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ELCDismissedNot stated in the judgment as provided· [2025] KEELC 8046 (KLR)

Ndolo v Mbolu & 3 others (Environment and Land Case E020 of 2024) [2025] KEELC 8046 (KLR)

Environment and Land Court (High Court)
20 November 2025
EOE. O. Obaga
1,813 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his injunction bid because permanent injunctions cannot be granted before a full trial, and he failed to prove his rights were being infringed.

What this practically means

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Executive summary

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The Plaintiff/Applicant, holder of a power of attorney from Elizabeth Kamene Ndolo, the registered owner of L.R. Nos. 1757/29 and 1757/30, moved the court by an application dated 17th July 2024 seeking a permanent injunction restraining the Defendants from entering, trespassing upon, constructing on or interfering with the suit properties. He averred that after an audit in November 2023 the occupants failed to furnish documents justifying their occupation and had begun fencing off and constructing on their respective portions. The 1st Defendant opposed the application, contending she purchased 22 acres in 2010, produced a sale agreement and proof of payment of the purchase balance, and had been in occupation and development since then. The 2nd to 4th Defendants did not reply. The sole issue was whether the Plaintiff was entitled to a permanent injunction. Applying Giella v Cassman Brown and Mrao Ltd, the court held the Plaintiff had not established a prima facie case since he did not argue infringement of his proprietary rights on the evidence. Relying on the Kiembeni Baptist line of authorities and Snell's Principles of Equity, the court held that permanent injunctions cannot be granted at an interlocutory stage under Order 40, and an application so couched is incompetent. The application was dismissed with costs on 20th November 2025.

Key legal issues

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01

Whether the Plaintiff was entitled to a permanent injunction against the Defendants

Holding

The application was dismissed because the Plaintiff failed to establish a prima facie case and because a permanent injunction cannot be granted on an interlocutory application.

Reasoning

The court noted the Plaintiff held a power of attorney from the registered owner and that the 1st Defendant occupied a portion under sale agreements executed between 2010 and 2012. The disputed issue was the actual area occupied and whether there was unlawful encroachment. However, the Plaintiff couched his prayers as permanent injunctions, which Order 40 does not allow at an interlocutory stage, and he did not argue his case on the preponderance of evidence to show infringement of his proprietary rights. Having failed to demonstrate a prima facie case, the application lacked merit.

p. 4

Legal principles established

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  • Order 40 of the Civil Procedure Rules does not empower the court to grant a permanent injunction at an interlocutory stage; such an application is incompetent and liable for dismissal.
  • A perpetual injunction is granted only after the plaintiff has established his right and the actual or threatened infringement of it at the final determination of the parties' rights.
  • A prima facie case is one in which, on the material presented, the court concludes there exists a right apparently infringed by the opposite party so as to call for an explanation or rebuttal.

Court orders

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  1. 1.The application dated 17th July 2024 is dismissed with costs
Jurisdiction invoked
Order 40 Rule 1(a) of the Civil Procedure Rules, 2010 (injunctive relief in an original land dispute)

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, "Ndolo v Mbolu & 3 others (Environment and Land Case E020 of 2024) [2025] KEELC 8046 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8046/eng@2025-11-20

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