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ELCDismissedNotice of Motion dated 9th May 2025· [2025] KEELC 7942 (KLR)

Gitau v Kioi (Enviromental and Land Originating Summons 006 of 2025) [2025] KEELC 7942 (KLR)

Environment and Land Court
13 November 2025
LKL. Komingoi
1,222 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to stop a Ngong landowner from dealing with his property because the claimant couldn't prove her ownership claim at this stage.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado, delivered by L. Komingoi J on 13th November 2025, determined a Notice of Motion dated 9th May 2025 in which the Applicant, Elizabeth Wambui Gitau, sought an interim injunction restraining the Respondent, John Gitau Kioi, from entering, trespassing on, transferring, alienating or interfering with land parcel LR. Ngong/Ngong/105610 pending hearing of her application for imposition of a constructive trust. The Applicant relied on a sale agreement dated 10th August 1987 with the original registered owner, the late Job Ole Kango, and alleged that the Respondent fraudulently declared her deceased to obtain registration in his name, invoking Section 26(1)(b) of the Land Registration Act. The Respondent opposed, contending that the essential elements of a constructive trust were absent, that the purchase price was refunded, that he holds a valid title issued on 29th April 2024, and that a pending appeal, Civil Appeal No. E243 of 2023, with a status quo order of 8th May 2024, warranted a stay of proceedings. Framing two issues - the injunction threshold and costs - the court held that a constructive trust is a matter of fact to be proved at trial, and found that the Applicant failed to establish a prima facie case with probability of success, failed to demonstrate irreparable harm not compensable in damages (being neither in possession nor registered owner), and that the balance of convenience favoured the Respondent as registered owner in occupation who had undertaken developments. The application was dismissed with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether the Applicant met the threshold for a temporary injunction

Holding

The application was dismissed; the Applicant failed on all three Giella/Nguruman limbs.

Reasoning

The court found that the Applicant did not establish a prima facie case with probability of success; she was neither in possession nor the registered owner of the suit property. She also failed to show irreparable harm not compensable by damages, and the balance of convenience favoured the Respondent, who is the registered owner in occupation and has undertaken developments on the land, facts which were not rebutted.

p. 3

Legal principles established

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  • The existence of a constructive trust is a matter of fact that must be proved at the hearing.

Court orders

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  1. 1.The Notice of Motion dated 9th May 2025 is dismissed
  2. 2.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Land Registration ActSection 26(1)(b)

Cases cited (5)

  • Nguruman Limited Vs. Jan Bonde Nielsen & 2 Others
    (2014) KECA 606 (KLR)
  • Pius Kipchirchir Kogo Vs. Frank Kimeli Tenai
    (2018) eKLR
  • Films Rover International Limited Vs. Cannon Films Sales Limited
    (1987) 1 WLR 670
  • Juma V. Omollo & 2 Others
    (2025) KECA 1170 (KLR)
  • Shah & 7 Others Vs. Mombasa Bricks & Tiles Limited & 5 Others
    (2023) KESC 106 (KLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel LR. Ngong/Ngong/105610

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, "Gitau v Kioi (Enviromental and Land Originating Summons 006 of 2025) [2025] KEELC 7942 (KLR)", Case Analysis (2025). Notice of Motion dated 9th May 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7942/eng@2025-11-13

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