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Case Brief · caselaw.co.ke
MagistratePartially AllowedNot stated in the judgment

Githuka v Githinji (Civil Case E366 of 2023) [2026] KEMC 195 (KLR)

Chief Magistrate's Court at Nakuru
25 June 2026
570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Nakuru court issued restraining orders against both sides of a family property feud, but left the ownership question for a proper land or succession court.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 06/07/2023 seeking a restraining order against the defendant, barring her from threatening to harm, visiting, contacting or communicating with him, his family members and employees. The defendant filed a defence and counterclaim dated 18/10/2023 seeking a permanent restraining order against the plaintiff from contacting her, her family members, children, tenants and agents situated at LR No. 1317/195, an order compelling the OCS Gilgil Police Station to ensure compliance, and costs. It was common ground that the parties were locked in a protracted property and/or succession dispute over the estate of the plaintiff's late brother-in-law; the defendant claimed she had been married to him after the death of the plaintiff's sister, a claim the plaintiff disputed. The court declined to delve into that dispute, noting it was not a land or family court and that the parties had inappropriately communicated with each other in the course of their disputes. Finding no defence to the counterclaim, the court issued the permanent restraining orders sought in both cross-suits on a mutual basis, directed the OCS Gilgil Police Station to ensure compliance, and ordered each party to bear their own costs. The court expressly made the restraining order touching LR No. 1317/195 subject to any contrary order issued in an appropriate forum, stating that the order was not proof of ownership of the property or a determination of any succession dispute.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff was entitled to a restraining order against the defendant from threatening, visiting, contacting or communicating with him, his family members and employees
  2. 2.Whether the defendant's counterclaim for a permanent restraining order against the plaintiff, his agents, and an OCS compliance order should be granted
  3. 3.Whether the existence of an underlying property/succession dispute barred the granting of the mutual restraining orders

Key legal issues

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01

Entitlement to mutual restraining orders arising from inappropriate communication between litigants

Holding

The court granted the permanent restraining orders sought in both the plaint and the counterclaim against each party

Reasoning

The court found it common ground that the parties were engaged in a protracted property and/or succession dispute, and that in the course of that dispute they had inappropriately communicated with each other. Finding no defence to the counterclaim and seeing no reason to deny either side relief, the magistrate issued the restraining orders sought in the cross-suits, with police enforcement through the OCS Gilgil.

p. 2
02

Limits of the magistrates' court's role in the underlying land/succession dispute

Holding

The court declined to pronounce on ownership or succession, expressly subordinating the restraining order touching LR No. 1317/195 to any order of an appropriate forum (ELC or Family Court)

Reasoning

Although several documents relating to the property and succession dispute were filed, the court held this was neither a land nor a family court. It therefore framed the restraining order relating to the property as subject to any contrary order issued in an appropriate forum, and made clear the order should not be treated as proof of ownership or a determination of the succession dispute.

p. 1

Legal principles established

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  • Where parties have inappropriately communicated with each other in the course of a dispute, the court may issue mutual restraining orders rather than deny either party relief
  • A restraining order made in a civil suit is not a determination of property ownership or succession rights, and yields to any contrary order issued by a court of competent jurisdiction in an appropriate forum

Court orders

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  1. 1.A permanent restraining order restraining the defendant from threatening to harm, visiting and or contacting the plaintiff, his family members and employees, communicating with him, his family members and employees
  2. 2.A permanent restraining order against the plaintiff restraining him from contacting the defendant's family members, herself, her children, her tenants, her agents situated at LR No. 1317/195 through himself or his agents whatsoever, subject to any other contrary order issued in an appropriate suit relating to LR No. 1317/195
  3. 3.The OCS Gilgil Police Station ordered to ensure compliance of the above orders
  4. 4.Both parties to bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AN
Aloyce Peter NdegeSenior Principal Magistrate
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over the plaint and counterclaim (no specific constitutional or statutory provision cited in the judgment)

Relief refused

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Any definitive determination of the underlying property or succession dispute

The court declined to determine ownership/succession issues, holding that the restraining order relating to LR No. 1317/195 is subject to any contrary order in an appropriate forum and is not proof of ownership

p. 2

Costs

Both parties to bear own costs

Quotable passages

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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 parties herein have, in the course of the disputes, inappropriately communicated with each other and I thus see no need to deny them the restraining orders sought against each other herein.
p. 1Basis for mutual restraining orders
A permanent restraining order is hereby issued restraining the defendant from threatening to harm, visiting and or contacting the plaintifi, his family members and employees, communicating with him, his family members and employees.
p. 2Final order against the defendant
This order should not therefore be taken as full proof of the ownership of the property or a succession dispute over the property.
p. 2Restraining order is not a property/succession determination
Any order issued in an appropriate forum in relation to the ownership of the property that is contrary to the above order, shall therefore be taken or interpreted to have set aside, vacated or varied the order in (b) above.
p. 2Subordination of the restraining order to an appropriate forum

Issues in the judgment

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minor

The judgment is dated '25TH DAY OF JUNE, 2026', a date in the future, which appears to be a typographical error in the judgment

minor

The judgment does not state the case number or citation of the suit

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, "Githuka v Githinji (Civil Case E366 of 2023) [2026] KEMC 195 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/195/eng@2026-06-25

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