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MagistrateDismissedNot stated in the judgment (application dated 14/10/2025)· [2026] KEMC 114 (KLR)

Kilile v Makau (Environment and Land Case E001 of 2025) [2026] KEMC 114 (KLR)

Magistrates' Court
5 May 2026
3,739 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a land buyer's injunction because there was no written sale agreement, meaning verbal land deals carry serious legal risk.

What this practically means

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Executive summary

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The plaintiff moved the court by notice of motion dated 14/10/2025 seeking a permanent injunction restraining the defendant from disposing of, alienating, sub-dividing, leasing, selling or transferring Plot Number 181B (M.A.T.C 13/10/B) pending the hearing of the suit, plus costs. The plaintiff deposed that he bought the suit property for Kshs. 1,500,000, paid Kshs. 100,000 as a deposit under a sale agreement, and that the defendant declined the balance, purported to cancel the agreement unilaterally and was reselling to third parties. The defendant denied any binding written agreement, admitted receiving Kshs. 100,000, offered an immediate refund, and asserted the land had already been sold to third parties. The court framed two issues: entitlement to injunction and costs. Applying Giella v Cassman Brown, it held there was no formal written sale agreement as required by section 3(3) of the Law of Contract Act, so no prima facie case was established; equity cannot cure such a substantive legal deficiency. Irreparable loss failed because the Kshs. 100,000 loss was quantifiable and refundable and the plaintiff had no proprietary interest or possession. The balance of convenience favoured the registered owner. The court further noted third-party purchasers were not joined, so orders against them would offend natural justice. The application was dismissed with costs to the defendant, i.e. the plaintiff to bear the costs of the application. Judgment delivered at Makindu by Senior Principal Magistrate Y.A. Shikanda on 5 May 2026.

Key legal issues

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01

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

Holding

No - there was no formal written agreement for the sale of land, so no contractual relationship could be shown at the prima facie level.

Reasoning

The court found it undisputed that the defendant received Kshs. 100,000 but the purpose was disputed. Section 3(3) of the Law of Contract Act requires land sale contracts to be in writing. The plaintiff did not disclose the agreement's date and no written agreement existed, so no terms could be ascertained and no contractual relationship was demonstrated. Equity could not cure this deficiency.

p. 6
02

Whether the plaintiff would suffer irreparable loss not compensable by damages

Holding

No - the plaintiff's alleged loss was quantifiable at Kshs. 100,000 and refundable, and he had no proprietary interest or possession.

Reasoning

The plaintiff paid only Kshs. 100,000; the defendant offered an immediate refund. The plaintiff had not taken possession and had no recognizable or enforceable proprietary interest, so any loss could be remedied in monetary terms. The second Giella condition therefore failed.

p. 6
03

Whether the balance of convenience favoured the plaintiff

Holding

No - although unnecessary after failing the first two conditions, the balance of convenience favoured the defendant, the registered owner in occupation.

Reasoning

The plaintiff was not in occupation and his position was fluid. Granting the injunction would have prevented the defendant from occupying and utilizing his own land, causing him loss. The court also noted the land had been sold to third parties who were not joined, and orders against them would offend natural justice.

p. 7

Legal principles established

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  • Equity does not operate in a vacuum and cannot be invoked to cure a substantive legal deficiency such as absence of a written agreement under section 3(3) of the Law of Contract Act.
  • An interlocutory injunction ought not be granted where the prayers in the application are at variance with the permanent orders sought in the suit.
  • The court should not decide substantive issues at the interlocutory stage but weigh the relative strength of each side's propositions.

Court orders

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  1. 1.The application dated 14/10/2025 was dismissed
  2. 2.The plaintiff was ordered to bear the costs of the application
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 rule 2 of the Civil Procedure Rules

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, "Kilile v Makau (Environment and Land Case E001 of 2025) [2026] KEMC 114 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 14/10/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/114/eng@2026-05-05

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