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ELCDismissedNot stated in judgment (Notice of Motion dated 10/6/2025)· [2025] KEELC 6531 (KLR)

Birya v Chimambo & 4 others (Environment and Land Case 64 of 2025) [2025] KEELC 6531 (KLR)

Environment and Land Court
1 October 2025
MNMwangi Njoroge
809 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff applicant, Daniel Kahindi Kirimo, moved the Environment and Land Court at Malindi by a Notice of Motion dated 10th June 2025 seeking a temporary injunction to restrain the respondents from trespassing on, occupying, developing, demolishing structures on, or otherwise interfering with land title number Kilifi/Mtwapa/791, an order compelling the respondents to vacate the suit property, police supervision of compliance, and costs. The application was supported by an affidavit sworn on 28th May 2025 by the plaintiff's appointed attorney and grounded on allegations that the respondents had unlawfully entered the property, assaulted and forcibly evicted the plaintiff, commenced demolition of buildings and destruction of indigenous trees, and were erecting permanent structures and letting out parts of the land to third parties. The court directed service of the application on all respondents; an affidavit of service was duly filed, but the respondents neither entered an appearance nor filed a response. Delivering judgment on 1st October 2025, Mwangi Njoroge J held that although the plaintiff exhibited title to the suit land, the orders sought were final in nature and mandatory - the kind of orders that would issue only upon full hearing of the main suit. Citing the principle that mandatory injunctions issue only in very special circumstances, such as where a party seeks to steal a march, the court declined to grant them. Noting the respondents' non-appearance despite service, the court instead fixed the suit for formal proof on 11th November 2025, dismissed the application, and made no order as to costs.

Key legal issues

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01

Whether temporary injunction and vacation orders could issue at the interlocutory stage

Holding

The application was dismissed because the orders sought were mandatory and final in nature, inappropriate for an interlocutory application

Reasoning

The court observed that the plaintiff exhibited title to the suit land but that the orders sought (injunction, vacation of the land, police supervision of compliance) would effectively determine the suit in his favour without a full hearing. Mandatory orders are reserved for very special circumstances such as where a respondent steals a march on an applicant. Instead of granting them, the court directed an early formal proof hearing given the respondents' non-appearance despite service.

p. 2
02

Effect of service and non-appearance by the respondents

Holding

The respondents were duly served and chose not to respond; the proper course was to fix the main suit for formal proof rather than grant unopposed final orders

Reasoning

The court directed service of the application, and an affidavit of service sworn by Robert Chengo Gona on 10th July 2025 was filed, confirming the respondents were served. They filed no response. The court held that service safeguards the right to be heard, and where a served party fails to defend, the court may proceed appropriately - here by fixing an early formal proof hearing for expeditious disposal of the unopposed suit.

p. 2

Legal principles established

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  • Mandatory injunction orders can only be issued in very special circumstances, especially where the respondent has sought to steal a march on the applicant
  • Where a party has been served with process and fails to appear and defend the proceedings, the court may issue appropriate orders in their absence
  • Final-in-nature orders are not fit for grant at the interlocutory stage

Court orders

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  1. 1.The Notice of Motion dated 10/6/2025 is dismissed
  2. 2.No order as to costs
  3. 3.The plaintiff shall ensure all his documents are in place ready for formal proof
  4. 4.A formal proof hearing shall be held on 11/11/2025
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land known as Kilifi/Mtwapa/791

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, "Birya v Chimambo & 4 others (Environment and Land Case 64 of 2025) [2025] KEELC 6531 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 10/6/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6531/eng@2025-10-01

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