Thindiu v Misente & 4 others (Environment and Land Case E414 of 2025) [2026] KEELC 2499 (KLR)
The bottom line
#A Nairobi landowner won a court order freezing a disputed property, and the court confirmed foreign affidavits from Commonwealth countries are valid in Kenya without extra authentication.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of a replying affidavit sworn before a Notary Public in Ontario, Canada without a certificate of notarization
The affidavit is admissible; no further authentication was required because Canada is a Commonwealth country and Section 88 of the Evidence Act presumes genuineness of the seal or signature.
Section 88 of the Evidence Act provides that documents which would be admissible in English courts without proof of the seal, stamp or signature authenticating them are admissible in Kenyan courts on the same basis. Following Microsoft Corporation v Mitsumi Computer Garage Ltd and Peeraj General Trading v Mumias Sugar Company, affidavits taken in Commonwealth countries are admissible without proof of the seal or official character of the notary. The Plaintiff's objection was therefore dismissed as without merit.
Whether the Plaintiff established a prima facie case with a probability of success
Yes. On the material presented, including the share certificate, allocation documents, payment receipts and corroborating correspondence from the 2nd Defendant and public offices, the Plaintiff established a prima facie case.
Applying the Mrao Ltd definition of a prima facie case, the court noted the Plaintiff's evidence of shareholding since 1972, allocation of Plot No. C28 in 1983, payment of requisite fees, and correspondence from the 2nd Defendant and public offices recognising him as allottee. The court emphasised that ownership and the legality of the 1st Defendant's title can only be determined at full trial, but found the Plaintiff had established a prima facie case with probability of success.
Whether the Plaintiff would suffer irreparable harm not compensable by damages
Yes. The risk of further dealings with, alienation of, or ongoing development on the suit property pending trial is prejudice that may not be adequately redressed by damages.
Applying Nguruman Limited v Jan Bonde Nielsen, the court held that the injury must be actual, substantial and demonstrable and not adequately compensable by damages. Given the competing claims to the property, the risk of further dealings with the title, and evidence that developments were ongoing on the suit property, the court found the Plaintiff would suffer irreparable loss if the injunction were withheld.
Where the balance of convenience lies
The balance of convenience favours maintaining the status quo pending the hearing and determination of the suit.
The court weighed the hardship to the Applicant if the injunction were refused against the hardship to the Respondents if it were granted. On the evidence presented, the court concluded that preserving the status quo pending trial best serves both parties, completing the Giella threshold and justifying the interlocutory relief sought.
Legal principles established
#- Under Section 88 of the Evidence Act, affidavits taken in Commonwealth countries are admissible in Kenyan courts without proof of the seal, stamp, signature or official character of the person before whom they were sworn.
- At the interlocutory stage the court does not make definitive findings on contested issues of ownership or the legality of title; those can only be determined at a full trial.
- The Giella v Cassman Brown conditions govern the grant of a temporary injunction: prima facie case with probability of success, irreparable harm not compensable by damages, and, if in doubt, balance of convenience.
Court orders
#- 1.A temporary injunction restraining the 1st Defendant, whether by himself, his agents, assigns, representatives, employees or any other person acting under his authority or in collusion with the 2nd, 3rd, 4th and 5th Defendants, from disposing of, alienating, encumbering, charging, interfering with, transferring and/or in any manner dealing with all that property known as Land Reference Number Nairobi/Block 105/13704 pending hearing and determination of this suit.
- 2.Costs of the application to be borne by the 1st Defendant.
- Jurisdiction invoked
- Section 10(4) of the High Court (Organization and Administration) Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 1(a), 2 and 4(1) and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thindiu v Misente & 4 others (Environment and Land Case E414 of 2025) [2026] KEELC 2499 (KLR)", Case Analysis (2026). Notice of Motion dated 8th August 2025 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2499/eng@2026-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.