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ELCDismissedELCL(OS) NO. E009 OF 2024· [2026] KEELC 4952 (KLR)

Mwau v Chore & 6 others (Enviromental and Land Originating Summons E009 of 2024) [2026] KEELC 4952 (KLR)

Environment and Land Court
29 July 2026
NMN.A. MATHEKA
1,655 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Machakos Environment and Land Court refused a temporary injunction in a double-sale land dispute, telling both buyers to prove their claims at a full hearing.

What this practically means

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Executive summary

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The Applicant, who bought a portion of land Reference No. Wamunyu Kambiti/223 in or about April 2003 from Mutune Kinandu and Nzuki Kinandu, sons and beneficiaries of the estate of Kithembe Nzimbi (Deceased), moved the Environment and Land Court at Machakos by notice of motion seeking urgent certification, temporary injunctions restraining the 1st and 2nd Defendants from trespassing on or interfering with her possession, occupation and use of the suit land, an order directing the OCS Wamunyu Police Station to enforce the orders, and costs, pending the hearing of the Originating Summonses. She relied on Article 40 of the Constitution, the Land Act, the Law of Succession Act and the Civil Procedure Act and Rules. She deponed to having taken possession and paid the purchase price through her late husband, Boniface Mwau Muli, enjoying quiet possession until 23rd January 2024, when the 1st and 2nd Respondents, through the Chief, served her with a trespass notice and later partially fenced the land. The 1st and 2nd Respondents opposed, asserting they bought the suit land on 4th April 2013 from Boniface Mwau Muli, took possession and fenced it in 2013, aware of the earlier sale. The court, per N.A. Matheka J, framed one issue: whether the Applicant met the threshold for a temporary injunction. Applying Giella v Cassman Brown, Order 40 Rule 1, Rockland Kenya v Elliot White Miller and Robert Mugo wa Karanja v Ecobank, the court held that both parties claim ownership through purchase and none has ownership documents, that conflicts of affidavit evidence should not be resolved at the interlocutory stage, and that the risk of granting the injunction outweighed refusing it. The application was dismissed, parties directed to comply with Order 11 and set the suit down for hearing, with costs in the cause.

Key legal issues

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01

Whether the Applicant met the Giella v Cassman Brown threshold for a temporary injunction

Holding

The application was not merited and was dismissed

Reasoning

The court applied the three Giella conditions and Order 40 Rule 1. It found both parties claiming ownership through purchase, neither holding ownership documents, and noted it had not interrogated the relevant documents and annexures. It concluded there was greater risk in granting the injunction than refusing it pending full hearing of the suit.

p. 8
02

Whether the court could resolve the conflicting claims of purchase on affidavit evidence

Holding

It could not; the disputed documents required testing at trial

Reasoning

Following Rockland Kenya Limited v Elliot White Miller, the court held that where legal rights depend on disputed facts, affidavit evidence is incomplete and untested, so the court should not resolve conflicts of evidence or decide difficult questions of law at the interlocutory stage.

p. 7

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with a probability of success, irreparable harm not adequately compensable by damages, and, if in doubt, the balance of convenience (Giella v Cassman Brown)
  • At the interlocutory stage the court should not resolve conflicts of affidavit evidence on facts on which the parties' claims ultimately depend

Court orders

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  1. 1.The application for a temporary injunction is dismissed
  2. 2.Parties are advised to comply with Order 11 and set down the matter for hearing
  3. 3.Costs to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • The Land Act No. 6 of 2012Sections 38, 41 and 42
  • Law of Succession Act, Cap 160Sections 45 and 46
  • Civil Procedure Act (Cap 21)Sections 1A, 1B and 3A
  • Civil Procedure Rules 2010Order 37 Rules 3, 5, 8 and 20; Order 40 Rule 1; Order 11

Cases cited (3)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Rockland Kenya Limited vs Elliot White Miller
    (1994) eKLR
  • Robert Mugo wa Karanja vs Ecobank (Kenya) Limited & Another
    (2019) eKLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya; Sections 38, 41 and 42 of the Land Act No. 6 of 2012; Sections 45 and 46 of the Law of Succession Act Cap 160; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); Order 37 Rules 3, 5, 8 and 20 and Order 40 Rule 1 of the Civil Procedure Rules 2010

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, "Mwau v Chore & 6 others (Enviromental and Land Originating Summons E009 of 2024) [2026] KEELC 4952 (KLR)", Case Analysis (2026). ELCL(OS) NO. E009 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4952/eng@2026-07-29

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