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ELCDismissedNot stated in judgment

Issa v Kantaria & 4 others (Land Case E080 of 2025) [2025] KEELC 4493 (KLR)

Environment and Land Court
17 June 2025
1,835 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop an eviction after a court-ordered auction, holding that valid court sale orders override an unregistered lease.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 24th February 2025 in a land dispute before the Environment and Land Court at Nairobi (Christine Ochieng, Judge). The Plaintiff, a rent-paying lessee in occupation of Title Number LR/209/8343/151, South 'C', sought an interlocutory injunction restraining the Defendants from evicting her, an order that auction proceeds be deposited in court, and confirmation of her right of first refusal under the lease. She asserted the property was auctioned on 21st January 2025 while she was in occupation, without the 90 days' notice and pre-emptive rights contained in her Tenancy Agreement. The 2nd Defendant, the registered proprietor, supported the application, contending that a Deputy Registrar in Divorce Case No. 6 of 1997 had improperly ordered the auction, against which he had appealed. The 1st, 3rd and 4th Defendants opposed, showing the sale was in execution of orders in Divorce Case No. 6 of 1997 issued in execution of a Court of Appeal judgment in Civil Appeal No. 139 of 2010, and that the lease was unregistered and a sham; the property was sold to the 5th Defendant as highest bidder after two advertisements in the Daily Nation. Applying Giella v Cassman Brown and Mrao v First American Bank, the court found no prima facie case since court-ordered sale overrode the lease terms, and refused the mandatory injunction for want of special circumstances per Nation Media Group v Mwau. The application was dismissed with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an interlocutory injunction should issue restraining the Defendants from the suit property pending outcome of the suit
  2. 2.Whether the proceeds of the auction should be deposited in Court

Key legal issues

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01

Whether the plaintiff established a prima facie case for an interlocutory injunction

Holding

No prima facie case was established as the suit property was sold by public auction pursuant to orders in Divorce Case No. 6 of 1997 in execution of a Court of Appeal judgment

Reasoning

Applying Giella v Cassman Brown and the definition of a prima facie case in Mrao v First American Bank, the court held that existing orders of courts of competent jurisdiction for the auction, which had been effected, overrode the lease terms relied on. The plaintiff also failed to explain why she did not bid at the auction, which was twice advertised in the Daily Nation.

p. 3
02

Whether an interlocutory mandatory injunction (deposit of auction proceeds in court) should issue

Holding

Refused; no special or exceptional circumstances demonstrated

Reasoning

The court applied Nation Media Group & 2 others v John Harun Mwau, which requires a higher standard than for a prohibitory injunction: exceptional and special circumstances, and the clearest of cases. Apart from being a lessee of property sold under a court order, the plaintiff showed no such circumstances.

p. 4
03

Whether the remaining Giella limbs needed consideration

Holding

Not considered; where no prima facie case is established, irreparable injury and balance of convenience need no consideration

Reasoning

Relying on Nguruman Ltd v Jan Bonde Nielsen, the court declined to deal with the other two limbs of the injunction test once it found no prima facie case.

p. 4

Legal principles established

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  • Once property is sold by public auction, the only remedy for an owner or interested person is to sue for damages if the auction was improperly conducted
  • Sale of property pursuant to orders of a court of competent jurisdiction overrides the terms of an unregistered lease relied on by an occupier

Court orders

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  1. 1.The Notice of Motion application dated 24th February 2025 is unmerited and is disallowed
  2. 2.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over the suit land Title Number LR/209/8343/151, South 'C'

Relief refused

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Interlocutory injunction restraining eviction pending hearing of the main suit

No prima facie case established; the property was sold pursuant to orders of a court of competent jurisdiction which override the unregistered lease

p. 4

Deposit of auction proceeds in court / mandatory injunction

No special or exceptional circumstances shown to justify an interlocutory mandatory injunction

p. 4

Costs

Each party to bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances, I find the Notice of Motion application dated the 24th February 2025 unmerited and will disallow it.
p. 4Disposition - application dismissed
Each party to bear their own costs.
p. 4Costs order
It is my considered view that since the suit property was to be sold pursuant to orders issued in High Court Divorce Case No. 6 of 1997, on 5th November 2024 in execution of a Court of Appeal judgment issued in Civil Appeal No. 139 of 2010, this overrides the terms of the purported Lease, which the Plaintifi seeks to rely on.
Court-ordered sale overriding lease terms
it is trite that auctioning of property is governed by the Auctioneers Rules and once property is sold by public auction, the only remedy an owner or a person who has an interest in it has, is to sue for damages if the auction was not properly undertaken.
p. 3Remedy after public auction

Issues in the judgment

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minor

The case number of this suit is not stated anywhere in the judgment

minor

Typographical rendering throughout - 'Plaintifi' for 'Plaintiff' and 'afidavit' for 'affidavit', indicating an OCR-scanned source

minor

The Defendants' submissions refer inconsistently to 'Civil Appeal No. 39 of 2019' whereas the body of the judgment repeatedly refers to 'Civil Appeal No. 139 of 2010'

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, "Issa v Kantaria & 4 others (Land Case E080 of 2025) [2025] KEELC 4493 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4493/eng@2025-06-17

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