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ELCDismissedApplication dated 15th November 2024 (suit in respect of L.R No. 209/2412; part of ELC proceedings)· [2026] KEELC 4811 (KLR)

Ndungi (Suing as the representative of the Estate of Samuel Gichuru) v Kimondo & 31 others (Environment and Land Case E457 of 2024) [2026] KEELC 4811 (KLR)

Environment and Land Court
23 July 2026
3,687 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a landlord cannot evict tenants through an urgent application before the full case is heard, because the tenants were paying rent with valid tenancies.

What this practically means

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Executive summary

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The Applicant, Joan Njoki Ndungi, administratrix of the Estate of James Samuel Gichuru (deceased), sought an eviction order, an injunction, assessment of general damages for trespass, and police assistance to evict the Respondents from Part B of L.R No. 209/2412, comprising specified stalls on the ground floor, first floor and rooftop. Her claim followed a ruling of 2nd May 2023 in ELC No. 322 of 2018 directing partition of the property between the estates of James Samuel Gichuru and Gathumbi Komu, with Part B allocated to her estate. She contended that after the Business Premises Rent Tribunal dismissed a reference by a previous occupant on 17th October 2024, the Respondents became trespassers. The 4th Respondent (Francis Babu) and 10th Respondent (Cyrus Mulwa Kalendu) denied trespass, asserting long-standing tenancies, payment of rent into bank accounts designated by the Applicant, and absence of any notice terminating their tenancies. The Court framed five issues and held that eviction is a substantive and precipitate order grantable only after trial, citing The Headmaster Kiembeni Primary School v Baptist Church and Julius L. Marten v Caleb Arap Rotich. On the Giella v Cassman Brown principles, the Court found no prima facie case, no irreparable harm (rental loss being quantifiable in damages), and the balance of convenience favouring the status quo. General damages for trespass could not be assessed while liability remained contested. The application dated 15th November 2024 was dismissed with costs to the 4th and 10th Respondents.

Key legal issues

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01

Whether eviction orders can issue at the interlocutory stage

Holding

No - eviction is substantive relief reserved for the main suit

Reasoning

The Court found that eviction orders have far-reaching implications and entail forceful removal from land, requiring a full hearing on the merits where all affected parties are heard. The application substantially reproduced the reliefs sought in the Plaint, confirming that the relief sought was final in character and premature at an interlocutory stage.

p. 6
02

Whether the Applicant satisfied the Giella v Cassman Brown principles for an interlocutory injunction

Holding

No - no prima facie case, no irreparable harm, and balance of convenience favours the status quo

Reasoning

The Respondents demonstrated on a prima facie basis that they were lawful tenants whose occupation predated the partition, and the Applicant accepted rent from them. The alleged loss was rental income, quantifiable in damages. Granting the injunction would have effectively evicted the Respondents and determined the suit at an interlocutory stage.

p. 7
03

Whether general damages for trespass can be assessed at the interlocutory stage

Holding

No - liability for trespass is contested and must await trial

Reasoning

While trespass is actionable per se, the Court must first be satisfied that the occupation is unlawful. The Respondents assert a lawful tenancy and the Applicant continued to accept rent, acknowledging a landlord-tenant relationship. Liability itself is disputed and cannot be conclusively determined at the interlocutory stage.

p. 8

Legal principles established

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  • A party cannot be a trespasser where occupation originates from a tenancy or lawful authority unless that right has been lawfully terminated
  • Eviction orders are substantive relief that cannot be granted at the interlocutory stage

Court orders

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  1. 1.The Application of 15th November, 2024 be and is hereby dismissed.
  2. 2.Costs of the Application shall be paid by the Applicant to the 4th and 10th Respondents.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 27
  • Civil Procedure ActSection 63(c)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 4
  • Land Laws (Amendment) Act No. 28 of 2016Section 152 (E) & (G)
  • Legal Notice 280 of 2017 (Land Regulations)Regulation 65
  • Trespass ActSection 3
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (7)

  • Ephraim Wambu Miano v Kenya Commercial Bank
    [2002] eKLR
  • Giella v Cassman Brown & Co. Ltd
  • Trust Bank Ltd v Amalo Company Ltd
    (2002) eKLR
  • The Headmaster Kiembeni Primary School vs Baptist Church
    [2005] eKLR
  • Shah v. Shah
    (1981) KLR 374
  • Julius L. Marten –vs- Caleb Arap Rotich
    [2021] eKLR
  • Park Towers Limited -VS- John Mithamo Njika & 7 Others
    (2014) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act (Cap 21), Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 152(E) & (G) of the Land Laws (Amendment) Act No. 28 of 2016

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, "Ndungi (Suing as the representative of the Estate of Samuel Gichuru) v Kimondo & 31 others (Environment and Land Case E457 of 2024) [2026] KEELC 4811 (KLR)", Case Analysis (2026). Application dated 15th November 2024 (suit in respect of L.R No. 209/2412; part of ELC proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4811/eng@2026-07-23

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