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ELCPartially AllowedELC Pet Pet E001 of 2025· [2025] KEELC 6792 (KLR)

Mtidai & another v County Government of Narok & 3 others (Environment and Land Petition E001 of 2025) [2025] KEELC 6792 (KLR)

Environment and Land Court
9 October 2025
LGL. Gacheru
2,613 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Narok court stopped the reallocation of two plots, confirming that unpaid respondents lose and documented allottees keep possession.

What this practically means

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Executive summary

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This Environment and Land Court decision by L. Gacheru J determined a Notice of Motion dated 9th July 2025 filed by two petitioners within a constitutional petition invoking Article 40 of the Constitution. The applicants claimed to be beneficial owners of Oletukat Location Plots No. 69 and 72 at Enaramatishoreki Trading Centre, allocated to them by the 2nd Respondent in 2022 after payment of allocation fees totalling Kshs. 200,000/- for twenty beneficiaries, and evidenced by receipts and an allotment list. They alleged that the 4th Respondent, Elijah Kutingala, instructed the 2nd Respondent in July 2025 to conduct a fresh physical plan and reallocation of the plots to his political supporters, who were being charged Kshs. 30,000/- each, and that beacons placed in 2022 were uprooted. The applicants sought temporary injunctions restraining fresh allocation, sale, beaconing and registration of dealings on the plots. The respondents were served but neither entered appearance nor filed responses, and the application proceeded ex parte. The court applied the Giella v Cassman Brown principles. It found a prima facie case established on the unrebutted documentary evidence, found irreparable loss arising from the applicants' thwarted legitimate expectation which damages could not compensate, and held the balance of convenience favoured preserving the applicants' possession and occupation as the status quo. The application was allowed in terms of prayers 3 and 4, with costs in the cause.

Key legal issues

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01

Whether the applicants established a prima facie case with probability of success

Holding

They did, by producing receipts and an allotment list showing allocation and payment for plots No.69 and 72

Reasoning

The court applied the Giella v Cassman Brown test. The applicants annexed payment receipts (MKM4(a) and MKM4(b)), a list of rightful allottees, and evidence of payment of allocation fees deposited to the Narok County Revenue Collection Account. With no replying evidence, the court found a serious question to be tried and that the claim was neither frivolous nor vexatious.

p. 5
02

Whether the applicants would suffer irreparable loss not compensable by damages

Holding

Yes - their legitimate expectation to own the plots would be thwarted by fresh allocation to new beneficiaries

Reasoning

The court found that the applicants were shown the plots, paid allocation fees, and held a legitimate expectation that their right to property would not be interfered with. A fresh allocation to the 4th Respondent's supporters would defeat that expectation and cause harm which damages could not adequately compensate.

p. 5
03

Where the balance of convenience lies

Holding

In favour of the applicants; the status quo of their possession and occupation should be preserved

Reasoning

The court found the applicants were in possession and occupation of the suit plots, and that this possession constituted the status quo which should be maintained until the petition is heard and determined. Disturbing it would deprive the petitioners of their property rights and pave way for reallocation to new individuals.

p. 6

Legal principles established

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  • Uncontroverted evidence by an applicant whose respondents fail to appear is accepted as probable
  • Legitimate expectation to own allocated plots, if thwarted, constitutes irreparable loss not compensable by damages

Court orders

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  1. 1.Temporary injunction restraining the 2nd and 3rd Respondents from allocating afresh, selling, beaconing, generating a new physical plan, or interfering with plots known as Oletukat Location Plot No.72 and Oletukat Location Plot No.69 pending inter partes hearing and determination of the petition
  2. 2.Temporary injunction restraining the 2nd Respondent from registering any further dealing in respect of Oletukat Location Plot No.72 and Oletukat Location Plot No.69 pending hearing and determination of the petition
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rules 13 and 19

Cases cited (5)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] E.A 385
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 others
    [2003] KLR 123
  • American Cyanamid Co. vs Ethicon Ltd
    [1975] AC 396
  • Kenlab Cons. Ltd vs New Gatitu Service Station Ltd
    [1990] KLR
  • Harvells India Limited & another vs Songhong Freight Services Limited & another; Jie Xin Trading Limited (interested party)
    [2020] eKLR
Jurisdiction invoked
Article 40 of the Constitution; Rules 13 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

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, "Mtidai & another v County Government of Narok & 3 others (Environment and Land Petition E001 of 2025) [2025] KEELC 6792 (KLR)", Case Analysis (2025). ELC Pet Pet E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6792/eng@2025-10-09

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