Lewa & 51 others v Mbogo (Environment & Land Case E069 of 2024) [2025] KEELC 3312 (KLR)
The bottom line
#The Kwale Environment and Land Court dismissed 52 applicants' bid for an injunction over disputed land, but froze the property for both sides 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 Notice of Motion dated 6th November, 2024 meets the threshold required of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010.
- 2.Who will bear the costs of the Notice of Motion application dated 6th November, 2024.
Key legal issues
#Whether the Applicants established a prima facie case with a probability of success
They did not; they produced no title or root of ownership while the Defendant evidenced registration through a confirmed succession grant.
Applying the Mrao definition, the Applicants needed to show an apparent right infringed calling for rebuttal. Their claim rested on ancestral occupation averments unsupported by documents, whereas the Defendant annexed a search, grant and certificate of title showing her late husband as first registered owner in 1978 and herself as registered owner from 17th January 2025 by transmission. The court noted a certificate of title by the Applicants would have been prima facie conclusive evidence of ownership, which they lacked.
Whether the Applicants would suffer irreparable injury not compensable by damages
They would not; their occupancy was in doubt and damages would suffice.
Guided by Pius Kipchirchir Kogo v Frank Kimeli Tenai, irreparable injury must be actual, substantial and not measurable in damages. The court found it an unhidden fact that on the documentary evidence the suit property belonged to the Defendant, while the Applicants had not shown any root of title to the property they claimed. Their occupancy being doubtful, any injury was compensable in damages, so the second Giella condition failed.
Where the balance of convenience lies and whether preservation orders should issue
Although the balance of convenience was found to favour the Defendant, the court ordered status quo on preservation grounds under lis pendens.
The court reasoned that it had not interrogated all documents bearing on the history and chronology of the Applicants' claim, and it would serve both parties' interests that the suit property be preserved until trial. Relying on the doctrine of lis pendens and the decisions in George Kadenge v Azzuri Limited and Mawji v USIU, the court, despite finding the motion unmerited, directed maintenance of status quo pending the hearing and determination of the suit.
Legal principles established
#- The three Giella conditions are sequential hurdles that must each be surmounted; failure on an earlier limb precludes consideration of the later ones.
- Costs follow the event under Section 27(1) of the Civil Procedure Act, though the court may order costs in the cause.
Court orders
#- 1.The Notice of Motion application dated 6th November, 2024 be and is hereby found to lack merit and is dismissed.
- 2.Based on the doctrine of lis pendens, an order of status quo to be maintained, restraining both the Plaintiffs/Applicants and the Defendant/Respondent by themselves, their servants, agents or otherwise from disposing, selling, transferring, charging, leasing, constructing or continuing construction or in any other manner interfering with the land pending the hearing of the main suit.
- 3.Mention on 3rd July 2025 for an intensive pre-trial conference pursuant to Order 11 of the Civil Procedure Rules, 2010; hearing on 3rd November 2025.
- 4.The costs of the Notice of Motion application dated 6th November, 2024 shall be in the cause.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 40 Rules 1, 5 and 10 of the Civil Procedure Rules, 2010; Sections 1A and 3A of the Civil Procedure Act, Cap. 21
Relief refused
#Temporary injunction restraining the Defendant from occupying, alienating, evicting or interfering with the Plaintiffs' occupation and use of Plot No. 300 at Dzombo Mnanazini pending hearing and determination of the suit.
The Applicants failed to establish a prima facie case with a probability of success and failed to show irreparable injury not compensable by damages; the balance of convenience favoured the Defendant.
Costs
The costs of the Notice of Motion application dated 6th November, 2024 shall be in the cause.
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.
That the Notice of Motion application dated 6th November, 2024 be and is hereby found to lack merit and the same is dismissed.
That the above notwithstanding, based on “the Doctrine of Lins Pendents”, an order of Status Quo to be maintained do issue restraining both the Plaintifis/Applicants and Defendants/ Respondents
That the cost of the Notice of Motion application dated 6th November, 2024 shall be in the cause.
In view of the foregoing, in as much as I find the application by the Plaintifis/Applicants unmerited, I make an order for status quo pending the hearing and determination of the suit.
Clearly, regarding this first condition, the Plaintifis/ Applicants have not demonstrated a prima facie case with a probability of successat the trial as enunciated in the case of “Giella -Versus - Cassman Brown & Co. Ltd (Supra)”.
Issues in the judgment
#The final status quo order identifies a different parcel from the suit property described in the pleadings and application.
The judgment states the balance of convenience favours the Defendant yet concludes there is a lower risk in granting a temporary injunction, and ultimately issues a status quo order instead.
The analysis headings mislabel the costs issue as 'Issue c)' although only two issues were framed.
The costs analysis refers to Section 27(1) of the 'Civil Procedure Rules' rather than the Civil Procedure Act.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lewa & 51 others v Mbogo (Environment & Land Case E069 of 2024) [2025] KEELC 3312 (KLR)", Case Analysis (2025). Notice of Motion application dated 6th November, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3312/eng@2025-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.