Murange (Suing as an Administrator of the Estate of Martha Anne Gathoni Murage) v Ng’ang’a & 2 others (Environment and Land Case E139 of 2025) [2026] KEELC 157 (KLR)
The bottom line
#A Nairobi court refused to stop a completed boundary wall, ruling that courts will not issue orders that serve no practical purpose.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
The applicant established a prima facie right through the grant of letters of administration and confirmed joint ownership, but did not establish infringement or irreparable damage at the interlocutory stage
Applying Giella vs Cassman Brown and Mrao Ltd v First American Bank, the applicant produced the grant of letters of administration intestate and confirmation of grant showing joint ownership of LR 209/8336/46. That proved the existence of a right, but the court held that proof of infringement of that right or irreparable damage had not yet been established, it being an interlocutory stage.
Mootness / overtaken by events
An injunction would issue in vain because the construction of the boundary wall had already been completed and had ceased
The 1st defendant deposed that the wall was completed by 14th April 2025. Relying on Mativo J's reasoning in the Kaminja case, the court held that courts do not act in vain and will not pronounce on academic or hypothetical issues. Whether trespass occurred remained a matter for the full hearing, but interlocutory injunctive relief would serve no practical purpose.
Defective affidavit for want of commissioning
The 2nd defendant's replying affidavit, not executed before a Commissioner for Oaths as required by Section 5 of the Oaths and Statutory Declarations Act, was fatally defective and struck out
The affidavit of Wilfred Masinde was not executed and signed before a Commissioner for Oaths. Section 5 of the Oaths and Statutory Declarations Act (Cap 15) requires affidavits to be sworn before a Commissioner for Oaths. The court found this a fatal omission and expunged the affidavit from the record.
Legal principles established
#- An affidavit not sworn before a Commissioner for Oaths is fatally defective and liable to be struck out
- Courts will not issue orders in vain where supervening events have rendered them academic or of no practical utility
Court orders
#- 1.The replying affidavit of Wilfred Masinde sworn on 24th June 2025 struck out and expunged from the record for not being executed and signed before a Commissioner for Oaths
- 2.The notice of motion dated 27th March 2025 dismissed
- 3.Costs in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 22 of the Civil Procedure Act; Order 16, Order 51 Rule 1 and Order 40 Rules 1 and 4 of the Civil Procedure Rules; Articles 40, 47 and 159(2) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murange (Suing as an Administrator of the Estate of Martha Anne Gathoni Murage) v Ng’ang’a & 2 others (Environment and Land Case E139 of 2025) [2026] KEELC 157 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/157/eng@2026-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.