Ndambo (Suing on his own behalf and on behalf of the Estate of Elizabeth Wairimu Muikia - Deceased) v Mwihoko & 2 others (Land Case E130 of 2024) [2025] KEELC 4656 (KLR)

Environment and Land Court

24 June 2025

JOJ. M Onyango

2,698 words in judgment

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The bottom line

A Kenyan landowner lost his injunction bid because an existing court judgment already confirmed the other side owned the property.

What this practically means

Executive summary

The Plaintiff, Francis Muikia Ndambo, sued in his own capacity and as administrator of his deceased wife's estate, seeking a temporary injunction restraining the Defendants from entering, evicting him from, or dealing with land parcel Karai/Gikambura/3637, an order for police-supervised restoration of possession, and costs. He alleged that his late wife purchased 0.20ha from the 1st Defendant in December 2008 for Kshs 1,150,000 out of the estate of Mary Nyakio Njung'e, took possession and developed it, but that parallel succession proceedings at Milimani resulted in the land being subdivided and Karai/Gikambura/3637 transferred to the 3rd Defendant, followed by a forcible eviction and demolition in May 2024 without notice. The 2nd Defendant opposed, relying on a confirmed grant of 22nd November 2010 in Milimani Succession Cause No. 1909 of 2009, a sale to the 3rd Defendant, earlier litigation including a 2013 ruling (Musyoka J.) denying the deceased any claim, dismissal of Milimani ELC Case No. 1450 of 2014 for want of prosecution, and a judgment delivered on 17th October 2024 in Kikuyu ELC Case No. E040 of 2023, which found the Plaintiff a trespasser, issued a permanent injunction against him and an eviction order. The court applied the Giella v Cassman Brown test and held that since the prior ownership judgment had not been shown to be set aside, the Applicant failed to establish a prima facie case with a probability of success; the remaining Giella limbs were not considered. The application was dismissed with costs to the Applicant.

Key legal issues

Whether the Applicant established a prima facie case for a temporary injunction

Holding

The application failed at the first Giella limb; a prior judgment in Kikuyu ELC Case No. E040 of 2023, delivered 17th October 2024, declared the 2nd and 3rd Respondents the legitimate owners and issued a permanent injunction and eviction order against the Plaintiff, and no evidence showed that judgment was set aside

Reasoning

The court restated the Giella v Cassman Brown test and the Mrao Ltd definition of a prima facie case. It noted the prior Kikuyu ELC judgment in favour of the Defendants, which found the Plaintiff a trespasser and ordered eviction. Since the Plaintiff produced no evidence that the judgment had been set aside, the Applicant could not show an apparently infringed right, and the remaining limbs of the test did not require consideration.

p. 6

Legal principles established

A temporary injunction requires the applicant to establish a prima facie case with a probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
Where a court of competent jurisdiction has determined ownership of the suit property and there is no evidence the decision was set aside, an applicant seeking an injunction cannot demonstrate a prima facie case

Court orders

1.The Notice of Motion dated 28th August 2024 seeking temporary injunction is dismissed
2.The Applicant shall bear the costs of the application

Authorities

Legislation

High Court (Practice and Procedure) RulesRule 3
Civil Procedure ActSections 1A, 1B and 3A
Civil Procedure Rules, 2010Order 40 Rule 1

Cases cited (2)

Giella v Cassman Brown & Company Limited
[1973] E.A 358
Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others

Jurisdiction invoked: Rule 3 of the High Court (Practice and Procedure) Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ndambo (Suing on his own behalf and on behalf of the Estate of Elizabeth Wairimu Muikia - Deceased) v Mwihoko & 2 others (Land Case E130 of 2024) [2025] KEELC 4656 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4656/eng@2025-06-24

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