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ELCPartially AllowedNotice of Motion dated 6/05/2024· [2025] KEELC 4221 (KLR)

Mbugua v Mwaniki (Environment & Land Case E184 of 2024) [2025] KEELC 4221 (KLR)

Environment and Land Court
28 May 2025
MOMogeni
3,083 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer in occupation of purchased land won court protection blocking its sale or borrowing until the ownership dispute is fully decided.

What this practically means

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Executive summary

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The Plaintiff moved the Environment and Land Court at Thika by Notice of Motion dated 6/05/2024 seeking a temporary injunction and a prohibitory injunction restraining the Defendant from dealing with, alienating or creating third-party interests over parcels known as Nairobi/block 122/288 and Nairobi/block 141/922, pending hearing of the suit. The Applicant claimed she purchased 0.0754Ha of the suit parcel for Kshs. 2,000,000 under a sale agreement dated 30/10/2019, took occupation and developed it, but the Defendant refused to transfer. She feared further borrowing over the property. The Defendant denied the sale agreement as a forgery, disowned dealings with the Applicant, and claimed she had instead agreed with one Anthony Maina that upon settling her Dimkes Sacco loan, half the parcel would be transferred; she declined to sign a transfer covering the whole parcel. The Court, applying the Giella v Cassman Brown tests and Order 40 of the Civil Procedure Rules, held it could make no conclusive findings at the interlocutory stage, but found the Applicant in occupation had demonstrated an interest and hence a prima facie case; that her removal would cause irreparable harm not compensable in damages; and that the balance of convenience favoured preserving the status quo. Relying on Section 68 of the Land Registration Act, the Court granted an inhibition over LR Nairobi/block 122/288 until the suit is determined and an injunction over the same property for one year. Costs were ordered to abide the outcome of the main suit, with pre-trial conference set for 24/06/2025.

Key legal issues

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01

Prima facie case

Holding

The Applicant established a prima facie case with probability of success

Reasoning

The Defendant is the registered owner but the Applicant is in occupation of a portion of the suit land pursuant to an alleged sale agreement, giving her an interest. The genuineness of the sale agreement is disputed but cannot be resolved at interlocutory stage. Her rights over the portion she occupies can only be curtailed in accordance with the law.

p. 5
02

Irreparable injury

Holding

Damages would not adequately compensate the Applicant if deprived of occupation

Reasoning

The Applicant is in occupation and has carried out developments on the property. If removed and ultimately successful at trial, the harm suffered would not be compensable in damages, as infringement of a crystallized right over land cannot be equated to monetary compensation.

p. 5
03

Balance of convenience

Holding

The balance of convenience favours maintaining the status quo

Reasoning

The matter raises serious conflicts of fact that must be resolved at trial. A temporary injunction preserves the suit property and the rights of the parties pending determination, so maintaining the status quo carries the lower risk of injustice.

p. 5
04

Order of inhibition

Holding

An inhibition is warranted as the suit property is in danger of alienation

Reasoning

The Applicant avers the Defendant has been taking loans over the property and may initiate discharge processes. The Defendant disowns the sale agreement. The property is in danger of being alienated, and no prejudice would be caused to the Defendant by an inhibition order pending trial.

p. 6

Legal principles established

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  • In an interlocutory application the court makes no conclusive findings of fact or law on contradictory affidavit evidence
  • Conditions for granting an interlocutory injunction: prima facie case, irreparable injury, balance of convenience
  • A registered owner is deemed absolute and indefeasible proprietor under Section 26(1) of the Land Registration Act
  • An inhibition order under Section 68 of the Land Registration Act bars registration of transactions over disputed property pending trial

Court orders

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  1. 1.Order of inhibition in terms of prayer No. 3 in respect of LR Nairobi/block 122/288 until the suit is heard and determined
  2. 2.Order of injunction in terms of prayer No. 2 in relation to LR Nairobi/block 122/288 for a period of one year
  3. 3.Costs of the Application to abide the outcome of the main suit
  4. 4.Pre-trial Conference on 24/06/2025
Jurisdiction invoked
Article 40(1)(b) and 162(2) of the Constitution of Kenya, 2010; Section 38(1) of the Land Act No. 6 of 2012; Section 13 of the Environmental & Land Court Act (2011)

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, "Mbugua v Mwaniki (Environment & Land Case E184 of 2024) [2025] KEELC 4221 (KLR)", Case Analysis (2025). Notice of Motion dated 6/05/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4221/eng@2025-05-28

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