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ELCPartially AllowedELC Case (Notice of Motion dated 28th October 2024 and Notice of Motion dated 3rd March 2025)· [2025] KEELC 6501 (KLR)

Muna v Ouko & another (Environment and Land Case E445 of 2024) [2025] KEELC 6501 (KLR)

Environment and Land Court
1 October 2025
3,955 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The court protected a family that has occupied Nairobi land for over 50 years, refusing eviction until the ownership dispute is fully heard.

What this practically means

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Executive summary

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This first-instance ruling of the Environment and Land Court at Nairobi (Christine Ochieng, J) determined two jointly heard applications arising from a long-running land dispute over LR Number 3589/49. The Plaintiff, who claimed to be the beneficial owner through a Certificate of Confirmation of Grant with Will of her late husband, Musa Muna Kasanga, who allegedly purchased the parcel from Dr. Hugh Skinner in 1972 under agreements witnessed by the then registered owner Jason Atinda Ouko, sought a temporary injunction restraining the Defendants - the personal representatives of the Ouko estate - from evicting her or dealing with the land. The Defendants opposed, asserting registered proprietorship via a Certificate of Lease, contending the suit was res judicata in light of ELC No. 1531 of 2007 in which the late Kasanga's counterclaim abated, and sought striking out of the plaint, discharge of ex parte orders and eviction. The court held the suit was not res judicata because the abated counterclaim was never heard and determined on merit, and declined to strike out the plaint. Applying Giella v Cassman Brown and Mrao v First American Bank, it found a prima facie case and irreparable harm given the Plaintiff's occupation of over four decades, the 1969 and 1972 sale agreements, and the fact that Ouko never evicted her husband in his lifetime, issues requiring viva voce evidence. The Plaintiff's application was allowed with injunctions; the Defendants' motion was dismissed, including the eviction orders which would have been final relief. Costs were in the cause.

Key legal issues

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01

Res judicata and striking out

Holding

The suit is not res judicata; the abatement of the counterclaim in ELC No. 1531 of 2007 meant it was not heard and finally decided on merit, so the plaint should not be struck out

Reasoning

Applying Section 7 of the Civil Procedure Act and the John Florence test, the court found the prior counterclaim abated for failure to substitute the deceased, hence no final determination on merit. Given the overlapping subject matter but representation of respective deceased estates and the presence of third-party purchasers now in possession, the court held the dispute required a full hearing rather than summary dismissal.

p. 6
02

Temporary injunction

Holding

The Plaintiff established a prima facie case and irreparable harm warranting an interlocutory injunction; the ex parte orders of 29th October 2024 stand

Reasoning

Applying Giella v Cassman Brown and Mrao v First American Bank, the court noted the Plaintiff's occupation for over four decades, the 1969 and 1972 sale agreements (one witnessed by the registered owner Jason Ouko), and that Ouko never evicted the Plaintiff's husband in his lifetime. These contested issues required viva voce evidence, establishing a prima facie case and irreparable harm.

p. 7
03

Eviction orders

Holding

Eviction orders at the interlocutory stage were refused as they would be final relief rendering the suit nugatory

Reasoning

The court reasoned that granting the Defendants' sought eviction and vacant possession would effectively determine the entire suit finally, leaving nothing for trial. Since the Plaintiff had established a prima facie case with irreparable harm, the balance favoured maintaining the status quo pending full hearing.

p. 7

Legal principles established

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  • An abated suit or counterclaim is not a determination on the merit and cannot found a plea of res judicata
  • A plaint should not be summarily dismissed unless it is hopeless and discloses no reasonable cause of action curable by amendment

Court orders

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  1. 1.Plaintiff's Notice of Motion dated 28th October 2024 allowed - temporary injunction restraining the Defendants from threatening, harassing and evicting the Plaintiff and other dwellers on LR Number 3589/49 pending hearing and determination of the suit
  2. 2.Temporary injunction restraining the Defendants from transferring, charging, advertising, trespassing, encroaching, entering, accessing, interfering, damaging, disposing, occupying, alienating or otherwise dealing with LR Number 3589/49 pending hearing and determination of the suit
  3. 3.Defendants' Notice of Motion dated 3rd March 2025 dismissed - ex parte orders of 29th October 2024 not discharged
  4. 4.Plaint not struck out; suit to be set down and heard on merit
  5. 5.Eviction orders sought by the Defendants refused
  6. 6.Costs in the cause
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land LR Number 3589/49

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, "Muna v Ouko & another (Environment and Land Case E445 of 2024) [2025] KEELC 6501 (KLR)", Case Analysis (2025). ELC Case (Notice of Motion dated 28th October 2024 and Notice of Motion dated 3rd March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6501/eng@2025-10-01

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