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ELCDismissedNot stated in the judgment· [2026] KEELC 157 (KLR)

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)

Environment and Land Court of Kenya (inferred from subject matter; not expressly stated)
26 January 2026
2,409 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff/applicant, administrator of the estate of the late Martha Anne Gathoni Murage, brought a notice of motion dated 27th March 2025 seeking temporary injunctive relief restraining the 1st defendant/respondent, her tenants, agents and employees from further excavation, construction and development works on LR 209/8336/48 along its shared boundary with his property LR 209/8336/46, orders for suspension of the works, mandatory orders compelling the 2nd defendant (the county planning authority) to furnish approval documents, a ground report from the Director of Surveys, and police enforcement. The application, anchored on Order 40 of the Civil Procedure Rules and Articles 40, 47 and 159(2) of the Constitution, followed the excavation of a hole along the boundary on 8th March 2025, construction of a boundary wall, the felling of a 40-year-old tree, and alleged trespass. The 1st respondent opposed, contending the wall was complete, that approvals had been obtained, that the applicant's tree and ablution block encroached onto her land, and that the injunction lapsed for want of service within three days. The 2nd respondent confirmed approval of the wall application. Applying the Giella vs Cassman Brown test, the court found the applicant had established a prima facie right through confirmed ownership, but not infringement or irreparable damage at the interlocutory stage. The wall having been completed, an injunction would issue in vain; the court applied the mootness doctrine. The 2nd respondent's replying affidavit, not commissioned before a Commissioner for Oaths contrary to Section 5 of the Oaths and Statutory Declarations Act, was struck out. The application was dismissed with costs in the cause. Whether trespass occurred was left for the full hearing.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

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

Reasoning

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.

p. 5
02

Mootness / overtaken by events

Holding

An injunction would issue in vain because the construction of the boundary wall had already been completed and had ceased

Reasoning

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.

p. 5
03

Defective affidavit for want of commissioning

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.The notice of motion dated 27th March 2025 dismissed
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 22
  • Civil Procedure RulesOrder 16; Order 51 Rule 1; Order 40 Rules 1, 4(3) and 4
  • Constitution of KenyaArticles 40, 47, 159(2)
  • Oaths and Statutory Declarations ActSection 5 (Cap 15)

Cases cited (3)

  • Giella vs Cassman Brown & Company Limited
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR)
  • Kaminja & 3 others (Suing as Westland Environmental Caretaker Group) & 3 others v County Government of Nairobi
    (Judicial Review 441 of 2018) [2019] KEHC 2059 (KLR)
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

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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, "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.