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ELCDismissedNot stated in judgment· [2025] KEELC 3541 (KLR)

Wainaina v Njii & another (Environment & Land Case E233 of 2023) [2025] KEELC 3541 (KLR)

Environment and Land Court
5 May 2025
COChristine Ochieng
1,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to freeze rental income from a disputed Huruma plot, ruling that mandatory orders need exceptional proof before trial.

What this practically means

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Executive summary

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The 2nd Defendant moved the court by Notice of Motion dated 26th October 2023 seeking orders that all rental income from land parcel No. 209/11388/40 (I.R. No. 65953) in Huruma Estate, Nairobi be deposited into a joint interest-earning account in the names of the Defendants' Advocates, that a rent collection agent be jointly appointed, and that the Plaintiff release financial records of rental income from 1994 to date. The 2nd Defendant argued the land was registered in his late father's name, formed part of the deceased's estate, and that the Plaintiff - a confessed non-owner who had previously failed in adverse possession suits - was improperly collecting about Kshs.223,000/= monthly from a six-storey building he constructed. The 1st Defendant opposed, asserting sole registered proprietorship under a Certificate of Title and his right to collect rent alone. The Plaintiff filed no response. Justice Christine Ochieng framed a single issue: whether the rental income should be banked in a joint account and whether the Plaintiff should account for rent from 1994. Applying the Court of Appeal decisions in Nation Media Group v John Harun Mwau and Kenya Breweries v Washington O. Okeyo, the court held that the prayers were mandatory in nature requiring special circumstances, which were absent. The 2nd Defendant had admitted the Plaintiff built the structures; the prayers duplicated his Counterclaim; and existing interlocutory injunctions in the Plaintiff's favour (granted by Wambwoto J on 30th April 2024) remained un-set-aside. The application was dismissed on 5th May 2025 with no order as to costs.

Key legal issues

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Whether an interlocutory mandatory injunction should issue directing rental income be banked in a joint account

Holding

The application is unmerited; mandatory orders cannot issue at the interlocutory stage absent special circumstances, particularly where ownership is contested between the Defendants and existing injunctions in favour of the Plaintiff remain in force

Reasoning

The court noted the 2nd Defendant admitted the Plaintiff built the permanent structures on the land, and the prayers sought duplicated those in his Counterclaim. The 1st Defendant also claims ownership under a Certificate of Title. Justice Wambwoto had already granted the Plaintiff an interlocutory injunction not appealed against. Both ownership and the rental proceeds question require viva voce evidence at trial. No special circumstances justified a mandatory interlocutory order.

p. 3

Legal principles established

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  • An interlocutory mandatory injunction can only be granted in exceptional and special circumstances, in the clearest of cases, to a higher standard than a prohibitory injunction

Court orders

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  1. 1.The Notice of Motion application dated 26th October 2023 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land parcel No. 209/11388/40 (I.R. No. 65953)

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, "Wainaina v Njii & another (Environment & Land Case E233 of 2023) [2025] KEELC 3541 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3541/eng@2025-05-05

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