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ELCDismissedEnvironment and Land Case 98B of 2022· [2025] KEELC 6123 (KLR)

Mukui v Githuthwa (Environment and Land Case 98B of 2022) [2025] KEELC 6123 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Thika)
18 September 2025
JOJ. M. ONYANGO
1,554 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Thika refused to stop a woman who has lived on and farmed disputed land since 1974, holding the registered owner showed no risk of damage or loss.

What this practically means

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Executive summary

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The Defendant/Applicant, registered owner of land parcel Ndaragua/Karatu/2421, moved the court by Notice of Motion dated 27th November 2024 seeking a temporary injunction to restrain the Plaintiff/Respondent from cutting down trees, keeping animals or poultry, constructing, undertaking crop husbandry or otherwise interfering with his use of the suit property pending the hearing of the main suit, in which the Plaintiff claims the property by adverse possession. The Applicant relied on a title deed, photographs and a decree in Gatundu RM Civil Suit No. 12 of 2011 (against the Respondent's brother-in-law, through whom she does not claim). The Respondent countered that she has lived on the land since 1974, was married there, buried her husband there in 1996, and has farmed and kept livestock and poultry for over 45 years; she denied destroying trees, burning charcoal or intending to build. The court, applying Order 40(1) of the Civil Procedure Rules and the Giella v Cassman Brown test as reinforced in Nguruman, held that the Applicant failed to prove the property was in danger of waste, damage or alienation, and thus had no prima facie case; nor did he demonstrate irreparable harm uncompensable by damages. The balance of convenience, if reached, would favour the Respondent, in occupation since 1974. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Defendant/Applicant established a prima facie case for a temporary injunction against the adverse-possession claimant

Holding

No prima facie case established because the Applicant did not prove the property was in danger of being wasted, damaged or alienated

Reasoning

The Applicant is the registered owner, but the Respondent claims adverse possession since 1974. At the interlocutory stage the court cannot determine entitlement by adverse possession; the Applicant's case rests on the property being in danger of waste or damage. The Respondent denied cutting trees, burning charcoal or intending to construct, and has lived and farmed there for decades, so the Applicant failed to prove any intended waste, damage or alienation.

p. 3
02

Whether the Applicant demonstrated irreparable harm not compensable by damages

Holding

No irreparable harm demonstrated

Reasoning

The court reviewed the Applicant's supporting affidavit and found nothing indicating loss that damages could not remedy. Having failed both the prima facie case and irreparable harm limbs, the sequential Giella test collapses and the balance of convenience, though it would favour the Respondent, need not be determined.

Legal principles established

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  • A registered owner seeking to restrain an adverse-possession claimant must prove danger of waste, damage or alienation of the property to establish a prima facie case
  • If the first two Giella conditions fail, the balance of convenience need not be considered

Court orders

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  1. 1.The Notice of Motion dated 27th November 2024 is dismissed
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 1

Cases cited (4)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA. 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd v. Afraha Education Society
    [2001] vol. 1 EA 86
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
Jurisdiction invoked
Order 40(1) of the Civil Procedure Rules - statutory power to grant temporary injunctions

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, "Mukui v Githuthwa (Environment and Land Case 98B of 2022) [2025] KEELC 6123 (KLR)", Case Analysis (2025). Environment and Land Case 98B of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6123/eng@2025-09-18

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