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MagistratePartially AllowedNot stated in the judgment (application dated 19/4/2024 in a pending suit)· [2025] KEMC 89 (KLR)

Makothe v Mulei & 10 others (Environment & Land Case E015 of 2024) [2025] KEMC 89 (KLR)

Magistrates' Court (Environment and Land jurisdiction), Makindu
28 April 2025
YSY. A. SHIKANDA
2,962 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Makindu court froze all major dealings on a disputed Makueni land parcel but refused to evict the occupants before the case is fully heard.

What this practically means

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Executive summary

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This is a ruling on the plaintiff's notice of motion dated 19/4/2024 in a land dispute before the Makindu court. The plaintiff, who claimed to be a co-owner in common of land parcel Makueni/Kambu Scheme/1031 together with the 1st and 2nd defendants and a deceased third party, sought a temporary injunction restraining the defendants from encroaching, trespassing, cultivating, grazing, disposing of, developing or subdividing the parcel, an order directing the Sub-county Surveyor Kibwezi to place beacons demarcating the four proprietors' boundaries, and an order compelling the OCS Kambu Police Station to enforce compliance. The defendants, through a replying affidavit of the 2nd defendant, denied co-ownership, alleged the parcel 1031 title was procured by fraud, asserted possession for over 50 years conferring an overriding interest, and warned that the orders sought would amount to their eviction before trial. The court framed two issues: entitlement to injunction and costs. Applying Giella v Cassman Brown and authorities on the need for interlocutory orders to be ancillary to the plaint, it found prima facie evidence that the parcel exists and the plaintiff is a co-owner, and held preservation necessary, especially given the fraud allegations. However, granting the orders as prayed would evict the defendants in occupation before trial. The court granted a modified preservation order restraining sub-division, sale, alienation or substantial change of the land's character and halting major developments, declined the surveyor and police enforcement prayers as premature, and ordered costs of the application to abide the outcome of the suit.

Key legal issues

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01

Whether the plaintiff established entitlement to a temporary injunction against the defendants

Holding

Only partially: the court found a prima facie case that the parcel exists and the plaintiff is a co-owner, and found preservation of the suit property necessary, but refused the injunction as prayed because the defendants are in occupation and granting it would evict them before trial; instead a limited preservation order was issued

Reasoning

The court accepted that the search certificate showed the parcel exists and the plaintiff is a co-owner, and noted the defendants' own fraud allegations as reinforcing the need for preservation. However, it held that the orders as framed would effectively evict the occupants before trial, and cautioned against deciding substantive issues at the interlocutory stage. It therefore tailored orders to preserve the status quo without hardship, deferring boundary and enforcement prayers to the full hearing.

p. 6
02

Whether interlocutory orders may exceed the relief sought in the plaint

Holding

No; the injunction must be ancillary to and within the scope of the substantive relief sought in the suit

Reasoning

Relying on Shitakha v Mwamodo, Mbuthia v Jimba, Winstone v Winstone, McGibbon v McGibbon and the Ringera J decision in Dismas Oduor Owuor v Housing Finance Co. (K) Ltd, the court held that the plaint is the foundation of an interlocutory application and interlocutory orders at variance with the permanent orders sought cannot be granted. Having perused the plaint, the court was satisfied the prayers sought had a bearing on the application.

p. 6

Legal principles established

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  • The principles for granting a temporary injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable harm not compensable by damages, and balance of convenience if in doubt
  • An interlocutory injunction must be based on and ancillary to the relief claimed in the plaint; it ought not to be granted if the prayers in the application are at variance with the suit
  • In dealing with an interlocutory injunction application the court should not decide factual issues but weigh the relative strength of each side's propositions, resorting to the balance of convenience where disputed facts raise doubt
  • The power to grant or deny a temporary injunction is discretionary but must be exercised judiciously, and an injunction will only be granted to support a legal right

Court orders

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  1. 1.The Plaintiff and Defendants restrained, by themselves, their agents, servants, employees or anyone acting on their behalf, from sub-dividing, selling, alienating or in any other manner substantially changing the character of land parcel No. Makueni/Kambu Scheme/1031, pending the hearing and determination of the suit
  2. 2.No further major developments or projects by either party or persons claiming through them on land parcel number Makueni/Kambu Scheme/1031, pending the hearing and determination of the suit
  3. 3.Prayer for an order directing the Sub-county Surveyor, Kibwezi to visit the suit land and place beacons thereon declined as premature
  4. 4.Prayer for an order directing the officer commanding Kambu Police post to enforce the orders declined as there is nothing for the police to enforce at this stage
  5. 5.Costs of the application to abide by the outcome of the suit
Jurisdiction invoked
Civil Procedure Act (sections 1A, 1B, 3A) and Order 40 rule 2 of the Civil Procedure Rules; original civil jurisdiction over land dispute

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, "Makothe v Mulei & 10 others (Environment & Land Case E015 of 2024) [2025] KEMC 89 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 19/4/2024 in a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/89/eng@2025-04-28

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