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ELCDismissedNot stated in the judgment· [2026] KEELC 1317 (KLR)

Hantoosh v Bafundi & 6 others (Environment and Land Case E111 of 2025) [2026] KEELC 1317 (KLR)

Environment and Land Court of Kenya
5 March 2026
YAY. M. Angima
1,380 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, by notice of motion dated 24.10.2025, sought a temporary injunction restraining the defendants from utilizing or dealing with Plot No. Mombasa/Block 1517/XVII pending the hearing and determination of the suit. He alleged that one Said Swallem Gethan, registered proprietor of Plot No. Mombasa/Block 1098, donated a portion of his plot to residents of Floringi, Kilifi as a parking area, which was registered in the name of the Municipal Council of Mombasa as custodian, and that the land was fraudulently transferred to the 3rd and 4th defendants after the 1st and 2nd defendants commenced construction on 12.10.2025. The 1st defendant filed grounds of opposition contending that the plaintiff had no enforceable interest and that fraud was unproven. The 2nd defendant, in a replying affidavit sworn by Faith Nafula, denied ownership, occupation or control of the property. The court framed two issues: whether a prima facie case had been demonstrated and costs. Applying Giella v Cassman Brown and Mrao v First American Bank, and citing Nguruman Limited v Jan Bonde Nielsen, the court found no evidence supporting the plaintiff's claim of a donated parking area or any legal or equitable interest in the suit property, and held that the plaintiff failed to demonstrate a prima facie case with a probability of success. Without a prima facie case, irreparable injury and balance of convenience fell away. On costs, the court applied the proviso to Section 27 of the Civil Procedure Act, awarding costs to the 1st and 2nd defendants as the only defendants who defended the application. The notice of motion dated 24.10.2025 was dismissed with costs to the 1st and 2nd defendants.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

The plaintiff failed to establish a prima facie case; no evidence supported the claim of a donated parking area or any legal or equitable interest in the suit property.

Reasoning

The plaintiff alleged that Said Swallem Gethan donated a portion of Plot No. Mombasa/Block 1098 as a parking area, registered in the name of the Municipal Council of Mombasa as custodian. The court found no evidence attached to the application supporting these allegations and no demonstration of any legal or equitable interest crystallizing into a right protectable by an interlocutory injunction pending trial.

p. 3
02

Costs of the application

Holding

Costs awarded to the 1st and 2nd defendants as the only defendants who defended the application, costs following the event under the proviso to Section 27 of the Civil Procedure Act.

Reasoning

The court applied the general rule that costs follow the event. Although Giella v Cassman Brown directs costs to be in the cause where an injunction is granted, the application was dismissed, so costs should be awarded against the applicant and in favour of the 1st and 2nd defendants, who were the only defendants that defended the application.

p. 3

Legal principles established

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  • Without establishing a prima facie case with a probability of success, the court will not proceed to consider irreparable injury or balance of convenience, and the application must fail.
  • A prima facie case in civil cases requires more than an arguable case; the evidence must show an infringement of a right and probability of success at trial.

Court orders

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  1. 1.The notice of motion dated 24.10.2025 is hereby dismissed.
  2. 2.Costs of the application are awarded to the 1st and 2nd defendants.

Authorities

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Legislation

  • Civil Procedure ActSection 27 (proviso)

Cases cited (3)

  • Giella v Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] KECA 606 (KLR)
Jurisdiction invoked
Inherent jurisdiction over interlocutory applications in a pending suit; Civil Procedure Act (Cap 21)

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, "Hantoosh v Bafundi & 6 others (Environment and Land Case E111 of 2025) [2026] KEELC 1317 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1317/eng@2026-03-05

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