Masinde v Sakwa & another (Environment and Land Appeal E040 of 2023) [2026] KEELC 225 (KLR)

The court reiterated the settled principle that an appellate court does not interfere with discretionary decisions merely because it would have decided differently. Interference requires error of law or principle, consideration of irrelevant matters, failure to consider relevant matters, misapprehension of facts, or a plainly wrong decision. The trial court had correctly found that the legitimacy of the 1st respondent's claim could not be determined at the interlocutory stage. Contested facts and a pending defence and counterclaim meant the appellant's case was neither clear nor unusually strong.

The court characterised the application for removal of the restriction and access to the land as seeking a mandatory injunction. Relying on Halsbury's Laws of England Vol. 24, it held that mandatory injunctions are not normally granted on interlocutory applications absent special circumstances, such as where the case is clear and ought to be decided at once or the defendant steals a march. Because the legality of the appellant's registration was contested with other beneficiaries shown in his own certificate of confirmation of grant, the case was not clear and unusually strong.

The trial court had held that the succession process by which the appellant became registered recognised other beneficiaries including the 1st respondent, so the legitimacy of his claim could not be determined interlocutorily. The appellate court agreed, noting the suit property was registered in the appellant's name but in the 1st respondent's possession, the registration's legality was contested as fraudulent, and the respondents had filed a defence and counterclaim. Granting the orders would determine the dispute without a substantive hearing, contrary to the litigant's non-derogable right to be heard.