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ELCDismissedNot stated in judgment (notice of motion dated 5-12-2025 in a pending appeal)· [2026] KEELC 3212 (KLR)

Cleland (Suing in her capacity as the Executor/Administrator of the Estate of Njuguna Muchai - Deceased) v Muchai (Environment and Land Appeal E039 of 2025) [2026] KEELC 3212 (KLR)

Environment and Land Court
19 May 2026
775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (M.N. Gicheru, J) determines a notice of motion dated 5-12-2025 by the Appellant in a pending appeal concerning parcel Loc.2/Kinyona/2012. Invoking Orders 40 Rule 1 and 51 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Section 13(7) of the Environment and Land Court Act, the Appellant sought an interim injunction restraining the Respondent, her agents and any persons claiming through her, from alienating or converting the suit land pending the hearing and determination of the appeal, plus costs. The application was grounded on allegations that the Respondent, the registered owner, acquired the land through a corrupt scheme and was interfering with it, and that the Appellant would suffer irreparable loss. The Respondent opposed the motion through a replying affidavit, asserting she had purchased the land from the deceased for Kshs.200,000/-, that no fraud was proved in the lower court, and that the Appellant, who lives in the United Kingdom, could not have sworn the supporting affidavit at Murang'a; a further motion dated 18-3-2026 sought the expungement of that affidavit. The court framed four issues. On the first, whether a prima facie case was established, it declined to make findings that could prejudice the unh­eard appeal. On irreparable loss, it held the Appellant, being neither registered owner nor occupier and identifying nothing of hers at risk, had not proved loss not compensable by damages. The balance of convenience favoured the Respondent, an established occupier. On the affidavit challenge, the Respondent bore the burden of proof and tendered no evidence. The court dismissed the motion with costs in the cause.

Key legal issues

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01

Prima facie case with a probability of success

Holding

The court declined to make any finding because the appeal is yet to be heard and a finding could prejudice it

Reasoning

The court held that determining whether the Appellant had established a prima facie case would require assessing the merits of the underlying appeal, which had not been heard. Making such a finding at the interlocutory stage risked prejudging the appeal. The court therefore exercised restraint and left the issue open for determination at the full hearing.

p. 2
02

Irreparable loss not compensable by damages

Holding

Not established; the Appellant is neither the registered owner nor in occupation and identified nothing of hers on the land at risk

Reasoning

The court applied the second Giella-type limb of the interim injunction test. The Appellant was neither registered owner nor occupier of the suit land and did not identify any interest or property of hers in danger of alienation. Any loss she might suffer could therefore be adequately compensated by an award of damages, so no injunction could issue.

p. 2
03

Balance of convenience

Holding

It tilts in favour of the Respondent, who is in occupation and whose occupation is not recent

Reasoning

The court found that the Respondent is the registered owner in occupation of the suit land, and that her occupation is of long standing rather than recent. Preserving the status quo of occupation favoured maintaining the Respondent's position rather than restraining her, so the balance of convenience did not support an injunction in the Appellant's favour.

p. 2
04

Alleged improper commissioning of the supporting affidavit at Murang'a while the deponent was abroad

Holding

The allegation fails for want of proof; the burden lay on the Respondent alleging it

Reasoning

The Respondent alleged the Appellant, who lives in the United Kingdom, could not have sworn the affidavit at Murang'a on 5-12-2025 and sought its expungement via a motion dated 18-3-2026. The court held the Respondent, as the party making the allegation, bore the burden of proving the Appellant was absent on the material date. She tendered no evidence, so the allegation failed.

p. 2

Legal principles established

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  • A party alleging that an affidavit was falsely commissioned bears the burden of proving that the deponent was not present at the place of commissioning on the material date
  • Irreparable loss for purposes of an interim injunction is not established by a party who is neither the registered owner nor in occupation of the suit land

Court orders

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  1. 1.Dismissal of the notice of motion dated 5-12-2025 seeking an interim injunction restraining the Respondent from alienating or converting parcel Loc.2/Kinyona/2012 pending appeal
  2. 2.Costs in the cause
Jurisdiction invoked
Environment and Land Court Act No. 19 of 2011, Section 13(7); Civil Procedure Act and Civil Procedure Rules (Orders 40 Rule 1 and 51; Sections 1A, 1B, 3A and 63(e))

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, "Cleland (Suing in her capacity as the Executor/Administrator of the Estate of Njuguna Muchai - Deceased) v Muchai (Environment and Land Appeal E039 of 2025) [2026] KEELC 3212 (KLR)", Case Analysis (2026). Not stated in judgment (notice of motion dated 5-12-2025 in a pending appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3212/eng@2026-05-19

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