DGM (Suing on Her Own Behalf and on Behalf of SM - Minor) v YMM & another (Environment and Land Appeal E005 of 2025) [2026] KEELC 803 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a woman's bid to block a Kshs 3.5 million land sale, ruling she failed to prove her claimed family trust over the property.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is fatally defective for want of leave under Order 43 rule 2 of the Civil Procedure Rules
- 2.Whether the application dated 29/10/2024 met the criteria for granting an interlocutory order in the nature of an injunction or an inhibition
Key legal issues
#Whether the appeal was fatally defective for want of leave under Order 43 rule 2
The appeal was competent because Order 43 rule 1(u) grants an automatic right of appeal against orders made under Order 40 rules 1, 2, 3, 7 and 11 (temporary injunction); leave was therefore not required
The impugned ruling disposed of a motion invoking Order 40 rules 1 and 2 (injunction and inhibition). The court examined Order 43 in its entirety and found rule 1(u) confers an automatic right of appeal against such orders. The respondents' contention that leave was required under Order 43 rule 2 was therefore misplaced.
Whether the appellant demonstrated a prima facie case of customary trust
No. The appellant did not tender evidence of a marriage to the 1st respondent or occupation of the suit land, did not explain why the alleged trust was not registered during the 2023 succession transmission, and the register showed prior owners held and transferred the land absolutely
Applying the Kiebia v M'Lithari elements of customary trust, the appellant was required to tender prima facie evidence of at least one element. Her alleged matrimonial union was contested and unsupported; the land had been transmitted to the 1st respondent absolutely through succession in 2023; and the encumbrances section showed the grandfather charged and transferred the land as absolute proprietor. The claimed automatic trust arising from ancestral origin failed.
Whether the appellant would suffer irreparable injury absent the interlocutory orders
No. The 1st respondent still owned parcel Nyaki/Kithoka/74XX measuring 0.72 hectares against which the appellant and the minor could lay their claims, so any injury was compensable
The court held that the 1st respondent's ownership of an alternative parcel was not an extraneous consideration, since the appellant's own case was that land devolving to the 1st respondent was held in trust for his family. The existence of that land showed the appellant and minor were not exposed to irreparable injury.
Where the balance of convenience lay
In favour of the 2nd respondent, a bona fide purchaser who had paid the full purchase price, taken possession and developed the land for 11 months
By the time the appellant moved the lower court, the suit land had been sold and conveyed to the 2nd respondent, who had paid Kshs 3,500,000 in full, taken possession, procured a loan and was constructing. She stood to lose immensely if the injunctive orders were issued, so the balance of convenience tilted in her favour.
Legal principles established
#- An appeal against orders made under Order 40 rules 1, 2, 3, 7 and 11 of the Civil Procedure Rules lies as of right under Order 43 rule 1(u); no leave is required
- The criteria for granting an inhibition is largely the same as that for granting an ordinary interlocutory injunction, per Giella v Cassman Brown
- At the interlocutory stage, the court should refrain from making conclusive or definitive pronouncements on the key issues in the dispute
- Where land devolved absolutely through succession without a trust noted on transmission, a claimant must explain at the interlocutory stage why the trust was not registered
Court orders
#- 1.The appeal is rejected and dismissed for lack of merit
- 2.The ruling of the lower court dismissing the application dated 29/10/2024 stands
- 3.Parties shall bear their respective costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Meru (Environment and Land)
- Meru CMC E & L Case No E099 of 2024
- Jurisdiction invoked
- First appellate jurisdiction under Section 75 of the Civil Procedure Act and Order 43 rule 1(u) of the Civil Procedure Rules
Relief refused
#Setting aside of the impugned ruling dated 18/12/2024
The application dated 29/10/2024 did not meet the criteria for an interlocutory injunction or inhibition; the appellant failed to demonstrate a prima facie case of customary trust, irreparable injury or balance of convenience in her favour
Referal of the suit to a magistrate other than Hon J. Njoroge
Not granted as the appeal failed
Costs
Parties shall bear their respective costs of the appeal (each party to bear their own costs, because of the involvement of the minor).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, for the above reasons, this appeal is rejected and dismissed for lack of merit. Parties shall bear their respective costs of the appeal.
rule 1 sub rule (u) granted an automatic right of appeal against orders made in exercise of jurisdiction under Order 40 rules 1, 2, 3, 7 and 11 (temporary injunction)
the appellant failed to demonstrate a prima facie case of a trust
the balance of convenience tilted in her favour as an innocent purchaser for value who stood to lose immensely if the injunctive orders were issued
Because of the involvement of the minor, parties will bear their respective` costs of the appeal.
Issues in the judgment
#Typographical error in the costs passage ('respective`' with a stray backtick)
The judgment describes the prior owners' parcels inconsistently (the origin parcel is called Nyaki/Kithoka/3XX and also Nyaki/Kithoka/17XX in the narration of subdivisions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DGM (Suing on Her Own Behalf and on Behalf of SM - Minor) v YMM & another (Environment and Land Appeal E005 of 2025) [2026] KEELC 803 (KLR)", Case Analysis (2026). Meru ELC Appeal (from Meru CMC E&L Case No E099 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/803/eng@2026-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.