Ngugi & 2 others (Suing on their Behalf and as the Officials of Wamagata Squatters Self Helfp Group) v Maina & 3 others (Environment and Land Case 232 of 2015) [2026] KEELC 2240 (KLR)
The bottom line
#A Nakuru court refused to stop land excavation because the group suing couldn't prove the digging was happening on their land.
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 plaintiffs'/Applicant's application meets the threshold for granting of temporary injunction.
- 2.Who should bear cost of this application?
Key legal issues
#Whether the plaintiffs established a prima facie case with probability of success for a temporary injunction
No prima facie case was established; it was not even clear who was undertaking the excavation.
The court applied Giella v Cassman Brown and Mrao Ltd v First American Bank on the definition of a prima facie case. The defendants deposed that the excavation was on Nakuru Municipality/Block 16/305, not Block 16/835 claimed by the plaintiffs, and that the parcel belonged to Geofrey Kahungu Hungi who had permits and a murram supply agreement with the area MCA. The plaintiffs did not rebut these averments, and the court could not identify who was undertaking the excavation.
Whether the application was an abuse of process / delaying tactic
The court found the application to be another attempt to delay the hearing of a suit filed in 2015, in which similar orders had been obtained on 20th November 2016 yet the suit remained unprosecuted.
The suit was filed in 2015 and remains pending. Interim orders had been granted as far back as November 2016, yet the plaintiffs had not prosecuted the main suit, even declining on 16th February 2026 to proceed with the hearing in favour of arguing the injunction application. The court agreed with the defendants that the application was a further attempt to delay the main suit and amounted to an abuse of court process.
Who should bear the costs of the application
Costs were awarded to the Defendants/Respondents as the application lacked merit.
Having dismissed the application for want of merit and as an abuse of the court's process, the court exercised its discretion on costs against the unsuccessful applicants, awarding costs to the Defendants/Respondents in accordance with the general rule that costs follow the event.
Legal principles established
#- An applicant for an interlocutory injunction must demonstrate a prima facie case with probability of success, irreparable harm not compensable by damages, and, if in doubt, the balance of convenience tilts in his favour (Giella v Cassman Brown).
- Unrebutted sworn averments by a respondent on the state of the suit property (including that the excavation is on a different parcel) may defeat the establishment of a prima facie case.
Court orders
#- 1.The Notice of Motion dated 23rd January 2026 is dismissed.
- 2.The Plaintiffs/Applicants are directed to expedite the hearing of the main suit.
- 3.Costs of the application are awarded to the Defendants/Respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act; Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules
Relief refused
#Temporary injunction restraining the Defendant from entering upon, excavating soil, removing earth, marram, stones or any materials, constructing, fencing, selling, leasing, wasting, alienating, or in any manner interfering with Land Parcel No. Nakuru Municipality Block 16/835 pending hearing and determination of the suit
No prima facie case was established; the defendants averred the excavation is on a different parcel (Nakuru Municipality/Block 16/305) belonging to one Geofrey Kahungu Hungi with permits, and those averments were not rebutted; the application was also seen as a delaying tactic in a suit filed in 2015.
Direction that the OCS Nakuru Central Police Station assist in enforcement and compliance of the orders
Injunctive relief having been refused, the ancillary enforcement order fell away with dismissal of the application.
Costs of the application borne by the Defendant
Costs were instead awarded to the Defendants/Respondents as the application lacked merit.
Costs
The Application is dismissed with costs to the Defendants/Respondents.
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.
I find that the Plaintifis/Applicants are not deserving of the orders sought as no prima facie case has been established. It is not clear who is undertaking the excavation.
In my view these averments have not been rebutted by the Plaintifis/Applicants in any way.
I agree with the Defendants/Respondents that the application is yet another attempt to delay the hearing of the main suit.
In conclusion I find no merit in this application. The same is an abuse of the court process. The Plaintifi/Applicants are hereby directed to expedite the hearing of the main suit.
The Application is hereby dismissed with costs to the Defendants/Respondents.
Issues in the judgment
#Party inconsistency: the application seeks orders against 'the Defendant' (singular) and the replying affidavit is sworn by an official of the '1st Defendant/Respondent', yet the decretal orders and submissions refer to 'Defendants/Respondents' and 'the 1st,2nd defendants' without any 2nd defendant being formally described elsewhere.
Internal inconsistency between grounds and holding on delay: the court notes the plaintiffs obtained similar orders on 20th November 2016 but does not state what became of those orders, while simultaneously finding the fresh application an abuse of process.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngugi & 2 others (Suing on their Behalf and as the Officials of Wamagata Squatters Self Helfp Group) v Maina & 3 others (Environment and Land Case 232 of 2015) [2026] KEELC 2240 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2240/eng@2026-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.