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ELCPartially AllowedELC Case (Machakos) - Notice of Motion dated 10th March 2025 (undated in judgment)

Mutisya v Peter & another (Environment and Land Case E031 of 2025) [2026] KEELC 2483 (KLR)

Environment and Land Court
28 April 2026
1,905 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's bid to stop rivals from sand harvesting failed because the court saw two competing title deeds and preferred to wait for a full trial.

What this practically means

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Executive summary

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Before the Environment and Land Court at Machakos were two applications. The first, dated 15th July 2025 and brought by the 2nd Defendant under Order 26 of the Civil Procedure Rules, sought security for costs, namely a deposit by the plaintiff of KES 10,000,000 into a joint interest earning account within thirty days, with the suit to stand dismissed in default. It was grounded on the plaintiff's unsatisfied costs decree of KES 129,750 arising from a dismissed suit against the 1st Defendant at the Chief Magistrate's Court at Mavoko (ELC No. E011 of 2024). On 11th March 2026 counsel recorded a consent allowing that application as prayed, and the court adopted the consent. The second application, by the plaintiff under Article 40 of the Constitution, sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules, sought a temporary injunction restraining the defendants from trespassing on, accessing or harvesting sand from Title No. I.R. 62284, and an order to the O.C.S Kyumbi Police Station to enforce the orders. The court set out the settled Giella v Cassman Brown trilogy as restated in Nguruman Limited v Jan Bonde Nielsen. Although the plaintiff produced a certificate of title for land at Kyumbi, the 2nd Defendant asserted registered proprietorship of the suit land under a purchase from Benjamin Musyoka, claiming possession and development for over 28 years. The court found two competing titles before it, and, not having had the opportunity to interrogate the underlying documents, held that the risk of granting the injunction outweighed the risk of refusing it. The injunction application was dismissed with costs, the suit to proceed to full trial.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff's Notice of Motion dated 10th March 2025 seeking a temporary injunction to restrain the defendants from accessing, trespassing on and harvesting sand on Title No. I.R. 62284 should be granted
  2. 2.Whether the plaintiff has established a prima facie case with probability of success
  3. 3.Whether the plaintiff would suffer irreparable injury not compensable in damages if the injunction is not granted
  4. 4.Whether the balance of convenience tilts in the plaintiff's favour

Key legal issues

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01

Prima facie case with probability of success

Holding

The applicant produced a certificate of title for LR No.355/27 but the 2nd Defendant produced a competing title deed claiming ownership of the suit land, so the plaintiff did not surmount the first hurdle

Reasoning

The plaintiff relied on a certificate of title marked LMM 1 showing registered ownership of land at Kyumbi. However, the 2nd Defendant asserted registered proprietorship through a purchase from one Benjamin Musyoka, possession for over 28 years and extensive development. The court therefore found two competing titles before it, meaning the plaintiff's right was disputed and could not be determined at the interlocutory stage without interrogating the documents and chronology.

p. 4
02

Irreparable injury and balance of convenience

Holding

Even accepting damage to land from sand harvesting, the presence of competing titles meant the court could not be satisfied that the balance of convenience favoured granting the injunction

Reasoning

The applicant alleged trespass and sand harvesting by lorries at night, supported by photographs and a police occurrence book entry. The court set out the established test that irreparable injury is one not adequately compensable in damages, and that the plaintiff must show the inconvenience of withholding the injunction outweighs that of granting it. But with two competing titles and documents uninterrogated, the court held the risk of granting was greater than refusing, pending full trial.

p. 4
03

Security for costs

Holding

The 2nd Defendant's application dated 15th July 2025 under Order 26 seeking security for costs of KES 10,000,000 was not opposed and was allowed by consent recorded on 11th March 2026

Reasoning

Counsel for the plaintiff (Mr. Odhiambo) and counsel for the defendants (Mr. Kilonzo) entered a consent allowing the security for costs application as prayed. The consent was adopted in court. The orders include deposit of KES 10,000,000 within thirty days into a joint interest earning account, with default consequences of dismissal of the suit with costs to the 2nd Defendant.

p. 2

Legal principles established

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  • In an interlocutory injunction application the applicant must sequentially establish a prima facie case, demonstrate irreparable injury, and show the balance of convenience lies in his favour
  • A prima facie case in civil cases is one where, on the material presented, the court concludes there exists a legal right apparently infringed by the opposite party so as to call for an explanation or rebuttal
  • Where the court is faced with two competing titles which it has not had the opportunity to interrogate, the safer course is to withhold a temporary injunction pending trial

Court orders

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  1. 1.By consent, the 2nd Defendant's application dated 15th July 2025 seeking security for costs was allowed as prayed, the plaintiff to deposit the value of the suit property being KES 10,000,000 within thirty (30) days of the order into a joint interest earning account, failing which the suit to be dismissed with costs to the 2nd Defendant
  2. 2.The plaintiff's application for a temporary injunction is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A & 63 of the Civil Procedure Act, CAP 21; Article 40 of the Constitution

Relief refused

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Temporary injunction restraining the defendants from accessing, entering, trespassing on or harvesting sand on Title No. I.R. 62284

Two competing titles were placed before the court and the applicant failed to establish a prima facie case; the court found the risk of granting the injunction greater than not granting it

p. 4

Order directing the O.C.S Kyumbi Police Station to enforce the injunction orders

Fell with the main injunction application which was dismissed

p. 4

Costs

The application is dismissed with costs (costs to the defendants); the 15th July 2025 application was allowed by consent with its terms as prayed.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In view of the foregoing, I find that the application is not merited and I dismiss it with costs. It is so ordered.
p. 4final orders - dismissal of injunction application
I am convinced that there is a risk in granting orders of temporary injunction than not granting them, as I wait to hear the suit on its merits.
p. 4competing titles - risk assessment at interlocutory stage
in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.
p. 3test for temporary injunction
counsel for the plaintifi Mr. Odhiambo and Counsel for the Defendants Mr, Kilonzo entered a consent for the said application to be allowed as prayed as it was not opposed. The said consent was adopted in court.
p. 2consent allowing security for costs application

Issues in the judgment

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material

The suit property is inconsistently identified within the judgment - the plaintiff's title is described as LR No.355/27 while the injunction prayers and restraint orders refer to Title No. I.R. 62284, and the security for costs refers to a suit property valued at KES 10,000,000; the relationship between the descriptions is not explained

minor

The plaintiff's Notice of Motion is described in the recitals as dated 10th March 2025 but is later described as dated 10th March 2026

minor

The case number of the suit before the Environment and Land Court is not stated in the judgment; only the earlier Mavoko Chief Magistrate's case (ELC No. E011 of 2024) is identified

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, "Mutisya v Peter & another (Environment and Land Case E031 of 2025) [2026] KEELC 2483 (KLR)", Case Analysis (2026). ELC Case (Machakos) - Notice of Motion dated 10th March 2025 (undated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2483/eng@2026-04-28

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