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ELCPartially Allowed· [2026] KEELC 1031 (KLR)

Ndiba (Suing as the Administrator of the Estate of the Late Samuel Ndiba Kihara) v Ndiba & 18 others (Environment and Land Case E005 of 2024) [2026] KEELC 1031 (KLR)

Environment and Land Court
25 February 2026
NMN.A. Matheka
3,076 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Machakos court froze dealings in disputed Machakos land but refused to cancel any titles yet, saving that decision for a full trial.

What this practically means

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Executive summary

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This was an interlocutory application dated 8th November 2024, brought by the Plaintiff, the administrator of the estate of the late Samuel Ndiba Kihara, under Order 40 of the Civil Procedure Rules and the Land Registration Act. The Plaintiff sought temporary injunctions restraining the 18 defendants from subdividing, selling, advertising, charging, leasing or dealing with Mavoko Town Block 3/89997 (formerly Blocks 3/31848 and 31849, approximately 3 acres in Machakos County), an order confirming that the amalgamated block was created on 30th April 2021, a mandatory order compelling the 18th Defendant (Land Registrar) to cancel titles 91661-91682, and a permanent injunction. The Plaintiff averred that the deceased had amalgamated the two original parcels into Block 3/89997, died intestate on 21st June 2021, and that the 1st Defendant thereafter illegally surrendered the mother title and caused subdivision and sale of 24 plots to the other defendants, pretending to be the sole beneficiary. The 2nd to 17th Defendants claimed to be bona fide purchasers for value of Kshs. 7,500,000 and denied that the Plaintiff had met the injunction criteria. Applying the Giella vs Cassman Brown principles as restated in Nguruman Limited, the court found the application merited in part. It declined the prayers for permanent injunction, cancellation of titles and confirmation of non-existence of parcels, holding such final and mandatory relief premature at the interlocutory stage. The court ordered that the status quo be maintained pending the hearing and determination of the suit, with costs in the cause.

Key legal issues

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01

Whether the Giella vs Cassman Brown principles were satisfied

Holding

The court found the application merited in part, satisfied that the risk of not granting interim relief outweighed that of granting it, but confined itself to maintaining the status quo

Reasoning

The court applied the settled triple test of prima facie case, irreparable injury and balance of convenience. On the material presented, including the alleged illegal subdivision and sale of a deceased's estate by a non-registered person, the court was convinced there was greater risk in withholding interim protection. However, it declined final relief because the disputed documents and chronology had not been interrogated at the interlocutory stage.

p. 6
02

Whether permanent and mandatory injunctions and cancellation of titles could issue at the interlocutory stage

Holding

No - such final relief requires a full hearing with evidence tendered and facts established

Reasoning

The court distinguished between interim protective orders and permanent/mandatory injunctions. A permanent injunction fully determines the parties' rights and is a decree of the court granted on the merits. Mandatory injunctions are granted at interlocutory stage only in the clearest of cases and only to restore status quo, not to create a new state of things. The prayers for cancellation of titles and permanent injunction therefore awaited trial.

p. 6

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury, and the balance of convenience
  • A permanent injunction is granted only after full hearing on the merits
  • Mandatory injunctions are granted at the interlocutory stage only in rare, clear-cut cases to restore, not establish, a state of things

Court orders

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  1. 1.Status quo to be maintained pending the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51(1); Order 40 Rules 1(a)(b), 2(1)(2)
  • Civil Procedure Act Cap 21Sections 3A, 1A and 1B
  • Land Registration Act 2012Sections 24(a)(b), 25(1)(a)(b), 26(1)(a)(b)(2)

Cases cited (10)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd
    (2003) EKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    (2018) eKLR
  • Paul Gitonga Wanjau vs Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR
  • Amir Suleiman vs Amboseli Resort Limited
    (2004) eKLR
  • Robert Mugo wa Karanja vs Ecobank (Kenya) Limited & Another
    (2019) eKLR
  • Kenya Power & Lighting Co. Limited vs Sheriff Molana Habib
    (2018) eKLR
  • Lucy Wangui Gachara vs Minudi Okemba Lore
    (2015) eKLR
  • Bharat Petroleum Corp Ltd v. Haro Chand Sachdeva
    AIR 2003
Jurisdiction invoked
Sections 3A and 1B of the Civil Procedure Act Cap 21 and Order 40 Rules 1(a), (b), 2(1) and (2) of the Civil Procedure Rules, and Sections 24, 25 and 26 of the Land Registration Act 2012

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, "Ndiba (Suing as the Administrator of the Estate of the Late Samuel Ndiba Kihara) v Ndiba & 18 others (Environment and Land Case E005 of 2024) [2026] KEELC 1031 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1031/eng@2026-02-25

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