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ELCAllowedMachakos ELC — Notice of Motion dated 14th June 2024

Muthoka (Suing as the administrator and the legal representatives of the Estate of Muthoka Itumo - Deceased) v Munguti & another (Sued as the administrator and the legal representatives of the Estate of Kamene Nzalai - Deceased & Mutetema Itumo - Deceased) (Environment & Land Case E012 of 2024) [2025] KEELC 1370 (KLR)

Environment and Land Court
20 March 2025
1,230 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Machakos protected a family's land with a temporary injunction, ruling their fresh application was not barred by earlier failed cases.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (Obaga J) determines a Notice of Motion dated 14th June 2024 in which the Plaintiff/Applicant, a legal representative of the estate of Muthoka Itumo, sought a temporary injunction restraining the Defendants/Respondents from interfering with, wasting, damaging, alienating or disposing of land parcels Machakos/Ulu/450 and Machakos/451. The litigation traces to the 1970s: Muthoka Itumo obtained judgment and eviction orders in Kilungu Magistrates Court Civil Case No. 126 of 1977; Mutetema Itumo and Kamene Nzalai later obtained an ex parte judgment in Nairobi HCCC No. 1727 of 1990 and registered the suit properties in their names; that ex parte judgment was set aside, though the registrations stood, and the suit was dismissed for want of prosecution. The Respondents opposed, arguing the application was defective, an abuse of process, res judicata given earlier dismissals by Justice Angote in Machakos ELC No. 69 of 2017, and that the suit properties were transferred under Succession Causes Nos. 27 and 28 of 2016. The court framed three issues: res judicata, prima facie case, and costs. It held the application was not res judicata because the prior rulings never determined an injunction prayer. Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the setting aside of the underlying judgment established a prima facie case, that eviction would cause irreparable loss as the land was the beneficiaries' only home, and that the balance of convenience favoured the Applicant in possession. The application was allowed in terms of prayers 3 and 4, with costs to the Applicant.

Questions the Court framed

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

  1. 1.Whether the application is res judicata
  2. 2.Whether the Applicant has shown a prima facie case to warrant issuance of an injunction
  3. 3.Which order should be made on costs

Key legal issues

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01

Res judicata

Holding

The application is not res judicata; the earlier applications in Machakos ELC No. 69 of 2017 decided by Justice Angote did not determine the prayer for injunction now sought.

Reasoning

The court reviewed two rulings by Justice Angote. One dismissed an application to revive Nairobi HCCC No. 1727 of 1990 (a dismissed suit could not be revived), and the other dismissed an application for execution of transfer documents since there was no suit. Neither ruling determined the injunction prayer now before the court, so the essential elements of res judicata were not met.

p. 3
02

Temporary injunction

Holding

The Applicant demonstrated a prima facie case with probability of success because the judgment that led to registration of the suit properties in the Respondents' names was set aside, and irreparable loss would follow eviction since the land is their only home.

Reasoning

Applying Giella v Cassman Brown as clarified in Mrao v First American Bank, the court found the judgment and orders resulting in registration of the properties in the Respondents' names had been set aside, establishing an infringed right. The Applicants and beneficiaries are in possession, and eviction would cause loss not compensable in damages. The balance of convenience also favours the Applicant in possession.

p. 3

Legal principles established

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  • The test for a temporary injunction is as set out in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not adequately compensable in damages, and balance of convenience if in doubt.
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and probability of success upon trial.
  • Res judicata does not apply where the earlier proceedings never determined the relief now sought.

Court orders

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  1. 1.Temporary injunction pending the hearing and determination of the suit restraining the Defendants/Respondents, their agents, servants or anyone acting under their instructions from actual interference or threats of wasting, damaging, alienating or disposing of any portion of land parcels Machakos/Ulu/450 and Machakos/451
  2. 2.Costs of the application borne by the Respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (interlocutory application within a pending suit)

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.

There was no determination of the prayer for injunction which the Applicant had prayed for. The present application is therefore not res judicata.
p. 3res judicata
This being the case the Applicant has demonstrated that he has a prima facie case with probability of success.
p. 3prima facie case
Even if the court were in doubt, the balance of convenience tilts in favour of the Applicant who is in possession of the suit properties.
p. 3balance of convenience
The same is allowed in terms of prayer 3 and 4 of the Notice of Motion dated June 14, 2024.
p. 3disposition

Issues in the judgment

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minor

The deponent/applicant identity is unclear; the ruling refers to the Applicant singular while describing beneficiaries of the estate of Muthoka Itumo, and the case caption in the judgment is not printed in the extract.

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, "Muthoka (Suing as the administrator and the legal representatives of the Estate of Muthoka Itumo - Deceased) v Munguti & another (Sued as the administrator and the legal representatives of the Estate of Kamene Nzalai - Deceased & Mutetema Itumo - Deceased) (Environment & Land Case E012 of 2024) [2025] KEELC 1370 (KLR)", Case Analysis (2025). Machakos ELC — Notice of Motion dated 14th June 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1370/eng@2025-03-20

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