Monga (Suing on Behalf of the Family of Samson Matinde) v Masero (Environment and Land Case 034 of 2025) [2025] KEELC 7750 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a land claimant's injunction bid because he couldn't prove he'd occupied the land long enough for an adverse possession claim.
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 applicant has satisfied the principles for the grant of a temporary injunction
- 2.Who to bear the costs of the application
Key legal issues
#Whether the applicant established a prima facie case for a temporary injunction
No prima facie case was established; the applicant did not demonstrate apparent occupation and use of the suit land for the statutory period, and the survey report relied on was inadmissible hearsay.
The applicant claimed occupation and cultivation exceeding twelve years but gave no evidence of when occupation began. The respondent's OB records, demand letter and Chief's letter showed recent, intermittent encroachment resisted by the respondent. The surveyor's conclusion that the family had resided on the land 'since birth' was biased hearsay. Applying Mrao, no apparent infringement of a right was demonstrated at the interlocutory stage.
Whether the court should consider irreparable harm and balance of convenience
Having failed on the first limb, the applicant could not 'leap frog' to the other limbs of the Giella test.
Following Nguruman, the three Giella conditions are sequential, distinct hurdles. Once the prima facie case fails, the application fails automatically and the court need not consider irreparable injury or balance of convenience.
Legal principles established
#- The Giella conditions are sequential hurdles; failure on the first (prima facie case) ends the inquiry.
- An expert (surveyor) must act independently; biased or hearsay material in an expert report carries no evidential weight.
- Costs follow the event under Section 27 of the Civil Procedure Act.
Court orders
#- 1.Application for temporary injunction dismissed - the applicant failed to establish a prima facie case
- 2.Inhibition order already granted on land parcel no. BUKIRA BWISABOSA/847 remains registered pending hearing and determination of the Originating Summons
- 3.Applicant to bear the costs of the application
- 4.Suit to be mentioned on 17th December 2025 to confirm compliance with Order 11 of the Civil Procedure Rules; trial bundles to be filed and exchanged within twenty-one (21) days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction under the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules, 2010 (interlocutory injunction application)
Relief refused
#Temporary injunction restraining the respondent from trespassing, building, fencing, cultivating, evicting or otherwise interfering with the suit property
The applicant failed to establish a prima facie case; the court declined to consider the remaining limbs of the Giella test
Costs
The Applicant, having not succeeded in the application, shall bear its costs.
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.
It is so ordered.
On the basis of the foregoing, I find and hold that the applicant has not established a prima facie case.
The Applicant having not succeeded in this application shall bear its costs.
If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.
This suit is to be mentioned on 17th December 2025 to confirm compliance with Order 11 of the Civil Procedure Rules. Trial bundles should be filed and exchanged within the next twenty-one (21) days.
Issues in the judgment
#The suit property is inconsistently identified as BUKIRA BWISABOSA/847 in prayer (c) and BUKIRA BWOSABOSA/487 in prayer (d), and the relief sought in the body differs from the injunction prayer as framed.
The judgment refers to the respondent with both feminine and masculine pronouns inconsistently ('She maintained' then 'He deponed further').
The court records that it granted an inhibition order in the operative analysis, though the listed issues concerned only a temporary injunction and costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monga (Suing on Behalf of the Family of Samson Matinde) v Masero (Environment and Land Case 034 of 2025) [2025] KEELC 7750 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7750/eng@2025-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.