Mugaa v Maisha Housing Limited (Environment and Land Miscellaneous Case E005 of 2026) [2026] KEELC 887 (KLR)

ii. That the prayers sought in the application specifically for injunction and a declaration are interim in nature and cannot be sought or granted in a vacuum without an underlying primary suit. iii. That in the absence of a plaint there is no substratum upon which this Honourable court can exercise its jurisdiction to grant an order of injunction or declaration. iv. That the filing of a Miscellaneous Application to seek final or interlocutory injunctive relief without a primary cause of action constitutes a gross abuse of the process of this Honourable court. v. That the Applicant having explicitly prayed for costs in his own application, the Respondent is entitled to costs on an indemnity basis for being dragged to court on a procedurally terminal and baseless application. vi. That consequently, the entire application is fatally defective and should be struck out in limine with costs to the Respondent. 3. The application was disposed of through oral submissions which are on record. The singular issue for determination is whether the order of injunction and declaration can be granted in a vacuum. 4. Section 19 of the Civil Procedure Act provides that: “ Every suit shall be instituted in such manner as may be prescribed by the rules: 5. Order 3 Rule 1 of the Civil Procedure Rules provides that: “ Every suit shall be instituted by presenting a plaint to the court, or in any such other manner as may be prescribed.” 6. The other ways of commencing suit are through a petition, originating summons, or Judicial Review Application. 7. It is a fundamental principle of law that an injunction whether temporary or permanent cannot be granted unless it is anchored on a substantive suit or put difierently, an injunction cannot be granted in a vacuum. 8. In the case of Patrick Ngumbao Mweni v Hellen Jepkoskei Kiplagat & 2 others HC Civil Case No. 19 of 2006 the court declined to grant the injunction sought by the 1st and 3rd Defendants as they had not filed a counterclaim. They only sought orders that the plaintifi’s suit be dismissed. 9. The court observed as follows: i. There is no prayer to have the registration cancelled. The 3rd defendant has not even raised a prayer that he be declared as the owner of the trees and that he be allowed to harvest them. I totally agree with counsel for the plaintifi that an injunction order cannot be given in a vacuum. “One must show that he has made a claim”. 10. Distilling the principle in the above mentioned authority and applying it to the instant case, the Applicant has not demonstrated that he has filed a claim against the Respondent either for injunctive relief or a declaratory order. 11. Consequently, the Miscellaneous Application and Notice of Motion dated 21.1.26 are incompetent and incurably defective. The Miscellaneous Application is hereby struck out in its entirety. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/887/eng@2026-02-11 2

page 2 of 3

12. I make no order as to costs. The file shall be closed. DATED, SIGNED AND DELIVERED, AT THIKA THIS 11TH DAY OF FEBRUARY 2026. …………………….. J. M. ONYANGO JUDGE In the presence of: Miss Ndichu for the Applicant Mr. Musyoka for the Respondent Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/887/eng@2026-02-11 3

page 3 of 3