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)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Prima facie case with a probability of success
The court declined to make any finding because the appeal is yet to be heard and a finding could prejudice it
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.
Irreparable loss not compensable by damages
Not established; the Appellant is neither the registered owner nor in occupation and identified nothing of hers on the land at risk
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.
Balance of convenience
It tilts in favour of the Respondent, who is in occupation and whose occupation is not recent
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.
Alleged improper commissioning of the supporting affidavit at Murang'a while the deponent was abroad
The allegation fails for want of proof; the burden lay on the Respondent alleging it
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.