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ELCDismissedNot stated in judgment· [2026] KEELC 1459 (KLR)

Mbithi & 16 others v Paul Mboko Mutua, John Bankosky Kitonga, Arthur Kitonga (Sued as the Registered Trustees of the Redeemed Gospel Church Inc) & 5 others (Environment and Land Case E007 of 2023) [2026] KEELC 1459 (KLR)

Environment and Land Court
12 March 2026
EOE. O. Obaga
1,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to freeze Emali plots because the applicants weren't in possession and any loss could be paid as damages.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Obaga J) determined a notice of motion dated 13th October 2023 in which the Plaintiffs/Applicants, said to litigate under Katese Welfare Society, sought a temporary injunction restraining the 1st to 3rd Defendants/Respondents from constructing on, selling, transferring or dealing with Emali Township Block 126/4, 126/3, 126/2 and 126/1 pending the hearing of the main suit. The Applicants claimed they were allotted various plots by the defunct Masaku County Council between 1990 and 1999, took possession, and that the Respondents later colluded to have the land registered as Emali Township Block 1/126, subdivided and evicted them. The Respondents opposed, asserting a 1994 government allotment to the 1st Respondent, subsequent subdivision and sale to third parties, and that the Applicants had obtained an injunction in a parallel pending suit, Makindu SPM ELC Case No. 52 of 2021, making this suit an abuse of process. The court framed a single issue: whether the Applicants had established a prima facie case warranting an injunction. Applying Giella v Cassman Brown, the court held the Applicants, being out of possession and facing an injury compensable in damages, had demonstrated no prima facie case, and noted their existing injunction in the Makindu suit. The application was dismissed with costs to the Respondents. The substantive claims in the main suit remain pending.

Key legal issues

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01

Whether the Applicants established a prima facie case to warrant a temporary injunction

Holding

The application was dismissed. The Applicants are not in possession of the suit property; the Respondents were allotted the land in 1994 and hold title which they have subdivided and partly sold to third parties; any injury is compensable in damages; and the Applicants already enjoy an injunction in a parallel suit in the Makindu SPM court.

Reasoning

Applying Giella v Cassman Brown, the court found the Applicants failed at the first hurdle: on the material placed before it, no prima facie case was demonstrated. The Applicants admitted allotment in 1999, five years after the Respondents' 1994 allotment, and were out of possession. The court also noted the existing injunction in Makindu MCEL Case No. 52 of 2021, questioned what further orders were sought, and held damages would suffice, declining to consider the balance of convenience.

p. 4

Legal principles established

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  • The principles for grant of a temporary injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience if in doubt
  • A party out of possession whose alleged injury is compensable in damages cannot obtain a temporary injunction, particularly where it already holds an injunction in a parallel suit

Court orders

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  1. 1.The Applicants' notice of motion dated 13th October 2023 seeking a temporary injunction was dismissed with costs to the Respondents
Jurisdiction invoked
Not expressly stated; the court exercised its original civil jurisdiction over land disputes (Environment and Land Court)

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, "Mbithi & 16 others v Paul Mboko Mutua, John Bankosky Kitonga, Arthur Kitonga (Sued as the Registered Trustees of the Redeemed Gospel Church Inc) & 5 others (Environment and Land Case E007 of 2023) [2026] KEELC 1459 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1459/eng@2026-03-12

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