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ELCDismissedELCL(OS) NO. E021 OF 2025

Mwale v Joel (Suing as an administrator of the Estate of Sarah Mbigula Migasa alias Sarah Migasa - Deceased) (Land Case (Originating Summons) E021 of 2025) [2026] KEELC 733 (KLR)

Environment and Land Court
12 February 2026
610 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a widow's bid to stop her husband's exhumation because she filed her injunction in the wrong case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Vihiga (E. Asati, J) determined a Notice of Motion dated 25th November 2025 in which the applicant, Rosemary Nekesa Mwale, sought a temporary injunction to restrain the respondent from exhuming the remains of her late husband, Charles Mwale, from the suit property known as KAKAMEGA/KEDOLI/179, pending the hearing of her suit. The application was brought under Order 40 Rules 1, 2 & 3 and Order 51 Rule 1 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act, and sections 7 and 38 of the Limitation of Actions Act. The applicant claimed continuous, open, exclusive, uninterrupted and hostile possession of the suit land for 48 years since 1977, and contended that the threatened exhumation was irreversible and contrary to law, dignity and custom. The application was supported by her affidavit sworn on 25th November 2025 and was canvassed by way of written submissions filed by both firms of advocates. The court applied the Giella v Casman Brown principles, observing that an applicant for a temporary injunction must demonstrate a prima facie case with a probability of success. However, it noted from the Supporting Affidavit that the exhumation the applicant sought to restrain was the subject of an application in Vihiga ELC Appeal No. E024 of 2024, meaning the applicant was effectively seeking an injunction in this matter to stop an action in another court matter, with no explanation why the order was not sought in that appeal. The court found the threshold unmet and the application misconceived, dismissed it with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has met the threshold for grant of a temporary injunction under the Giella principles, including a prima facie case with a probability of success
  2. 2.Whether the application, being aimed at stopping proceedings in another matter (Vihiga ELC Appeal No. E024 of 2024), is properly before this court

Key legal issues

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01

Whether the applicant established a prima facie case with a probability of success warranting a temporary injunction

Holding

No; the applicant failed to meet the Giella threshold

Reasoning

The court noted that under Order 40 Rule 1 a temporary injunction preserves the subject matter from waste, alienation or destruction. Although the applicant claimed 48 years of adverse possession since 1977, the court found the totality of the material insufficient to establish a prima facie case. The suit land was already subject to active litigation, and the threatened exhumation was itself the subject of an application in Vihiga ELC Appeal No. E024 of 2024.

p. 3
02

Whether an injunction can properly be sought in this suit to restrain an action in another pending matter

Holding

No; such an application is misconceived since no explanation was given why the order was not sought in the other matter

Reasoning

The applicant's own Supporting Affidavit deposed that the exhumation she sought to restrain was the subject of an application in Vihiga ELC Appeal No. E024 of 2024. The court held that she was effectively seeking an injunction in this matter to stop an action in another court matter, and that no explanation had been given for not pursuing the order in the appeal where the threat arose.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must demonstrate a prima facie case with a probability of success, per Giella v Casman Brown
  • A party seeking to restrain an action in another court's matter should seek that relief in that matter, and an application bypassing it is misconceived

Court orders

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  1. 1.The Notice of Motion dated 25th November 2025 is dismissed
  2. 2.Costs of the application to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 40 Rules 1, 2 & 3, Order 51 Rule 1 Civil Procedure Rules; sections 1A, 1B, 3A Civil Procedure Act; sections 7 and 38 Limitation of Actions Act

Relief refused

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Temporary injunction to restrain the respondent from exhuming the remains of the applicant's late husband from parcel KAKAMEGA/KEDOLI/179 pending hearing of the suit

The applicant failed to meet the Giella threshold; the exhumation she sought to restrain is the subject of an application in a different matter and the application is misconceived

p. 3

Costs

Costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Under Order 40 Rule 1 Civil Procedure Rules pursuant to which the application was brought, an order of temporary injunction is granted to stop the subject matter of the suit from being wasted, alienated or destroyed pending hearing of the suit
p. 3Purpose of temporary injunction under Order 40
I find that the applicant has not met the threshold for grant of an order of temporary injunction as set in the case of Giella -vs Casman brown (1973) EA 358
p. 3Failure to establish prima facie case
to the extent that the application is intended to challenge an existing application in a different matter file, the application is misconceived
p. 3Misconceived application to restrain proceedings in another matter
The application is dismissed. Costs to the respondent.
p. 4Final orders and costs

Issues in the judgment

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minor

The respondent's name is not given anywhere in the judgment; the respondent is referred to only by role

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, "Mwale v Joel (Suing as an administrator of the Estate of Sarah Mbigula Migasa alias Sarah Migasa - Deceased) (Land Case (Originating Summons) E021 of 2025) [2026] KEELC 733 (KLR)", Case Analysis (2026). ELCL(OS) NO. E021 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/733/eng@2026-02-12

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