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ELCPartially AllowedNotice of Motion dated 6th November 2024

Maringa & 21 others v Kanyi & 2 others (Environment & Land Case E037 of 2024) [2025] KEELC 3407 (KLR)

Environment and Land Court of Kenya
25 April 2025
6,063 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa stopped 21 homebuyers' units from being sold or auctioned after finding they paid in full but never got promised leases.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 6th November 2024 brought by twenty-one purchasers of maisonette units in the Serena Court B estate, developed off-plan by the 1st Defendant through his real estate business. The purchasers paid the full purchase prices, took possession and occupation of their units, and were contractually entitled under Clause 4.0 of the sale agreements to 99-year sub-leases which were never registered. A survey report dated 22nd August 2023 revealed that the suit properties stood on plot 22068/l/MN rather than the plot represented in the agreements, that the registered owner was the 2nd Defendant - a company whose sole shareholder and director is the 1st Defendant - and that the property had been charged to the 3rd Defendant to secure loans of Kshs 39,000,000 and a further charge of Kshs 9,100,000, without the purchasers' consent and years after they had taken occupation. Fearing sale by public auction, the purchasers sought a temporary injunction restraining disposal, leasing, renting or interference with their occupation pending the hearing of the main suit. Framing two issues under Order 40 Rule 1, the court applied the Giella v Cassman Brown principles as sequenced in Nguruman Limited, found a prima facie case with probability of success, held the injury would be irreparable since occupation and ownership rights could not be adequately compensated in damages, and found the balance of convenience favoured preserving the property. The application was allowed in its entirety, a temporary injunction issued pending hearing and determination of the main suit, a pre-trial conference fixed for 7th May 2025, and costs were placed in the cause rather than awarded against the Defendants.

Questions the Court framed

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

  1. 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. 2.Who will bear the costs of the Notice of Motion application dated 6th November 2024

Key legal issues

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01

Whether the applicants satisfied the Giella v Cassman Brown principles for a temporary injunction

Holding

Yes - a prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience in their favour were all established

Reasoning

The court found purchasers who paid full purchase prices, took possession and occupation of maisonette units, and were never granted the promised 99-year sub-leases. The plot was charged by the 1st Defendant's company to secure loans of Kshs 39,000,000 and Kshs 9,100,000 without the purchasers' consent. Damages would be inadequate given occupation rights and threatened eviction, and the balance of convenience favoured preserving the property until trial.

02

Whether an interlocutory injunction application requires final findings of contested facts

Holding

No - the court weighs only the relative strength of the parties' cases at the interlocutory stage

Reasoning

Relying on Mbuthia v Jimba Credit Corporation Ltd and Edwin Kamau Muniu v Barclays Bank of Kenya Ltd, the court reiterated that at interlocutory stage it does not make final findings of contested facts and law but only assesses whether the applicant meets the usual criteria for injunctive relief.

p. 10

Legal principles established

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  • Where purchasers have paid the full purchase price and are in open occupation, and the property is charged without their consent, they may demonstrate a prima facie case warranting a temporary injunction to preserve the property
  • Costs follow the event and are at the discretion of the court under Section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.The Notice of Motion application dated 6th November 2024 be and is hereby found to have merit and is allowed
  2. 2.An order of temporary injunction restraining the Defendants, their officers, agents, employees, assigns or any person acting on their behalf from disposing of, leasing, renting or in any manner dealing with or interfering with the Plaintiffs' use, ownership and quiet occupation of property known as Sub-Division 22068/l/MN, including from selling, auctioning or otherwise disposing of the suit properties erected thereon, pending hearing and determination of the main suit
  3. 3.Mention on 7th May 2025 before Justice Olola for a Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010
  4. 4.Costs of the Notice of Motion dated 6th November 2024 shall be in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction under the Civil Procedure Act, Cap. 21 and Order 40 Rules 1 & 2, Order 51 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Costs of the application to be borne by the Defendants jointly and severally

The court instead elected to have costs in the cause

p. 13

Costs

Costs of the Notice of Motion application dated 6th November 2024 shall be in the cause

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.

That an order of Temporary injunction do issue restraining the Defendants either by themselves, officers, agents, employees, assigns, principles or any person acting on their behalf from disposing of, leasing, renting, or in any manner whatsoever dealing with or interfering with the Plaintiffs' use, ownership and quiet occupation of all the property known as Sub - Division 22068/l/MN
p. 13Final orders - temporary injunction granted
That the Notice of Motion application dated 6th November, 2024 be and is hereby found to have merit and is allowed.
p. 13Final orders - application allowed
That the cost of the Notice of Motion application dated 6th November, 2024 shall be in the cause.
p. 14Costs
First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.
p. 8Injunction principles - Giella v Cassman Brown
I strongly find that the Plaintiffs/ Applicants have met the criteria for grant of orders of temporary injunction.
Court's finding on the injunction threshold
The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.
p. 12Balance of convenience

Issues in the judgment

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minor

The costs heading misstates the date of the application, referring to a Notice of Motion dated 27th May, 2024 when the application before the court is dated 6th November, 2024

minor

The judgment inconsistently identifies the plot number on which the suit properties are erected, at one point stating the survey revealed they sit on Plot 22068/IV/MN rather than 22068/l/MN

minor

The court states it could not access the parties' written submissions yet the application was directed to be disposed of by written submissions

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, "Maringa & 21 others v Kanyi & 2 others (Environment & Land Case E037 of 2024) [2025] KEELC 3407 (KLR)", Case Analysis (2025). Notice of Motion dated 6th November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3407/eng@2025-04-25

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