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ELCPartially AllowedNotice of Motion dated 8th August 2025 (suit number not stated in the judgment)· [2026] KEELC 2499 (KLR)

Thindiu v Misente & 4 others (Environment and Land Case E414 of 2025) [2026] KEELC 2499 (KLR)

Environment and Land Court of Kenya
23 April 2026
4,646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By a Notice of Motion dated 8th August 2025, the Plaintiff sought a temporary injunction restraining the 1st Defendant from disposing of, alienating, encumbering or dealing with L.R. Nairobi/Block 105/13704 pending the hearing of the suit. The Plaintiff claimed he purchased a share in the 2nd Defendant in 1972, was allocated Plot No. C28 (now the suit property) in 1983, paid all requisite fees, and only discovered in November 2023 that a Certificate of Lease had been issued to the 1st Defendant on 28th March 2019. The 1st Defendant countered that he purchased the property in May 2016 from the owners of Plot No. V. 15307 for Kshs. 1,000,000/= after due diligence verified by the 2nd Defendant, took possession, developed it, and is a bona fide purchaser for value without notice. The Plaintiff also objected to the 1st Defendant's replying affidavit on the ground that it was sworn before a Notary Public in Ontario, Canada without authentication. The court framed two issues: admissibility of the replying affidavit and whether the Plaintiff met the injunction threshold. Relying on Section 88 of the Evidence Act and Microsoft Corporation v Mitsumi Computer Garage Ltd, the court held that affidavits taken in Commonwealth countries are admissible without further authentication and dismissed the objection. Applying Giella v Cassman Brown and the Mrao Ltd definition of a prima facie case, the court found the Plaintiff had established a prima facie case with probability of success, that the risk of further dealings with and development of the property was not adequately compensable in damages, and that the balance of convenience favoured maintaining the status quo. The application was allowed with costs to the Plaintiff, a temporary injunction issuing pending hearing and determination of the suit.

Key legal issues

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01

Admissibility of a replying affidavit sworn before a Notary Public in Ontario, Canada without a certificate of notarization

Holding

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.

Reasoning

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.

p. 7
02

Whether the Plaintiff established a prima facie case with a probability of success

Holding

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.

Reasoning

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.

p. 8
03

Whether the Plaintiff would suffer irreparable harm not compensable by damages

Holding

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.

Reasoning

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.

p. 9
04

Where the balance of convenience lies

Holding

The balance of convenience favours maintaining the status quo pending the hearing and determination of the suit.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 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. 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

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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, "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.