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ELCDismissedEnvironment and Land Case E010 of 2025· [2025] KEELC 5821 (KLR)

Kago v Cheboi (Environment and Land Case E010 of 2025) [2025] KEELC 5821 (KLR)

Environment and Land Court of Kenya
17 July 2025
6,325 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer claiming fraud lost his injunction because the signed sale agreement matched the title and he had no proof of misrepresentation.

What this practically means

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Executive summary

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The Plaintiff/Applicant, David Mungai Kago, moved the Environment and Land Court at Kwale by Notice of Motion dated 5th February 2025, under Article 40 of the Constitution, Section 3A of the Civil Procedure Act, Order 40 and Order 51 of the Civil Procedure Rules and Section 80(1) of the Environment and Land Court Act, seeking a temporary injunction restraining the Defendant, Marion Jelagat Cheboi, from interfering with, selling, transferring or alienating Kwale/Ramisi Phase 11 SS/4488 pending the hearing of the suit. The Applicant alleged that in engaging the Defendant, who had presented herself as a property agent through a YouTube channel, to purchase 1.228 Ha (one acre) from Saidi Ferusi Mwavumbaji for Kshs. 3,000,000, the Defendant fraudulently procured the sub-division of the parcel and acquired one 0.2 Ha portion for herself at only Kshs. 500,000 while the Applicant received just 0.2 Ha. The Defendant denied the fraud, asserting the Applicant knowingly purchased 0.2 Ha under executed sale agreements. The court framed three issues: the threshold for a temporary injunction, entitlement to the reliefs, and costs. Applying the Giella principles as reinforced in Nguruman, the court found no prima facie case - both sale agreements dated 30th April 2024 expressly described a 0.2 HA portion, and no evidence of misrepresentation was produced, fraud being a matter the Applicant had to prove under Sections 107-109 of the Evidence Act. Irreparable harm was also not demonstrated. The application was dismissed with costs to the Defendant, and directions for compliance with Orders 7 and 11, a pre-trial conference on 29th October 2025 and a hearing on 22nd January 2026 were issued.

Key legal issues

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01

Whether a prima facie case was established

Holding

No prima facie case was established; the evidence fell short of showing misrepresentation on price or acreage

Reasoning

The court examined the two sale agreements of 30th April 2024, both describing purchase of a 0.2 HA portion to be sub-divided from Kwale/Ramisi Phase II S.S/940. Both agreements were executed by the parties. The Applicant alleged fraud but produced no documentary evidence of pre-transaction communications showing misrepresentation; fraud must be proved by the person alleging it.

p. 9
02

Whether the Applicant would suffer irreparable harm not compensable in damages

Holding

Irreparable harm was not demonstrated

Reasoning

The terms of the sale agreement were straightforward and unambiguous; the purchase price was stated and paid, the acreage stated and the title deed confirmed it. The Applicant signed the agreement in the presence of counsel and no fraud, coercion or intimidation was proved, so the injury was compensable in damages.

p. 10
03

Whether the balance of convenience favoured the Applicant

Holding

It was unnecessary to consider the third limb as the first two had failed

Reasoning

Having found that neither a prima facie case nor irreparable harm was established, the court held that discussing the balance of convenience would be futile since the application had no foundation, consistent with the sequential application of the Giella principles.

p. 11

Legal principles established

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  • The three Giella conditions for an interlocutory injunction must be established sequentially; failure of one collapses the rest
  • An application for injunction under Order 40 must be anchored on a substantive suit
  • He who alleges fraud bears the burden of proving it under Sections 107, 108 and 109 of the Evidence Act

Court orders

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  1. 1.The Notice of Motion application dated 5th February 2025 was dismissed.
  2. 2.All parties granted 21 days to fully comply with the provisions of Orders 7 and 11 of the Civil Procedure Rules, 2010.
  3. 3.The matter to be mentioned on 29th October, 2025 for a Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010, with a hearing on 22nd January, 2026.
  4. 4.Costs of the application awarded to the Defendant/Respondent, to be borne by the Plaintiff/Applicant.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Civil Procedure Act, Cap. 21Section 3A
  • Civil Procedure Act, Cap. 21Section 27
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 3
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Orders 7 and 11
  • Environment and Land Court Act, 2011Section 80(1)
  • Evidence Act, Cap. 80Sections 107, 108 and 109

Cases cited (13)

  • Giella - Versus - Cassman Brown & Co Limited
    (1973) EA 358
  • Nguruman Limited - Versus - Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society
    [2001] Vol. 1 EA 86
  • Cresta Investments Limited - Versus - Gulf African Bank Limited & Another
    [2020] eKLR
  • MRAO Limited - Versus - First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
  • Mbuthia - Versus - Jimba Credit Corporation Ltd
    988 KLR 1
  • Edwin Kamau Muniu - Versus - Barclays Bank of Kenya Limited
  • JM - Versus - SMK & 4 Others
    [2022] eKLR
  • Pius Kipchirchir Kogo - Versus - Frank Kimeli Tenai
    (2018) eKLR
  • Paul Gitonga Wanjau - Versus - Gathuthi Tea Factory Company Limited & 2 others
    [2016] eKLR
  • Amir Suleiman - Versus - Amboseli Resort Limited
    [2004] eKLR
  • Robert Mugo wa Karanja - Versus - Ecobank (Kenya) Limited & Another
    [2019] eKLR
  • Party of Independent Candidate of Kenya - Versus - Mutula Kilonzo & 2 others
Jurisdiction invoked
Article 40 of the Constitution of Kenya, 2010; Section 3A of the Civil Procedure Act, Cap. 21; Order 40 Rules 1, 2 and 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 80(1) of the Environment and Land Court Act, 2011

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, "Kago v Cheboi (Environment and Land Case E010 of 2025) [2025] KEELC 5821 (KLR)", Case Analysis (2025). Environment and Land Case E010 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5821/eng@2025-07-17

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