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ELCDismissedNotice of motion dated 21-10-2025 in an originating summons (number not stated)· [2026] KEELC 3346 (KLR)

Mutwiwa v Mutindimi (Administrator of the Estate of Mutindimu Kitemu) & another (Enviromental and Land Originating Summons E0035 of 2025) [2026] KEELC 3346 (KLR)

Environment and Land Court
3 June 2026
821 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This is a ruling on a notice of motion dated 21-10-2025 in which the Applicant sought a temporary injunction restraining the 1st Defendant from threatening to forcefully evict or removing her from L.R. No. Kakuzi/Ithanga/Gituamba Block 1/747 pending the hearing of an originating summons in which she claims ownership by adverse possession, asserting over 20 years' occupation. She said she received a notice to vacate on 30-9-2025 and that eviction would render her claim nugatory. The 1st Respondent, son of the registered owner Zedekiah Mutindimi Kitemu (deceased), opposed the motion through two replying affidavits sworn by himself and his wife Emily Mbinya Kilonzo, deposing that the Applicant has occupied the land since 2018 only with his permission, to protect it from land grabbing while he resides in Kangundo, that she is a first cousin of his wife, and that her adverse possession claim arose when he sought to sell the land in 2024. Counsel filed written submissions and framed the standard three Giella-type issues: prima facie case, irreparable loss and balance of convenience. The court found the Applicant had not established a prima facie case: her eight-paragraph affidavit and a photograph of trees were outweighed by the two affidavits asserting permissive occupation. Irreparable loss also failed, as she showed no house or crops on the land. The balance of convenience did not arise. The motion was dismissed with costs in the cause, delivered virtually at Murang'a on 3 June 2026 by M.N. Gicheru J.

Key legal issues

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01

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

Holding

No - the Applicant's evidence of 20 years' occupation was outweighed by the Respondent's two affidavits asserting permissive occupation

Reasoning

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.

02

Whether the Applicant would suffer irreparable loss if the injunction was not granted

Holding

No - the Applicant showed no house, crops or other property on the suit land

Reasoning

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.

p. 2
03

Balance of convenience

Holding

Not considered - both prior prerequisites had been disproved

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The motion dated 21-10-2025 is dismissed
  2. 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

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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, "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.