Kago v Cheboi (Environment and Land Case E010 of 2025) [2025] KEELC 5821 (KLR)
The bottom line
#A Kenyan land buyer claiming fraud lost his injunction because the signed sale agreement matched the title and he had no proof of misrepresentation.
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 application dated 5th February, 2025 met the threshold of granting the temporary injunctive orders.
- 2.Whether the parties herein were entitled to the reliefs sought herein.
- 3.Who bears the costs of the application?
Key legal issues
#Whether a prima facie case was established
No prima facie case was established; the evidence fell short of showing misrepresentation on price or acreage
The court examined the two sale agreements of 30th April 2024, both describing purchase of a 0.2 HA portion to be sub-divided from Kwale/Ramisi Phase II S.S/940. Both agreements were executed by the parties. The Applicant alleged fraud but produced no documentary evidence of pre-transaction communications showing misrepresentation; fraud must be proved by the person alleging it.
Whether the Applicant would suffer irreparable harm not compensable in damages
Irreparable harm was not demonstrated
The terms of the sale agreement were straightforward and unambiguous; the purchase price was stated and paid, the acreage stated and the title deed confirmed it. The Applicant signed the agreement in the presence of counsel and no fraud, coercion or intimidation was proved, so the injury was compensable in damages.
Whether the balance of convenience favoured the Applicant
It was unnecessary to consider the third limb as the first two had failed
Having found that neither a prima facie case nor irreparable harm was established, the court held that discussing the balance of convenience would be futile since the application had no foundation, consistent with the sequential application of the Giella principles.
Legal principles established
#- The three Giella conditions for an interlocutory injunction must be established sequentially; failure of one collapses the rest
- An application for injunction under Order 40 must be anchored on a substantive suit
- He who alleges fraud bears the burden of proving it under Sections 107, 108 and 109 of the Evidence Act
Court orders
#- 1.The Notice of Motion application dated 5th February 2025 was dismissed.
- 2.All parties granted 21 days to fully comply with the provisions of Orders 7 and 11 of the Civil Procedure Rules, 2010.
- 3.The matter to be mentioned on 29th October, 2025 for a Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010, with a hearing on 22nd January, 2026.
- 4.Costs of the application awarded to the Defendant/Respondent, to be borne by the Plaintiff/Applicant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 40 of the Constitution of Kenya, 2010; Section 3A of the Civil Procedure Act, Cap. 21; Order 40 Rules 1, 2 and 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 80(1) of the Environment and Land Court Act, 2011
Relief refused
#Temporary injunction restraining the Defendant from interfering with, selling, transferring, charging or alienating Kwale/Ramisi Phase 11 SS/4488 pending hearing of the suit
The Applicant failed to establish a prima facie case and irreparable harm; evidence fell short of establishing fraud or misrepresentation
Order that the Officer Commanding Ukunda Police Station enforce the orders sought
Injunction not granted, so the ancillary enforcement order could not issue
Costs
The costs of the application to be awarded to the Defendant/Respondent to be borne by the Plaintiff/Applicant.
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 5th February 2025 has no merit and thus be and is hereby dismissed.
That the costs of the application to be awarded to the Defendant/Respondent to be borne by the Plaintifi/Applicant herein.
Prior to hearing the case in a full trial, I am of the strong conviction that the evidence presented falls short of establishing "a prima facie case'.
Should one of them fail, then all the others collapse.
Issues in the judgment
#Internal contradiction: the defendant's replying affidavit is described as a '39 Paragraphed' affidavit in one place but the narrative earlier summarises it without indicating paragraph count consistency; more materially, the conclusion mislabels the costs issue as 'the second issue' when it was framed as the third issue
The suit property in the reliefs (Kwale/Ramisi Phase 11 SS/4488) appears variously rendered and the judgment contains multiple typographical errors (e.g. 'Plaintifi', 'sufier', 'ofier') affecting verbatim reliability
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kago v Cheboi (Environment and Land Case E010 of 2025) [2025] KEELC 5821 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 5th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5821/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.