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ELCDismissedNot stated in judgment (application dated 18/3/2025)· [2025] KEELC 6970 (KLR)

Wamocha & another v Wamocha & 2 others; Malaba & 2 others (Interested Parties) (Environment and Land Case E017 of 2025) [2025] KEELC 6970 (KLR)

Environment and Land Court
15 October 2025
CNC.K. Nzili
1,894 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kitale Environment and Land Court dismissed a family's bid to block a land sale because they used the wrong court procedure and provided no proof of the land's current registered status.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Kitale (C.K. Nzili, J) on a notice of motion dated 18/3/2025 by the plaintiffs/applicants, who sought a temporary injunction restraining the defendants/respondents from selling, transferring, alienating or interfering with I.R. No. 166XXXX, maintenance of status quo, and a restriction by the Chief Land Registrar on all dealings with the property pending the hearing of the suit. The applicants pleaded that the land is held in trust by three trustees under an amended certificate of confirmation of grant dated 17/2/2015 for the benefit of three children, and that following the death of one trustee the remaining trustees had begun disposing of trust property, including a lease of 8 acres to the 1st plaintiff and alleged sales to the 3rd respondent. The 1st defendant opposed the application, asserting the trust shares were equal (12.33 acres each), that she had only leased 3 acres for the 2nd respondent's school fees, and that the 1st applicant himself was improperly dealing with the trust land through a Kenya Seed Company contract. The court restated the settled three-fold test for a temporary injunction (prima facie case, irreparable harm, balance of convenience), citing Mrao, Nguruman and Kogo. It held that the applicants had not attached an official search or register copy to demonstrate the current status of the land, and that applications by trust beneficiaries must be brought by originating summons under Order 37 Rule 2 of the Civil Procedure Rules, not a normal suit. The application was dismissed with costs. The main suit seeking dissolution of the trust and subdivision remains pending.

Key legal issues

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01

Whether the applicants satisfied the Giella/Mrao test for a temporary injunction

Holding

They did not; absent proof of the registration status of the land and use of the correct procedure, no prima facie case was shown

Reasoning

The court restated the classic three conditions for an injunction, defining a prima facie case per Mrao and irreparable damage per Nguruman. It held that in assessing a prima facie case the court does not conduct a mini-trial but asks whether there is an arguable question. Here the applicants neither attached an official search certificate or copy of the register nor used the prescribed procedure for trust-beneficiary applications, so the conditions were not met.

p. 4
02

Correct procedural vehicle for applications by trust beneficiaries

Holding

Order 37 Rule 2 of the Civil Procedure Rules applies; a normal suit is not the proper procedure

Reasoning

The court held that upon the amended certificate of confirmation of grant the legal representatives were to perfect the trust registration by transfer by transmission, confirmed by official search, and that beneficiary applications must be by originating summons under Order 37 Rule 2. What was before the court was a normal suit, not an originating summons, defeating the application.

p. 4

Legal principles established

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  • A party seeking a temporary injunction must establish a prima facie case with a probability of success, irreparable injury not compensable in damages, and balance of convenience
  • In assessing a prima facie case the court does not conduct a mini-trial; the applicant need only show a bona fide question of fact or law
  • Applications by beneficiaries of a trust concerning trust land must be brought under Order 37 Rule 2 of the Civil Procedure Rules by originating summons

Court orders

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  1. 1.The application dated 18/3/2025 is dismissed with costs
  2. 2.Orders accordingly
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over interlocutory applications in a suit concerning trust land (not expressly stated in the judgment)

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, "Wamocha & another v Wamocha & 2 others; Malaba & 2 others (Interested Parties) (Environment and Land Case E017 of 2025) [2025] KEELC 6970 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 18/3/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6970/eng@2025-10-15

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