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ELCDismissedNot stated in the judgment (Notice of Motion dated 5th February 2025)

Kago v Cheboi (Environment and Land Case E010 of 2025) [2025] KEELC 5821 (KLR)

Environment and Land Court of Kenya
17 July 2025
6,325 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff/Applicant, David Mungai Kago, moved the Environment and Land Court at Kwale by Notice of Motion dated 5th February 2025, under Article 40 of the Constitution, Section 3A of the Civil Procedure Act, Order 40 and Order 51 of the Civil Procedure Rules and Section 80(1) of the Environment and Land Court Act, seeking a temporary injunction restraining the Defendant, Marion Jelagat Cheboi, from interfering with, selling, transferring or alienating Kwale/Ramisi Phase 11 SS/4488 pending the hearing of the suit. The Applicant alleged that in engaging the Defendant, who had presented herself as a property agent through a YouTube channel, to purchase 1.228 Ha (one acre) from Saidi Ferusi Mwavumbaji for Kshs. 3,000,000, the Defendant fraudulently procured the sub-division of the parcel and acquired one 0.2 Ha portion for herself at only Kshs. 500,000 while the Applicant received just 0.2 Ha. The Defendant denied the fraud, asserting the Applicant knowingly purchased 0.2 Ha under executed sale agreements. The court framed three issues: the threshold for a temporary injunction, entitlement to the reliefs, and costs. Applying the Giella principles as reinforced in Nguruman, the court found no prima facie case - both sale agreements dated 30th April 2024 expressly described a 0.2 HA portion, and no evidence of misrepresentation was produced, fraud being a matter the Applicant had to prove under Sections 107-109 of the Evidence Act. Irreparable harm was also not demonstrated. The application was dismissed with costs to the Defendant, and directions for compliance with Orders 7 and 11, a pre-trial conference on 29th October 2025 and a hearing on 22nd January 2026 were issued.

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 application dated 5th February, 2025 met the threshold of granting the temporary injunctive orders.
  2. 2.Whether the parties herein were entitled to the reliefs sought herein.
  3. 3.Who bears the costs of the application?

Key legal issues

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01

Whether a prima facie case was established

Holding

No prima facie case was established; the evidence fell short of showing misrepresentation on price or acreage

Reasoning

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.

p. 9
02

Whether the Applicant would suffer irreparable harm not compensable in damages

Holding

Irreparable harm was not demonstrated

Reasoning

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.

p. 10
03

Whether the balance of convenience favoured the Applicant

Holding

It was unnecessary to consider the third limb as the first two had failed

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 5th February 2025 was dismissed.
  2. 2.All parties granted 21 days to fully comply with the provisions of Orders 7 and 11 of the Civil Procedure Rules, 2010.
  3. 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. 4.Costs of the application awarded to the Defendant/Respondent, to be borne by the Plaintiff/Applicant.

The bench

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

majority

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

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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

p. 9

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

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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 the Notice of Motion application dated 5th February 2025 has no merit and thus be and is hereby dismissed.
p. 12Dismissal of the injunction application - final orders
That the costs of the application to be awarded to the Defendant/Respondent to be borne by the Plaintifi/Applicant herein.
p. 12Costs of the application - final orders
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'.
p. 9Failure to establish a prima facie case
Should one of them fail, then all the others collapse.
p. 9Sequential application of the Giella conditions

Issues in the judgment

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minor

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

minor

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

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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, "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.