Mussukuya v Musoi & 3 others (Environment and Planning Civil Case E019 of 2025) [2026] KEELC 2844 (KLR)
The bottom line
#A Kenyan court struck out a neighbour's injunction application because the affidavit was sworn by her daughter, who had no proven legal authority to act for her.
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 Plaintiff/Applicant has met the threshold to warrant the grant of a temporary injunction
Key legal issues
#Whether the Applicant met the threshold for a temporary injunction
The Motion was incompetent because the supporting affidavit was sworn by the Applicant's daughter who demonstrated no authority to act for the Applicant; the application was struck out before the merits could be assessed
The Motion was supported solely by an affidavit of Elizabeth Nangila Kerre, the Applicant's daughter, who is not a co-Applicant. She neither disclosed nor demonstrated the legal basis of her authority. Such authority for an individual ordinarily takes the form of a power of attorney or written mandate. The defect goes to locus standi and jurisdiction, is not curable, and invalidates the evidentiary foundation of the Motion, leaving no admissible evidence on which a prima facie case could be assessed.
Test for interlocutory injunctions and its sequential application
The court applied the Giella v Cassman Brown principles, as reinforced by Nguruman, requiring the three hurdles to be satisfied sequentially
Citing Order 40 Rule 1 of the Civil Procedure Rules and Giella v Cassman Brown, the court noted the requirements of a prima facie case with probability of success, irreparable injury, and balance of convenience where in doubt. It endorsed the Court of Appeal's position in Nguruman that these are distinct logical hurdles, each of which must be satisfied before interlocutory injunctive relief may issue. However, on the facts the application failed at the threshold for want of competent evidence.
Legal principles established
#- Authority to depone or institute proceedings on behalf of another must be expressly disclosed and proved; a familial relationship alone does not confer capacity
- Lack of capacity goes to locus standi and the court's jurisdiction, and is not a mere procedural technicality
- Questions of jurisdiction may be raised by the court suo motu at any stage
Court orders
#- 1.The Notice of Motion dated 18th November, 2025 is struck out with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 40 & 159 of the Constitution of Kenya, 2010; Sections 57 & 72 of the Physical and Land Use Planning Act, 2019; Sections 3 & 58 of the Environment Management and Coordination Act, 1999; Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act; Order 40 Rule 1 and Order 51 Rules 1 & 3 of the Civil Procedure Rules, 2010
Relief refused
#Mandatory order compelling the 2nd, 3rd and 4th Respondents to assess and ensure the 1st Respondent's compliance with relevant laws
The supporting affidavit was incompetent for want of disclosed authority, leaving the application unsupported
Temporary injunction restraining the 1st Respondent from construction and/or commercial activity on L.R. No. 1/764
No prima facie case could be assessed without admissible evidence; the Motion itself was struck out
Mandatory interlocutory order compelling removal of debris, equipment and materials from the shared entrance and common area
Application incompetent; supporting affidavit invalid
Costs
The Motion is struck out with costs (costs awarded against the Applicant)
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.
A familial relationship, without more, does not confer legal capacity to act on another’s behalf.
Where such capacity is absent, the defect is not curable by form. It implicates the competence of the proceedings and, by extension, the court’s jurisdiction to entertain the matter.
For those reasons, the court finds the Notice of Motion dated 18th November, 2025 to be incompetent. The Motion is struck out with costs.
Issues in the judgment
#Party naming inconsistency: the Applicant is referred to as 'Plaintifi/Applicant' and 'the Applicant' while the 1st Respondent is referred to variously as '1st Defendant/Respondent' and '1st Respondent', and the supporting affidavit describes the deponent as 'the daughter of the Applicant herein' though the Applicant is named in submissions as Edith Mussukuya but introduced in the affidavit context without her name initially
Chronological anomaly: the further affidavit is dated 24th February, 2026 and submissions dated 11th March 2026, yet the Motion is dated 18th November, 2025 and judgment delivered 14th May, 2026; also the Applicant's affidavit is said to be 'supported by the afidavit of Elizabeth Nangila Kerre, the daughter of the Applicant herein... and competent to swear this Afidavit' - a conclusory assertion of competence contradicted by the court's finding
Obvious typographical/scanning errors throughout (e.g. 'Plaintifi', 'afidavit', 'sufier')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mussukuya v Musoi & 3 others (Environment and Planning Civil Case E019 of 2025) [2026] KEELC 2844 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 18th November, 2025 in a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2844/eng@2026-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.