Mwanjema (Suing as the Legal Representative of the Estate of Abdalla Ali Mwamuema (Deceased)) v Land Registrar Kwale & 10 others (Environment and Land Case E059 of 2025) [2026] KEELC 128 (KLR)
The bottom line
#A Kenyan land court allowed limited protective building works on disputed property but blocked any new construction until it inspects the site in person.
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 application meets the threshold of review of Court Orders.
- 2.Whether the application dated 26th November 2025 had made a case for review of the status quo orders issued on 30th June 2025.
- 3.Who bears the costs of the instant application?
Key legal issues
#Whether the application met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1
The court set out the statutory grounds for review and confirmed the power is discretionary and must be exercised judiciously.
The court examined Section 80 of the Civil Procedure Act and Order 45 Rule 1, noting that Section 80 confers the power while Order 45 restricts the grounds: discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, applied for without unreasonable delay. The discretion, though unfettered, must be exercised judiciously and not capriciously.
Whether the Applicants made a case for review of the status quo orders issued on 30th June 2025
The application partly succeeded: the court permitted limited protective works under supervision, but barred further construction and waterproofing pending a site visit.
The court found that the extent of the constructions (three villas and a gymnasium) was new information not fully before it when the status quo orders were issued. Weighing the contractor's report on structural, health, safety and environmental impacts of cessation, and the balance of convenience, the court decided it was in the interests of justice to preserve both the property and the developments already erected, guided by its inherent powers under Section 3A, while stressing neither party gained an advantage.
Who bears the costs of the application
Each party to bear its own costs.
Although costs ordinarily follow the event under the proviso to Section 27 of the Civil Procedure Act, the court considered the circumstances of the case and held it just, equitable and conscientious that each party bear its own costs of the application.
Legal principles established
#- Section 80 of the Civil Procedure Act confers the power of review while Order 45 sets out the restrictive rules and grounds for its exercise.
- A status quo order preserves the subject matter as it existed on the day the order was made, pending determination of the dispute.
- Review is not an appeal and must be confined to error apparent on the face of the record.
Court orders
#- 1.The Notice of Motion application dated 26th November 2025 allowed upon fulfilment of pre-conditions.
- 2.Covering of the exposed foundations excavated for construction of the 3rd Villa and the Gymnasium, and covering of the incomplete 2nd Villa for protection from harsh conditions.
- 3.Stringent safety precautionary measures on site, including fencing off the construction area using high dust hoards, at the Applicant's cost.
- 4.No structural additions or further constructions on any of the properties and no waterproofing pending a site visit by the court.
- 5.The covering works to be undertaken within a 5-day period or less under the supervision of the ELC Court Administrator Kwale, an officer from the National Construction Authority, an officer from the County Government of Kwale and NEMA, in the presence of the parties.
- 6.A site visit to be conducted by the court on 27th February 2026 pursuant to Order 18 Rule 11 of the Civil Procedure Rules, 2010; parties to arrange security for court; matter to be mentioned on 12th February 2026 to confirm the plans.
- 7.Each party to bear its own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Cap. 21 and Order 45 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Waterproofing and full finishing of Villa 2 and any structural additions or further construction pending a site visit
The court limited the permitted works to protective covering and safety measures only, deferring further orders until after a site visit.
Costs
Each party to bear its own 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.
That the Notice of Motion application dated 26th November 2025 be and is hereby allowed upon the fulfilment of the following Pre – Conditions herein as stated below
There shall be no structural additions or further constructions on all the properties or waterproofing as suggested by the Applicant pending a site visit by the court.
That there be a site visit to be conducted by this court on 27th February, 2026 pursuant to the provision of Order 18 Rule 11 of the Civil Procedure Rules, 2010.
That each party to bear its own costs.
for the foregoing reasons it is this courts findings that the instant application partly succeeds.
In the interest of justice, it will be proper to preserve what had already been put up.
Issues in the judgment
#The case number/suit reference of the main suit is not stated anywhere in the ruling.
The judgment refers inconsistently to the 11th and 12th Defendants as the applicants, and the supporting affidavit is sworn by the 11th Defendant while the grounds of opposition address the 12th Defendant.
The heading for the third framed issue is labelled 'Issue No. b)' although it is the third issue (on costs).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwanjema (Suing as the Legal Representative of the Estate of Abdalla Ali Mwamuema (Deceased)) v Land Registrar Kwale & 10 others (Environment and Land Case E059 of 2025) [2026] KEELC 128 (KLR)", Case Analysis (2026). Not stated in the judgment (suit pending before the Environment and Land Court, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/128/eng@2026-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.