Morigi & 2 others (Suing as Trustees and Officials of Women Trust Housing Welfare Organization) v Homelands Development Investors Ltd; Kitur & 3 others (Contemnor); Wandegeya Company Limited (Intended Interested Party) (Environment and Land Case Civil Suit 463 of 2017) [2025] KEELC 8075 (KLR)
The bottom line
#The Machakos Environment and Land Court cancelled a land title obtained through a decree issued without a valid judgment and froze the property pending full hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the decree issued on 31/08/2023 is null and void and was unenforceable
- 2.Whether the intended IP should be joined as a party to these proceedings
- 3.Whether the defendant has met the legal threshold to warrant the grant of injunctive relief
Key legal issues
#Validity of the decree issued on 31/08/2023
The decree is null, void and unenforceable as it was issued when no subsisting judgment existed, the judgment having been set aside on 27/09/2018; entries 12 and 13 and the provisional certificate of title flowing from it must be cancelled
The judgment in the plaintiffs' favour had been set aside on 27/09/2018 and that fact was registered on the title. The 1st plaintiff nonetheless misled the court in her application for a decree on 28/08/2023. The court, as custodian of records, had no authority to issue a decree without a judgment, contrary to Order 21 Rule 8(1) CPR. The plaintiffs cannot retain what they unlawfully obtained; the status quo ante must be restored, following Thomson v Muchoki.
Joinder of the intended interested party
Application for joinder refused; although the intended IP has a stake and is a necessary party, joinder at this late stage would prejudice the parties in an old, part-heard suit, and the IP can pursue its claim in Machakos ELC No. 56 of 2019
Under Order 1 Rule 10(2) and the Muruatetu principles, joinder is discretionary. The intended IP was aware of this suit for years, instead filed its own suit in 2019, and the court had already directed that the two suits be heard alongside each other, so it would suffer no prejudice. Delay and the advanced stage of the present suit weighed against joinder.
Injunctive relief
The Giella threshold was not met, so no temporary injunction issued; instead a status quo order was made preserving the suit property pending hearing and determination
Applying Order 40 Rule 1 and the Giella principles as restated in Nguruman, the defendant did not establish a prima facie case, irreparable harm and balance of convenience. However, given the 1st plaintiff's contemptuous conduct, preservation of the status quo was necessary, and the registrar was directed to cancel the impugned entries and PCT.
Legal principles established
#- A decree issued without a subsisting judgment is null, void and unenforceable; deputy registrars must examine the entire court record before executing documents
- A wrongdoer cannot retain benefits illegally obtained; parties must revert to the status quo ante
- Joinder of an interested party is discretionary and requires demonstration of a proximate personal stake, prejudice upon non-joinder, and non-replicative submissions
- The Giella/Nguruman triple test applies sequentially as separate hurdles to interlocutory injunctions
Court orders
#- 1.The chief land registrar is directed to forthwith cancel entries number 12 and 13 registered on 11/09/2023 under presentation numbers 786 and 786B, in the certificate of title over L.R. No. 20523 Mavoko Municipality (IR 126163)
- 2.The chief land registrar is directed to forthwith cancel the provisional certificate of title over L.R. No. 20523 Mavoko Municipality (IR 126163) (if any) held by the plaintiffs
- 3.Pending the hearing and determination of this suit, an order of status quo prevailing on L.R. No. 20523 Mavoko Municipality (IR 126163) shall be maintained
- 4.No further dealings with the suit property by either of the parties or their agents pending determination of the suit
- 5.No other or further applications shall be entertained by the court
- 6.A mention date to be given for purposes of issuing a further hearing date
- 7.Costs of the motion assessed at Kshs. 40,000/- to be personally borne by the 1st plaintiff, Jennifer Muthoni Morigi, payable within 30 days
- 8.The notice of motion dated 13/12/2024 is dismissed with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 1 Rule 10(2), Order 21 Rule 8(1) and Order 40 Rule 1 of the Civil Procedure Rules; original civil jurisdiction over suit land L.R. No. 20523 Mavoko Municipality (IR 126163)
Relief refused
#Joinder of the intended interested party (motion dated 13/12/2024)
Inordinate delay, the suit is at an advanced stage of hearing, and the intended IP filed its own suit (Machakos ELC No. 56 of 2019) which was ordered to be heard alongside this suit, so it will suffer no prejudice
Citation/summoning of the respondents as contemnors for contempt of the order of 27/09/2018
The court found the decree of 31/08/2023 null and void but did not issue the contempt citation orders sought; it instead restored the status quo and directed cancellation of the impugned entries
Temporary injunction on the Giella v Cassman Brown threshold
The settled principles had not been advanced and the legal threshold of temporary relief was not met, though status quo was preserved
Costs
Costs of the defendant's motion assessed at Kshs. 40,000/- personally borne by the 1st plaintiff, Jennifer Muthoni Morigi, payable within 30 days; the notice of motion dated 13/12/2024 dismissed with no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Therefore, in the absence of a valid judgment, this court finds that the decree issued on 31/08/2023 contravenes Order 21, Rule 8 (1) of the Civil Procedure Rules (CPR). It also considers the decree null, void, and unenforceable.
Thus, in conclusion, this court finds the application for joinder is not merited.
The chief land registrar is directed to forthwith cancel entries number 12 and 13 registered on 11/09/2023 under presentation numbers 786 and 786B, in the certificate of title over L.R. No. 20523 Mavoko Municipality (IR 126163).
Pending the hearing and determination of this suit, an order of status quo that is prevailing on L.R. No. 20523 Mavoko Municipality (IR 126163) shall be maintained.
The costs of this motion, which are assessed at kshs. 40,000/- shall be personally borne by the 1st plaintifi, Jennifer Muthoni Morigi, and payable within 30 days hereof.
The notice of motion dated 13/12/2024 is dismissed with no orders as to costs.
Issues in the judgment
#Case number not expressly stated; the judgment refers only to a suit lodged in 2017 and the defendant's land, without printing the full case caption or number
Judgment typographically renders 'plaintiff' as 'plaintifi' and 'offer/officer' with missing 'f' throughout, including in the quoted dispositional orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Morigi & 2 others (Suing as Trustees and Officials of Women Trust Housing Welfare Organization) v Homelands Development Investors Ltd; Kitur & 3 others (Contemnor); Wandegeya Company Limited (Intended Interested Party) (Environment and Land Case Civil Suit 463 of 2017) [2025] KEELC 8075 (KLR)", Case Analysis (2025). Machakos ELC Case of 2017 (as referenced in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8075/eng@2025-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.