Nzwili (Suing as the Legal Administrator of the Estate of Samuel Nzwili Nzioki - Deceased) ((Suing as the Legal Administrator of the Estate of Samuel Nzwili Nzioki - Deceased)) v Mua & 2 others (Environment & Land Case E017 of 2025) [2025] KEELC 3807 (KLR)
The bottom line
#The Environment and Land Court in Makueni refused to stop an eviction because the applicant's claim mirrored one already rejected on appeal.
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 Applicant has demonstrated a prima facie case with probability of success warranting injunctive relief
- 2.Whether the Applicant would suffer loss incapable of compensation in damages
- 3.Where the balance of convenience lies
Key legal issues
#Whether the Applicant established a prima facie case with probability of success
The court found no prima facie case because the Applicant's interest lies in plot 555, not plot 1/198, and his claim mirrors that of the unsuccessful appellant in ELC No. 98 of 2017, whose appeal was dismissed on 7th July 2023.
The court took judicial notice of ELC No. 98 of 2017, in which the 1st Respondent succeeded and was granted orders over plot 1/198. The 1st Defendant therein appealed to the Court of Appeal, which dismissed the appeal. Since the Applicant's claim replicates that failed claim, he cannot demonstrate a prima facie case, even though he was not a party to that suit.
Whether damages would be an adequate remedy and where the balance of convenience lies
Any loss from demolition would be compensable in damages, and the balance of convenience favours the 1st Respondent, whose ownership of plot 1/198 has been affirmed by a higher court.
The court applied the second and third Giella principles. Even if the Applicant ultimately succeeded after demolition, his loss could be compensated in damages. The balance of convenience favoured the Respondent, whose lawful ownership had been affirmed on appeal, so the injunction could not issue.
Legal principles established
#- A party cannot circumvent a judgment affirmed on appeal by filing a separate suit seeking identical relief through injunction to stop execution of that judgment
- Injunctive relief is granted only where the Applicant establishes a prima facie case with probability of success; in doubt, the balance of convenience governs
Court orders
#- 1.The application dated 16th April, 2025 dismissed with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to grant interlocutory injunctions (Giella -vs- Cassman Brown principles)
Relief refused
#Temporary injunction restraining enforcement of the order of 24th January 2024 issued 2nd February 2024 (demolition/eviction on Plot 555 Emali Market)
No prima facie case; the orders sought to be restrained relate to plot 1/198, and the Applicant's claim mirrors a claim that failed on appeal
Mandatory injunction restraining eviction and demolition pending determination of the suit
Any damage from demolition is compensable in damages and the balance of convenience favours the 1st Respondent
Costs
No orders as to costs - 'The same is dismissed with 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.
This being the case, I find that the Applicant has not demonstrated that he has a prima facie case with probability of success.
the balance of convenience tilts in favour of the 1st Respondent who has been found in similar circumstances that he is the lawful owner of plot 1/198 which decision has been afirmed by a higher court than this court.
I therefore find that this application is devoid of merit. The same is dismissed with no orders as to costs. It is so ordered.
Issues in the judgment
#The judgment does not state the case number of the present suit, only the date of the Notice of Motion (16th April, 2025).
Typos/OCR errors throughout the judgment, e.g. 'Plaintifi', 'grand of injunctions', 'Giellla'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzwili (Suing as the Legal Administrator of the Estate of Samuel Nzwili Nzioki - Deceased) ((Suing as the Legal Administrator of the Estate of Samuel Nzwili Nzioki - Deceased)) v Mua & 2 others (Environment & Land Case E017 of 2025) [2025] KEELC 3807 (KLR)", Case Analysis (2025). ELC Case (Notice of Motion dated 16th April, 2025), Makueni. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3807/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.