Cleland (Suing in her capacity as the Executor/Administrator of the Estate of Njuguna Muchai - Deceased) v Muchai (Environment and Land Appeal E039 of 2025) [2026] KEELC 3212 (KLR)

The Appellant stands to sufier irreparable loss. Thirdly, the status quo is that the Respondent is in occupation of the suit land and the balance of convenience tilts in favour of the Appellant. 3. The motion is opposed by the Respondent in a replying afidavit dated 16-1-205 in which it is stated as follows. One, the motion is bad in law and an abuse of the court process. Two, the allegation of fraud is a blatant falsehood because no fraud was proved in the lower court. Three, the Respondent bought the suit land from the deceased for Kshs.200,000/- and the deceased transferred it to her. As the owner and occupier of the suit land, the Respondent should not be injucted from dealing with her own land. Four, the Appellant lives in the United Kingdom and has not been to Murang'a yet the afidavit dated 5-12-2025 purports to have been sworn at Murang'a. The said afidavit should therefore be struck out. Finally, the motion dated 18-3-2026 seeks to have the afidavit dated 5-12-2025 be expunged from the record. 4. Counsel for the parties filed written submissions dated 16-1-2026 and 3-3-2026 respectively. I have carefully considered the motion in its entirety including the grounds of the motion dated 5-12-2025, the supporting afidavit, the replying afidavits, the motion dated 18-3-2026, the grounds and the supporting afidavit to the said motion, the written submissions by learned counsel for parties and the law cited therein. I find that the following issues arise. i. Whether the Appellant has established a prima facie case with a probability of success. ii. Whether the Appellant stands to sufier irreparable loss than cannot be adequately compensated with an award of damages. iii. In whose favour does the balance of convenience tilt? iv. What does the court make of the allegations that the afidavit dated 5-12-2025 is commissioned at Murang'a by a deponent who was not in Kenya on the said date? 5. On the 1st issue, I find that since the appeal is not yet heard, it is prudent not to make any finding on this issue because it could prejudice the appeal itself. 6. Regarding the 2nd issue, I find that the Appellant has not proved that she stands to sufier irreparable loss that cannot be adequately compensated with an award of damages. She is neither the registered owner of the land nor is she in occupation thereof. She has not indicated what she owns on the suit land that is in danger of alienation by the Respondent. 7. The balance of convenience tilts in favour of the Respondent because she is in occupation and such occupation is not recent. 8. Finally on the commissioning of the afidavit at Murang'a, it is the Respondent alleging that the Appellant was not in Murang'a on 5-12-2025. She has not tendered any evidence on this. The burden is on her to prove that the Appellant was not in Murang'a on the material date. There is no evidence to prove this allegation. 9. In conclusion and for the reasons already stated, I find no merit in the motion dated 5-12-2025. I dismiss the said motion. Costs in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 19TH DAY OF MAY, 2026. M.N. GICHERU https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3212/eng@2026-05-19 2

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JUDGE. Delivered online in the presence of; Court Assistant – Mutunga. Appellant's Counsel – Absent. Respondent's Counsel – Mr Kimondo Mubea. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3212/eng@2026-05-19 3

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