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ELCStruck OutNot stated in the judgment (Machakos/ELC matter, Kakamega)

Mutune & 700 others v Westend Buthery Limited & another (Environment & Land Case E002 of 2024) [2025] KEELC 1402 (KLR)

Environment and Land Court
19 March 2025
ANA. NYUKURI
1,480 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land dispute suit because you cannot enforce a court order from an old case by filing a new one.

What this practically means

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Executive summary

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The plaintiffs, who claimed to have acquired adverse possession interests in L.R. Number 7149/203, filed two applications seeking temporary injunctions restraining the defendants from selling, transferring or dealing with the suit property or any subdivisions. Their claim rested on a consent order recorded in Machakos ELC Case No. 434 of 2017, under which the suit property was to be sold and the plaintiffs paid Kshs. 700,000,000/=, plus a promised token of appreciation. The plaintiffs alleged the defendants were secretly selling the property and reneging on the consent. The 1st defendant, through replying affidavits, maintained he was the owner, that the plaintiffs had been required to demolish their structures under a 2019 consent (which they did), that the Kshs. 700 Million undertaking was given by the 2nd defendant without his authority, and that any token payment depended on a sale that had not occurred. The court first found the application dated 10th February 2024 spent, leaving only the 17th January 2024 application. It recited the settled Giella v Cassman Brown conditions for temporary injunctions but then determined that, on the plaintiffs' own case, the suit was an attempt to execute the consent order made in Machakos ELC No. 434 of 2017. Relying on Section 34 of the Civil Procedure Act, the court held that all questions relating to execution of a decree must be determined by the executing court, not by a separate suit. It found it lacked jurisdiction over the application and the suit, struck out the application dated 17th January 2024 with costs for want of jurisdiction, and directed that the plaintiffs should execute the consent in the original matter. Delivered virtually at Kakamega on 19th March 2025 by A. Nyukuri, Judge.

Questions the Court framed

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

  1. 1.Whether the plaintiffs have met the threshold for grant of orders of temporary injunction
  2. 2.Whether the court has jurisdiction to entertain the application and the suit, in so far as the suit seeks to execute an order made in Machakos ELC No. 434 of 2017

Key legal issues

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01

Whether the plaintiffs established conditions for a temporary injunction

Holding

The court did not reach the merits of the injunction application because it found the suit itself was an attempt to execute a decree in another suit, over which it had no jurisdiction; the application was struck out

Reasoning

The plaintiffs' claim was founded on a consent order in Machakos ELC No. 434 of 2017 under which they were to be paid Kshs. 700,000,000/= upon sale of the suit property. Section 34 of the Civil Procedure Act vests all questions relating to execution of a decree in the court executing it. The proper remedy was to execute that consent order in the original suit, not to file a fresh suit seeking injunctive relief to enforce it.

p. 4
02

Whether the application dated 10th February 2024 remained live for determination

Holding

The application was spent because its orders were sought pending hearing of the application itself

Reasoning

The Motion of 10th February 2024 sought an injunction only until the said application was heard and decided. Since such interim orders lapse once the application comes up for hearing, nothing remained pending before the court on it.

p. 2

Legal principles established

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  • All questions relating to the execution, discharge or satisfaction of a decree must be determined by the court executing the decree, not by a separate suit
  • A party cannot lawfully enforce a consent order recorded in another suit through a fresh suit

Court orders

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  1. 1.The application dated 17th January 2024 is struck out with costs for want of jurisdiction

The bench

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

AN
majority

Wrote the judgment

Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules; Section 34 of the Civil Procedure Act

Relief refused

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Temporary injunction restraining the defendants from selling, transferring or dealing with L.R. Number 7149/203 pending hearing and determination of the suit

The court lacked jurisdiction because the suit sought to enforce a consent/decree from Machakos ELC No. 434 of 2017 through a fresh suit, contrary to Section 34 of the Civil Procedure Act

p. 4

Costs

The application dated 17th January 2024 was struck out with costs (costs awarded to the respondents)

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.

In the premises, I find and hold that this court lacks jurisdiction to hear and determine the application dated 17th January 2024 as well as this suit. Consequently, I hereby strike out the application dated 17th January 2024 with costs for want of jurisdiction.
p. 4Final orders - striking out for want of jurisdiction
All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.
p. 3Section 34 Civil Procedure Act - execution to be in the executing court
An applicant for temporary injunction must demonstrate a prima facie case with chances of success; demonstrate that he or she stands to suffer irreparable injury that may not be compensated in damages and where the court is in doubt, it shall decide the application on a balance of convenience
p. 3Giella v Cassman Brown - conditions for temporary injunction

Issues in the judgment

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minor

Counsel for the 1st respondent indicated that grounds of opposition and a preliminary objection dated 30th January 2024 were filed, but the record and CTS show they were never filed

minor

Numbered paragraph 15 appears as a stray heading 'Questions to be determined by court executing decree 1.' immediately before the quoted text of Section 34, disrupting the flow of the judgment

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, "Mutune & 700 others v Westend Buthery Limited & another (Environment & Land Case E002 of 2024) [2025] KEELC 1402 (KLR)", Case Analysis (2025). Not stated in the judgment (Machakos/ELC matter, Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1402/eng@2025-03-19

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