Mbithi & 16 others v Paul Mboko Mutua, John Bankosky Kitonga, Arthur Kitonga (Sued as the Registered Trustees of the Redeemed Gospel Church Inc) & 5 others (Environment and Land Case E007 of 2023) [2026] KEELC 1459 (KLR)
The bottom line
#A Kenyan land court refused to freeze Emali plots because the applicants weren't in possession and any loss could be paid as damages.
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 Applicants have established that they have a prima facie case to warrant issuance of an injunction
Key legal issues
#Whether the Applicants established a prima facie case to warrant a temporary injunction
The application was dismissed. The Applicants are not in possession of the suit property; the Respondents were allotted the land in 1994 and hold title which they have subdivided and partly sold to third parties; any injury is compensable in damages; and the Applicants already enjoy an injunction in a parallel suit in the Makindu SPM court.
Applying Giella v Cassman Brown, the court found the Applicants failed at the first hurdle: on the material placed before it, no prima facie case was demonstrated. The Applicants admitted allotment in 1999, five years after the Respondents' 1994 allotment, and were out of possession. The court also noted the existing injunction in Makindu MCEL Case No. 52 of 2021, questioned what further orders were sought, and held damages would suffice, declining to consider the balance of convenience.
Legal principles established
#- The principles for grant of a temporary injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience if in doubt
- A party out of possession whose alleged injury is compensable in damages cannot obtain a temporary injunction, particularly where it already holds an injunction in a parallel suit
Court orders
#- 1.The Applicants' notice of motion dated 13th October 2023 seeking a temporary injunction was dismissed with costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not expressly stated; the court exercised its original civil jurisdiction over land disputes (Environment and Land Court)
Relief refused
#Temporary injunction restraining the 1st to 3rd Defendants from constructing, selling, transferring or dealing with Emali Township Block 126/1-126/4 pending determination of the main suit
No prima facie case established; Applicants are not in possession; injury compensable in damages
The other substantive reliefs sought in the suit (permanent injunction, declarations of trust/void titles, cancellation of titles, demolition of structures, mesne profits) were not before the court at this interlocutory stage
Only the interlocutory injunction application was determined
Costs
The application is dismissed with costs to the Respondents
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.
The Applicants are not in the suit property. The Respondents were allotted the suit property in 1994. The Applicants state that they were allotted their plots in 1999.
On the material placed before me, I do not see what prima facie case the Applicants have.
I therefore find that the Applicants’ application is devoid of merit. The same is dismissed with costs to the Respondents. It is so ordered.
Issues in the judgment
#Internal date inconsistency in the submissions: 'The Applicants filed their submissions dated 27th November 2025. The Respondents had filed their submissions dated 22nd January, 2024.' The Applicants' submissions are dated 2025, which postdates the motion and appears to be a typographical error for 2023.
The judgment does not state the court's station or the case number of the suit in which the ruling is delivered.
Inconsistency in the description of the parties' roles: the heading refers to 'Plaintifis/Applicants' and 'Defendants/Respondents', and paragraph 5 of the motion refers to the 4th and 5th parties as 'Respondents/Defendants', though the cause is framed as a plaint with plaintiffs and defendants.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbithi & 16 others v Paul Mboko Mutua, John Bankosky Kitonga, Arthur Kitonga (Sued as the Registered Trustees of the Redeemed Gospel Church Inc) & 5 others (Environment and Land Case E007 of 2023) [2026] KEELC 1459 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1459/eng@2026-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.