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Katunge (Suing as the Legal Representative of the Estate of Josiah Musau Nzomo (Deceased)) & 2 others v Lonzi & 3 others (Environment and Land Case E041 of 2024) [2025] KEELC 6849 (KLR)

Environment and Land Court
9 October 2025
EOE. O. Obaga
2,686 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Makueni court blocked a registered landowner from interfering with settlers who had occupied and paid for the land for years, pending full trial.

What this practically means

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Executive summary

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The court ruled on a Notice of Motion dated 6th December 2024 by the Plaintiffs seeking a temporary injunction restraining the Defendants from trespassing on, alienating or interfering with their possession of land in Kiboko B Settlement Scheme, Makueni County, pending the hearing of the main suit. The Plaintiffs traced their claim to a letter of offer dated 15/11/2005 and letter of acceptance dated 22/5/2012 issued to the 1st Plaintiff's deceased husband, Josiah Nzomo, with purchase payments made by 19/10/2012, followed by onward sales to the 2nd Plaintiff (2017) and the 3rd Plaintiff. They asserted possession of over twenty years, evidenced by photographs of fencing, structures and grazing livestock, and alleged fraud in the registration of the 1st Defendant, who obtained a title deed on 13/12/2022. The 1st Defendant countered with his own chain of purchase from the original allottee's chain, re-allocation letters dated June 2013, payment of Kshs.11,210/=, and a discharge and transfer dated 25/8/2021, denying the Plaintiffs' possession. Applying the Giella v Cassman Brown criteria as restated in Nguruman, the court found a prima facie case with arguable issues given the competing claims, held the Plaintiffs would suffer irreparable harm given their established possession and the absence of evidence of the 1st Defendant's occupation, and found the balance of convenience favoured preserving the status quo. The application was allowed in terms of prayers 3 and 4: a temporary injunction issued restraining interference with the Plaintiffs' possession pending trial, with the OCS Makindu Police Station ordered to ensure compliance. Costs were left to abide the final outcome of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiffs/Applicants have met the legal threshold for issuance of the injunctive orders sought

Key legal issues

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01

Whether the Plaintiffs met the threshold for a temporary injunction under Order 40 Rule 1

Holding

Yes - the Plaintiffs established a prima facie case, irreparable harm, and the balance of convenience favoured maintaining the status quo; injunction granted in terms of prayers 3 and 4.

Reasoning

Both parties traced competing ownership claims to letters of offer and acceptance issued by the 3rd Defendant through the Settlement Fund Trustees. The Plaintiffs produced offer and acceptance letters, payment receipts, transfer consent and stamp duty receipts, plus photographs showing long possession with fencing, structures and grazing. The 1st Defendant, though the registered owner since 13/12/2022, produced no evidence of occupation. The court found the competing claims raised arguable issues and that possession should be preserved pending trial.

p. 5

Legal principles established

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  • Conditions for grant of an interlocutory injunction: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience
  • Definition of a prima facie case in civil applications
  • The three Giella conditions are sequential hurdles that must each be surmounted
  • At interlocutory stage the court does not determine issues with finality

Court orders

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  1. 1.Temporary injunction issued restraining the Defendants from trespassing, farming, alienating, offering for sale, selling, charging, transferring and/or interfering with the Plaintiffs' ownership and peaceful possession of land Parcel No. 158 Kiboko B Settlement Scheme measuring 1.77 hectares pending the hearing and determination of the main suit (prayer 3)
  2. 2.OCS Makindu Police Station ordered to ensure compliance of the orders issued in this application (prayer 4)
  3. 3.Prayers 1 and 2 marked as spent
  4. 4.Costs shall abide the final outcome of the suit

The bench

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

EO
majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010

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.

Seeing that both parties carry competing claims to the suit property, this Court is satisfied that a prima facie case raising arguable issues against the Defendants has been made by the Plaintifis.
p. 5Prima facie case
It is the finding of this court that the Plaintifis have established that they will sufier irreparable harm ensuing from the 1st Defendant’s actions should the invasion of the suit property go on unchecked.
p. 5Irreparable harm
Thus, the balance of convenience rests in keeping the status quo of the suit property in place as the respective ownership claims are investigated and evidence adduced during the trial of the case.
p. 6Balance of convenience
The upshot of the foregoing is that the Plaintifis have demonstrated merit in the instant application which is hereby allowed in terms of prayers 3 and 4. Costs shall abide the final outcome of the suit.
p. 6Disposition

Issues in the judgment

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material

The suit property is referred to inconsistently as Plot No. 158 Kiboko B Settlement Scheme in the prayers and as Plot No. 151 / Makueni/Kiboko B/151 in the body of the judgment and affidavits.

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, "Katunge (Suing as the Legal Representative of the Estate of Josiah Musau Nzomo (Deceased)) & 2 others v Lonzi & 3 others (Environment and Land Case E041 of 2024) [2025] KEELC 6849 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6849/eng@2025-10-09

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