of the suit.

p. 5

Legal principles established

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  • Applicants for interlocutory injunctions must sequentially establish a prima facie case, irreparable injury, and that the balance of convenience favours them
  • In interlocutory injunctive relief the court should opt for the lower rather than the higher risk of injustice

Court orders

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  1. 1.That the status quo be maintained pending the hearing and determination of the suit
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Civil Procedure Rules 2010Order 51 Rule 1; Order 40 rule 1
  • Civil Procedure ActSections 1A, 1B, 3A and 63
  • Arbitration ActSection 7

Cases cited (7)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    CA No. 77 of 2012 (2014) eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd
    (2003) EKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    (2018) eKLR
  • Paul Gitonga Wanjau vs Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR
  • Amir Suleiman vs Amboseli Resort Limited
    (2004) eKLR
  • Robert Mugo Wa Karanja vs Ecobank (Kenya) Limited & Another
    (2019) eKLR
Jurisdiction invoked
Article 40 of the Constitution; Order 51 Rule 1 Civil Procedure Rules 2010; Sections 1A, 1B, 3A and 63 Civil Procedure Act (Cap 21); Section 7 Arbitration Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mungai & another v Muli & another (Environment & Land Case E012 of 2024) [2025] KEELC 3441 (KLR)", Case Analysis (2025). Not stated in judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3441/eng@2025-04-29

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