Munyae & 10 others v Mulwa & 21 others
The bottom line
#Kenya's Court of Appeal cancelled a land injunction that gave final relief too early, but kept the temporary order protecting the land until trial.
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 learned ELC judge erred in granting a mandatory injunction at the interlocutory stage without hearing oral evidence
- 2.Whether the learned judge properly exercised his discretion in granting the interlocutory injunction pending hearing of the suit
- 3.Whether the Court of Appeal could determine the appellants' claims that the suit is statute barred and that the respondents lacked locus standi, on appeal against a ruling on injunctions
Key legal issues
#Grant of mandatory injunction at interlocutory stage
It was erroneous to grant the mandatory injunction; the case was not clear and obvious and contested issues merited a hearing. This part of the appeal succeeds (also conceded by the respondents).
The mandatory injunction effectively allowed the prayers in the plaint without hearing the parties, despite contested issues such as unequal subdivision, limitation and capacity. Such an order determines the dispute summarily on affidavit evidence and is reserved for exceptional, clearest cases. Respondents' counsel conceded the point.
Interference with discretionary interlocutory injunction
The interlocutory injunction stands; the judge considered the appellants' arguments, and a prima facie case and irreparable loss were apparent on the material before him.
Applying Mbogo v Shah and Nguruman principles, the Court will not substitute its own view for the judge's discretion. The judge's findings were preliminary, made solely for the injunction application, and open to challenge at trial. The injunction preserved the status quo and would evict no one.
Scope of appeal - limitation and locus standi
The Court declined to determine whether the suit is time barred or whether respondents have capacity, as no application for dismissal in limine was before the ELC.
The impugned ruling decided only whether interlocutory and mandatory injunctions should issue. An appellate court is confined to the subject matter that provoked the appeal and cannot make a first-instance determination that a suit be dismissed.
Legal principles established
#- A mandatory injunction at the interlocutory stage may only be granted in exceptional circumstances and in the clearest of cases, because it grants final relief on affidavit evidence
- An appellate court will not interfere with a trial judge's exercise of discretion merely because it would have decided differently; interference requires misdirection, failure to consider relevant matters, consideration of irrelevant matters, or abuse of discretion
- An appeal against a ruling on an injunction cannot be used to obtain a first-instance determination that the suit should be dismissed in limine
Court orders
#- 1.The order of mandatory injunction issued by the ELC judge is set aside
- 2.The order of interlocutory injunction issued by the ELC judge remains undisturbed
- 3.There will be no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Machakos
- Machakos ELC No. 158 of 2017
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an appeal from the Environment and Land Court (no specific constitutional/statutory provision quoted in the judgment)
Relief refused
#Setting aside the interlocutory injunction
The appellants failed to show the judge misdirected himself or abused his discretion; the injunction merely preserved the status quo
Dismissal of the suit for being statute barred and for lack of locus standi
The ruling appealed from concerned injunctions only; the Court cannot determine dismissal of the suit in the first instance on appeal
Costs
No orders as to costs - 'Mr. Ngure had already conceded on this point, and in light of that, there will 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.
At an interlocutory stage, a mandatory injunction is only granted in exceptional circumstances, and in the clearest of cases, for it has the e ect of granting nal orders based on a davit evidence, without giving the parties an opportunity of being heard on merits.
We cannot upset the decision of the ELC Judge simply because we would have arrived at a di erent decision if we had sat as the court of rst instance.
This is an appellate court and not a trial court, and this Court needs to limit itself to the subject matter that provoked the appeal.
Consequently, we hereby set aside the order of mandatory injunction. Mr. Ngure had already conceded on this point, and in light of that, there will be no orders as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyae & 10 others v Mulwa & 21 others", Case Analysis (2026). Civil Appeal 249 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1922/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.