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ELCDismissedNotice of motion dated 16th July, 2025 (main suit pending, LR No. 5989/16)· [2026] KEELC 174 (KLR)

Kibue v Kibue (Sued as the Legal Guardian and Manager of the Estate of Annunciata Waithera Kibue) (Environment and Land Case E298 of 2025) [2026] KEELC 174 (KLR)

Environment and Land Court
27 January 2026
MCMbogo C.G.
1,700 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on the plaintiff's notice of motion dated 16th July, 2025 seeking a temporary injunction restraining the defendant, his sibling, from harassing, alienating, dealing, evicting or interfering with his occupation of LR No. 5989/16 pending the hearing of the main suit, with ancillary orders directing the OCS Runda Police Station to oversee execution. The plaintiff deposed that he had lived on the suit property for over thirty years with his parents' consent, that the property devolved to his mother Annunciata Waithera Kibue through Succession Cause No. 2358 of 1996, and that the defendant, appointed legal guardian of their mother's estate in Nairobi HCFMISC E227/2021 on grounds of mental incapacity, had issued him a notice to vacate and demolish his constructions. The defendant opposed, deposing that the suit property was distributed to their mother by the confirmed grant, that the plaintiff has no proprietary rights, has built his own maisonette on Parcel No. 5989/131, and uses the suit property to run a garbage collection business and sell livestock produce, frustrating her guardianship responsibilities. Neither party filed written submissions. Framing the sole issue as whether a temporary injunction should issue, the court applied the Giella v Cassman Brown conditions as explained in Nguruman Limited. Holding that the plaintiff failed to establish a prima facie case with a probability of success, since he did not controvert evidence that he holds no proprietary rights and owns separate land, the court declined to consider the remaining limbs. The application was dismissed with costs to the defendant.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success for an interlocutory injunction

Holding

No - the plaintiff did not controvert evidence that he holds no proprietary rights in the suit property and has his own land elsewhere

Reasoning

The certificate of confirmation of grant showed the suit property devolved to Annunciata Waithera Kibue, the parties' mother. The plaintiff himself acknowledged that proprietary rights vest in his mother, claiming only long residence with parental consent. The defendant, as court-appointed legal guardian of the mother's estate, produced a decree in Nairobi HCFMISC E227/2021. The plaintiff failed to rebut that he has no proprietary interest and has built a maisonette on Parcel No. 5989/131. Without an apparently infringed right, the first Giella hurdle fails.

p. 3
02

Whether the remaining Giella limbs (irreparable injury, balance of convenience) required consideration

Holding

No - where the prima facie case is not established, the other limbs need not be considered

Reasoning

Relying on Nguruman Limited v Jan Bonde Nielsen, the court treated the three conditions as separate, distinct and logical hurdles to be surmounted sequentially. Having failed at the first hurdle, the applicant's irreparable injury and balance of convenience arguments fell away. The court also noted it was not determining the issues finally but only whether interlocutory relief was merited on the usual criteria.

p. 4

Legal principles established

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  • The three Giella conditions for an interlocutory injunction are applied as sequential, distinct hurdles; failure at the first (prima facie case) dispenses with consideration of irreparable injury and balance of convenience

Court orders

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  1. 1.The notice of motion dated 16th July, 2025 is dismissed with costs to the defendant/respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rule 1(a), Order 40 Rule 2, Order 51 Rule 1

Cases cited (6)

  • Giella v Cassman Brown & Co Ltd
    [1973] 1 EA 358
  • E.A. Industries v. Trufoods
    [1972] E.A. 420
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Julius Kuria Nganga v Wambui Kigamba
    [2017] eKLR
  • Edwin Kamau Muniu v Barclays Bank of Kenya Ltd
    Nairobi (Milimani) High Court, Civil Case No.1118 of 2002
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Kibue v Kibue (Sued as the Legal Guardian and Manager of the Estate of Annunciata Waithera Kibue) (Environment and Land Case E298 of 2025) [2026] KEELC 174 (KLR)", Case Analysis (2026). Notice of motion dated 16th July, 2025 (main suit pending, LR No. 5989/16). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/174/eng@2026-01-27

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