Mutwiwa v Mutindimi (Administrator of the Estate of Mutindimu Kitemu) & another (Enviromental and Land Originating Summons E0035 of 2025) [2026] KEELC 3346 (KLR)
The bottom line
#A Kenyan court refused to protect a woman claiming 20 years on land because the owner's sworn evidence that she was there with permission was stronger.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case with a probability of success
No - the Applicant's evidence of 20 years' occupation was outweighed by the Respondent's two affidavits asserting permissive occupation
The Applicant relied only on an eight-paragraph affidavit and a photograph of trees to prove over 20 years' occupation. The Respondent deposed that the trees were on a neighbour's land and that the Applicant occupied since 2018 with permission, to protect the land from grabbing. No supplementary affidavit countered this; the Respondent's depositions heavily outweighed the Applicant's.
Whether the Applicant would suffer irreparable loss if the injunction was not granted
No - the Applicant showed no house, crops or other property on the suit land
Having failed the prima facie case test, the court also found no irreparable loss. The Applicant had demonstrated no property on the land; without a house or crops she had nothing to lose if evicted, so damages could not be said to be inadequate and the second limb failed.
Balance of convenience
Not considered - both prior prerequisites had been disproved
The court held that the balance of convenience is only examined where the first two prerequisites have not been proved or disproved. Since the Applicant's prima facie case and irreparable loss had both been disproved by the Respondent's affidavits, the third limb did not arise for determination.
Legal principles established
#- A party seeking a temporary injunction must establish a prima facie case with a probability of success and irreparable loss; the balance of convenience is only considered if the first two prerequisites are not disproved
Court orders
#- 1.The motion dated 21-10-2025 is dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 40 rules 2 and 10(2) and Order 51 rules 1-5 of the Civil Procedure Rules, Article 129 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutwiwa v Mutindimi (Administrator of the Estate of Mutindimu Kitemu) & another (Enviromental and Land Originating Summons E0035 of 2025) [2026] KEELC 3346 (KLR)", Case Analysis (2026). Notice of motion dated 21-10-2025 in an originating summons (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3346/eng@2026-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.