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ELCDismissedNot stated in the judgment (application dated 28th July 2025)· [2026] KEELC 2480 (KLR)

Wathi & another v Mbithi & 2 others (Environment and Land Case E094 of 2025) [2026] KEELC 2480 (KLR)

Environment and Land Court of Kenya (inferred from subject matter; court not expressly named)
28 April 2026
NMN.A. Matheka
1,678 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Machakos court refused to freeze dealings in disputed land, ruling the risk of an injunction outweighed the risk of waiting for a full trial.

What this practically means

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Executive summary

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The 1st and 2nd Applicants, described as lawful heirs of the late Simon Wathi Mbithi, moved the court by notice of motion dated 28th July 2025 under Article 40 of the Constitution, Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. They sought maintenance of status quo, a temporary injunction restraining the 1st Defendant from entering upon, alienating, disposing of, transferring or encumbering land parcel Machakos/Kiandani/576, an order suspending register dealings by the 2nd Defendant (the Land Registrar Machakos), deposit of the disputed title in court, and production of the Green Card, mutation forms and ownership history for forensic and judicial examination. The Applicants claimed the 1st Applicant had been absolute proprietor since 23rd April 2010, holding the land in trust for the 2nd Applicant and their sister, and that the 1st Defendant, through an irregular succession cause, had fraudulently procured register entries listing her late husband and the Applicants' father as joint proprietors, contrary to a 2006 ruling by Justice Onyancha. The court set out the settled Giella v Cassman Brown and Nguruman principles, together with the Mrao definition of a prima facie case and the Kogo and Amir Suleiman expositions of irreparable injury and balance of convenience. Although the application was recorded as not opposed, the court considered the 1st Defendant's assertion that the title previously held by John Kyalo Wathi was cancelled on 23rd April 2010 pursuant to Appeal Case Number 375 of 1986, and found she may have acquired title through a court order. Concluding that it had not interrogated the relevant documents and annexures, and that there was greater risk in granting the injunction than in withholding it pending trial, the court dismissed the application with costs in the cause. The substantive suit remains for hearing on its merits.

Key legal issues

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01

Whether the Applicants established a prima facie case

Holding

The court recorded the Applicants' claim of registered ownership and alleged fraudulent register entries, but did not make a definitive finding of a prima facie case, noting the 1st Defendant may have acquired title through a court order.

Reasoning

The court rehearsed the Giella and Nguruman principles and the Mrao definition of a prima facie case. It noted the Applicants' assertion of registered proprietorship since 2010 and alleged fraud, but also recorded the 1st Defendant's claim that her title derived from a court order cancelling the earlier title, leaving the matter for trial.

p. 4
02

Whether the balance of risk favoured granting or withholding the injunction

Holding

The court found a greater risk in granting the injunction than in withholding it, because it had not interrogated all the relevant documents and annexures.

Reasoning

Applying the Amir Suleiman principle of opting for the lower rather than the higher risk of injustice, the judge held that without a full chronology of the transactions and examination of the annexures, interim restraint orders would carry the greater risk of injustice; the substantive suit would decide the merits.

p. 4

Legal principles established

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  • The three Giella v Cassman Brown conditions for an interlocutory injunction are separate, sequential hurdles that the applicant must surmount
  • A prima facie case in civil matters is one showing an apparent infringement of a legal right calling for an explanation from the opposite party

Court orders

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  1. 1.The application dated 28th July 2025 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 4
  • Civil Procedure ActSection 3A
  • Land Registration Act, 2012Sections 24, 25 and 26

Cases cited (6)

  • 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
  • Amir Suleiman vs Amboseli Resort Limited
    (2004) eKLR
  • Robert Mugo wa Karanja vs Ecobank (Kenya) Limited & Another
    (2019) eKLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya, 2010; Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act

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, "Wathi & another v Mbithi & 2 others (Environment and Land Case E094 of 2025) [2026] KEELC 2480 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 28th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2480/eng@2026-04-28

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