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ELCDismissedApplication dated 1st August 2025 (Notice of Motion)· [2026] KEELC 698 (KLR)

Shah & another v Juma & 2 others; Chelogoi (Interested Party) (Environment and Land Case 312 of 2009) [2026] KEELC 698 (KLR)

Environment and Land Court
4 February 2026
4,179 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a landowner's bid for an injunction, reinstatement, and contempt findings because a final ownership judgment already governed the property.

What this practically means

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Executive summary

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By a Notice of Motion dated 1st August 2025 under Section 5 of the Judicature Act and Sections 1A, 1B and 3A of the Civil Procedure Act, the Applicant (joined in the main suit as an Interested Party) sought a temporary injunction restraining his eviction from a Loresho, Kabete property, his reinstatement to possession, police enforcement of court orders, and leave to commence contempt proceedings - and a finding of contempt - against the 1st and 2nd Respondents and several police and ODPP officers following his eviction on 31st July 2025. He relied on a ruling of 22nd April 2024 dismissing the Respondents' application for his eviction. The Respondents, relying on a final judgment of 28th July 2022 declaring them bona fide owners, argued the Applicant had no prima facie case, that the court was functus officio, that reinstatement would reverse a Court of Appeal stay, and that the removal of occupants was a criminal law enforcement action authorised by the DPP, not a civil eviction. Framing two issues, the court applied Giella v Cassman Brown and Mrao Ltd and found no prima facie case, since the 2022 judgment remained binding and the 2024 ruling had granted no possession; reinstatement, being a mandatory and restorative remedy, would effectively determine possession despite the subsisting judgment and stay. On contempt, applying Samuel M.N Mweru and Gatharia K. Mutitika, the court held the state officers had not been joined or served personally and that contempt, being quasi-criminal, was not proved to the requisite standard. The application was dismissed with costs.

Key legal issues

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01

Whether the Applicant established a prima facie case for an injunction

Holding

No prima facie case; ownership was settled by the final judgment of 28th July 2022 and the ruling of 22nd April 2024 declined eviction but granted no possession.

Reasoning

The court applied Mrao Ltd's definition of a prima facie case and held that although the Applicant was not a party to the 2022 judgment, its binding effect persists unless challenged through legal channels. The 22nd April 2024 ruling merely declined eviction in the prevailing circumstances; it did not grant possession. Ordering reinstatement would effectively determine possession despite a subsisting Court of Appeal stay.

p. 6
02

Whether the Respondents and state officers were in contempt of the ruling of 22nd April 2024

Holding

Contempt not proved; state officers were neither named nor served in their individual capacities, and the eviction was said to be a criminal law enforcement action rather than a civil eviction.

Reasoning

Applying the elements in Samuel M.N Mweru and Gatharia K. Mutitika, the court found the order of 22nd April 2024 clear, but the alleged contemnor officers were not joined or served personally, offending natural justice. Contempt being quasi-criminal, the Applicant bore a heightened burden of proving wilful and deliberate disobedience, which he failed to discharge.

p. 9

Legal principles established

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  • Reinstatement is a mandatory and restorative remedy that cannot be granted where it would effectively determine possession notwithstanding a subsisting judgment and a subsisting stay.
  • The Giella conditions for an injunction are to be considered sequentially; failure on the first limb is fatal.
  • In contempt proceedings where committal is sought, the alleged contemnor must be specifically identified, joined and served in his personal capacity.
  • Contempt of court is quasi-criminal and must be proved to a standard higher than a balance of probabilities.

Court orders

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  1. 1.The application dated 1st August 2025 is dismissed
  2. 2.Costs of the application to the 1st and 2nd Respondents

Authorities

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Legislation

  • Judicature ActSection 5
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Land ActSection 152
  • Constitution of KenyaArticles 157 and 245

Cases cited (13)

  • Giella v Cassman Brown & Company
    (1973) EA 358
  • Salome Wabwile v. Alfred Okumu Musinaka
    (2022) KEELC 1200 (KLR)
  • Julius L. Marten v. Caleb arap Rotich
    (2021) KEELC 195 (KLR)
  • Wilfred Waweru & another v Kenya Women Microfinance Limited
    (2018) eKLR
  • Kabansora Millers Ltd v Nyangena
    Civil Appeal E665 of 2022 (2025) KEHC 4754 (KLR) (Civ)
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Nguruman Limited Vs Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another
    [2005] eKLR
  • Carla Burchell v. Barry Grant Burchell
    Case No. 364 of 2005
  • Samuel M.N Mweru & Others v National Land Commission & 2 Others
    (2020) eKLR
  • Republic v Principal Secretary Ministry of Defence ex parte George Kariuki Waithaka
    (2019) eKLR
  • Teachers Service Commission v Kenya National Union of Teachers & 2 others
    (2013) eKLR
  • Gatharia K. Mutitkika v Baharini Farm Ltd
    (1985) KLR
Jurisdiction invoked
Section 5 of the Judicature Act; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Shah & another v Juma & 2 others; Chelogoi (Interested Party) (Environment and Land Case 312 of 2009) [2026] KEELC 698 (KLR)", Case Analysis (2026). Application dated 1st August 2025 (Notice of Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/698/eng@2026-02-04

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