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ELCPartially AllowedNotice of motion dated 4-11-2025 (suit number not stated in judgment)· [2026] KEELC 1989 (KLR)
Kimotho v Kinyanjui (Sued in Her Capacity as the Administrator of the Estate of the Late Titus Kinyanjui Waithaka) & another (Environment and Land Case E064 of 2025) [2026] KEELC 1989 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#A Kenyan land court allowed a woman to stay on family land she occupies while her claim of an unregistered trust is heard.
What this practically means
#Executive summary
#This is a ruling by M.N. Gicheru J of the Environment and Land Court at Murang'a on a notice of motion dated 4-11-2025 brought by the Plaintiff under Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, and Articles 50(1) and 159(2)(d) of the Constitution. The Plaintiff sought an interlocutory injunction/status quo restraining the Respondents from dealing with or interfering with L.R. No. Loc.6/Gikarangu/4052 pending the hearing and determination of her suit. She claimed a beneficial interest in part of the land - comprising a residential dwelling and adjoining farmland - under an unregistered trust allegedly created by her late father through a 2006 handwritten note and reaffirmed verbally in family meetings in 2008 and 2012, the land being registered in the name of her late brother Titus Kinyanjui Waithaka, father of the 1st Defendant. She noted a judgment in Kigumo Succession Cause No. 222 of 2018 declaring the parcel part of the deceased's estate, under appeal in E023 of 2025, and maintained she had occupied the land for nearly ten years. The 1st Defendant opposed, asserting the land belongs to her father's estate of which she is sole administrator, that it was gifted to Titus by Julius Waithaka, that no trust arose, and that the Plaintiff's occupation began only in 2018. Both counsel agreed the Giella v Cassman Brown principles applied. The court held it premature to assess a prima facie case since pleadings were not closed, and resolved the application on the balance of convenience: as the Plaintiff's occupation was undisputed, fairness and Article 50(1) required she remain in occupation pending full hearing. The motion was allowed in terms of prayer 4, with costs in the cause.
Key legal issues
#01
Whether an interlocutory injunction/status quo order should issue restraining interference with suit land claimed under an unregistered trust
Holding
The motion was allowed in terms of prayer 4 on the balance of convenience, since the Plaintiff was in occupation of the land and evicting her would condemn her unheard before her trust claim was determined.
Reasoning
Both parties agreed the Giella v Cassman Brown principles applied. The court found it premature to assess a prima facie case since pleadings were not closed, leaving the balance of convenience as the decisive ground. It was not disputed that the Plaintiff occupied the land, and fairness dictated she remain in occupation pending full hearing of her trust claim. Article 50(1) supported hearing her before any order to vacate.
p. 2
Legal principles established
#- At the interlocutory stage, where pleadings are not closed and it is premature to assess a prima facie case, the court may determine an interlocutory injunction application on the balance of convenience.
Court orders
#- 1.An order of injunction/status quo restraining the Respondents from any dealing or interference with L.R. No. Loc.6/Gikarangu/4052 pending the hearing and final determination of the suit
- 2.Costs in the cause
- Jurisdiction invoked
- Orders 40 rule 1, 51 rule 1 of the Civil Procedure Rules 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Articles 50(1) and 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimotho v Kinyanjui (Sued in Her Capacity as the Administrator of the Estate of the Late Titus Kinyanjui Waithaka) & another (Environment and Land Case E064 of 2025) [2026] KEELC 1989 (KLR)", Case Analysis (2026). Notice of motion dated 4-11-2025 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1989/eng@2026-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.