Maingi v Mutunyu & 7 others (Environment and Land Case E038 of 2022) [2026] KEMC 68 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is res judicata
- 2.Whether the orders made on 2/1/2024 should be set aside
- 3.Whether the orders made on 15/11/2023 are ambiguous and ought to be varied
- 4.Whether the applications dated 19/12/2023 and 12/2/2024 should be struck out
Key legal issues
#Setting aside of ex parte mandatory injunction issued on 2/1/2024
The mandatory injunction ordering removal of the fence was made in error; it was final in effect and granted without hearing parties or tangible evidence
The order was issued ex parte on an alleged contempt of earlier status quo orders, yet no evidence, not even photographs, showed the plaintiff had fenced the land or blocked access. The order effectively concluded the illegality of the fence without hearing both parties, contrary to the caution required for mandatory injunctions granted ex parte. The threshold of exceptional circumstances and a clear uncontested case was not met, so the order was set aside.
Ambiguity of the status quo order made on 15/11/2023
Order No. 2 was ambiguous as it did not specify the portions each party could occupy, and was stayed pending ascertainment of the true status quo
Both parties occupy and use the suit land, but the acreage occupied by each is unknown. The order could be read to permit the defendants to cultivate, graze and enter the plaintiff's portion, or to bar the plaintiff from the land entirely. Following the Court of Appeal in Saroj K. Shah and the Supreme Court in Bia Tosha, generic status quo orders are imprecise and undesirable; variation requires evidence of the position on the ground, hence the surveyor's direction.
Whether the defendants' applications should be struck out
The applications were not struck out but marked as spent
Having found the orders of 2/1/2024 problematic and part of the orders of 15/11/2023 ambiguous, the court considered it imprudent to proceed with the defendants' applications. Although the plaintiff sought their striking out as scandalous, vexatious and an abuse of process, the court chose the less drastic course of marking them as spent, preserving judicial resources while disposing of their practical effect.
Legal principles established
#- Mandatory injunctions should not be granted ex parte or at the interlocutory stage in the absence of special circumstances, a clear case and a high degree of assurance
- Generic status quo orders without precise particulars of the position preserved are a recipe for chaos and should not issue
- Conditions for an ex parte mandatory injunction: extreme urgency, exceptionally strong case, clear uncontested wrongful act, restoration of status quo, and a simple immediately reversible act
Court orders
#- 1.The orders made on 2/1/2024 pursuant to the application dated 19/12/2023 are set aside
- 2.The orders made on 15/11/2023, in particular order No. 2 on status quo, are stayed pending determination of the real status quo on the ground
- 3.The injunction restraining all parties from selling, transferring, sub-dividing, constructing, cutting down trees, harvesting sand or soil, burning charcoal or causing wastage on land parcel No. Makueni/Nguu Ranch/1046 shall remain in force
- 4.The Makueni County Surveyor is directed to visit the land, ascertain the acreage occupied by each party and furnish a report in court
- 5.The parties, through counsel, to agree with the County Surveyor on the timing of the exercise, to be conducted not later than forty-five (45) days
- 6.The parties shall equally meet the costs of the survey exercise
- 7.The applications dated 19/12/2023 and 12/2/2024 are marked as spent
- 8.There shall be no orders as to costs
- 9.Parties are advised to avoid side shows and focus on the hearing of the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over land dispute; application under Order 40 rule 7 of the Civil Procedure Rules (discharge, variation or setting aside of injunction orders)
Relief refused
#Striking out of the defendants' applications dated 19/12/2023 and 12/2/2024
The court opted to mark them as spent instead of striking them out
Setting aside or discharge of the orders of 2/1/2024 'in their entirety' on the basis sought and immediate definition of the status quo by acreage
Variation of the status quo order requires evidence of the true position on the ground, hence the surveyor direction
Costs
There shall be no orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The orders made on 2/1/2024 pursuant to the application dated 19/12/2023 are hereby set aside;
The orders made on 15/11/2023 and in particular order No. 2 on the status quo are hereby stayed pending determination of the real status quo on the ground;
the order of injunction restraining all the parties either by themselves or through their servants and or employees from selling, transferring, sub-dividing, constructing, cutting down trees, harvesting sand or soil, burning charcoal or causing wastage whatsoever on land parcel No. Makueni/Nguu Ranch/1046 pending the hearing and determination of the suit shall remain in force;
a status quo order without specifying the extent of where each party is allowed to occupy and use, would be a recipe for chaos.
There was no tangible evidence whatsoever to show that the plaintifi had erected a fence around the suit property and had also blocked the access road.
the applications dated 19/12/2023 and 12/2/2024 are hereby marked as spent;
There shall be no orders as to costs;
Issues in the judgment
#The judgment is dated and delivered on 13th March 2026, yet it recites and determines interlocutory applications dated December 2023 to February 2024, an unusually long interval not explained in the judgment
The defendants' replying affidavit misdescribed the application under challenge, referring to a non-existent application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maingi v Mutunyu & 7 others (Environment and Land Case E038 of 2022) [2026] KEMC 68 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/68/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.