Micheru v Abdi & 2 others (Land Case E003 of 2025) [2026] KEELC 943 (KLR)
The bottom line
#The Environment & Land Court dismissed Kenya Power's jurisdictional objection and protected a registered landowner with injunctions barring trespass and unauthorised power connections.
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 Preliminary Objection dated 13th March, 2025 by the 3rd Defendant meets the threshold and is sustainable in accordance with the Law and Precedents
- 2.Whether the Preliminary Objection dated 13th March, 2025 has any merit whatsoever to this case
- 3.Whether the Applicant has made a case for grant of the injunction orders sought pursuant to the provisions of Order 40 of the Civil Procedure Rules
- 4.Who bears the costs of the application
Key legal issues
#Whether the 3rd Defendant's preliminary objection on jurisdiction under the Energy Act, 2019 is sustainable
The preliminary objection is dismissed as it does not raise a pure point of law; the gist of the matter is use and occupation of land, with no dispute between the Plaintiff and the 3rd Defendant
The court applied the Mukisa Biscuits and Oraro v Mbaja tests. The dispute concerns occupation and development of the suit land by the 1st and 2nd Defendants; the prayer against the 3rd Defendant is only cautionary, to restrain power connections without the owner's consent. There is no evidence of any transaction between the Plaintiff and the 3rd Defendant within the Energy (Complaints and Disputes Resolution) Regulations, so the Energy and Petroleum Tribunal dispute-resolution route is not triggered.
Whether the Plaintiff established a prima facie case
Yes - the Plaintiff produced a title deed and certified green card, entitling him to protection of his registered title pending trial
Relying on Sections 24 and 26(1) of the Land Registration Act and the Mrao definition of a prima facie case, the court held that a title deed is prima facie proof of ownership good against the world. The Plaintiff's title, allegedly issued on 14th August 2009, established an apparently infringed right calling for rebuttal.
Whether irreparable harm and balance of convenience favour the Plaintiff
Yes - developments on the suit land by parties other than the title holder demonstrate irreparable loss, and the balance of convenience favours preservation of the property
The 2nd Defendant's own replying affidavit attached images of developments erected on the suit property despite the Plaintiff holding title. The court found this showed developments by another party, justifying apprehension of power connections and further alienation, and satisfying the Kogo test of irreparable injury and the balance-of-convenience inquiry.
Who bears the costs
Costs follow the event; the Plaintiff, having succeeded on both the objection and the application, is awarded costs
Applying Section 27(1) of the Civil Procedure Act and the authorities on costs following the event, the court held the successful Plaintiff entitled to costs. The objection by the 3rd Defendant was dismissed, and the costs were made payable by the 3rd Defendant in the cause, i.e. to abide the conclusion of the suit.
Legal principles established
#- A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts have to be ascertained
- The three Giella conditions for an interlocutory injunction are sequential hurdles that must each be surmounted
- A registered proprietor's title is prima facie indefeasible and the holder is entitled to defend it pending full hearing
Court orders
#- 1.The Notice of Preliminary Objection dated 13th March, 2025 raised by the 3rd Defendant is dismissed for lack of merit
- 2.Temporary injunction granted pending the hearing of the suit restraining the 1st and 2nd Defendants from further demarcating, occupying, fencing, erecting structures or carrying out acts of construction with the aim of alienating or disposing of Kwale/Pungu Fuel/63 (approx. 1.1 hectares) to third parties
- 3.The 3rd Defendant is restrained from causing any connection of power lines or accessories and accepting installation for persons claiming ownership of Kwale/Pungu Fuel/63 without the legal consent of the registered owner
- 4.Mention on 30th April, 2026 for Pre-Trial Conference under Order 11 of the Civil Procedure Rules; hearing on 8th October, 2026
- 5.Costs of the objection and application awarded to the Plaintiff, to be borne by the 3rd Defendant in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment & Land Court over the suit land Kwale/Pungu Fuel/63, with the application brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010
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 Preliminary Objection dated 13th March, 2025 raised by the 3rd Defendant herein be and is hereby dismissed for lack of merit.
That pending the hearing of this suit, there be temporary injunction orders granted restraining the 1st and 2nd Defendants whether by themselves, servants of agents or persons from claiming title under them or otherwise undertaking any further demarcating
That an order made herein retraining the 3rd Defendant from causing any connection of power lines or accessories and accepting installation to the people claiming ownership of all that parcel of land Known as Land Reference Numbers Kwale/Pungu Fuel/63 without the legal consent of the registered owner as stipulated by Law.
A preliminary Objection is in the nature of what used to be a demurer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
The Certificate of title issued by the Registrar upon registration, or to a purchaser of land upon transfer on transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner
The existence of a prima facie case does not permit "leap-frogging" by the applicant to injunction directly without crossing the other hurdles in between".
That costs of the objection and application to be awarded to the Plaintifi and be borne by the 3rd Defendant in the cause.
Issues in the judgment
#Plaintiff's name appears inconsistently in the judgment - 'Abdulswamad Mwangi Gicheru' in the introduction but 'Abdulswamad Mwangi Mucheru' when describing the supporting affidavit
Date of the 3rd Defendant's preliminary objection given as 13th March, 2025 in the analysis but as 3rd March, 2025 in the costs discussion
The court reserved ruling for 17th June, 2025 and states it was delivered on 8th October, 2025, yet the ruling is signed and dated 12th February, 2026 and directs a pre-trial mention on 30th April, 2026
Inconsistency in the costs disposition - paragraph 75 states the Plaintiff's costs are to abide the conclusion of the suit, while order (e) fixes them on the 3rd Defendant in the cause
Application submissions are described as dated 26th June, 2023 although the application itself is dated 15th January, 2025
Paragraph numbering in the judgment is irregular, with two paragraphs numbered 58 and paragraph 56 following 47 out of sequence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Micheru v Abdi & 2 others (Land Case E003 of 2025) [2026] KEELC 943 (KLR)", Case Analysis (2026). ELC Case at Kwale (Notice of Motion dated 15th January 2025); suit number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/943/eng@2026-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.