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ELCDismissedNot stated in judgment

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)

Environment and Land Court
12 March 2026
1,435 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court (Obaga J) determined a notice of motion dated 13th October 2023 in which the Plaintiffs/Applicants, said to litigate under Katese Welfare Society, sought a temporary injunction restraining the 1st to 3rd Defendants/Respondents from constructing on, selling, transferring or dealing with Emali Township Block 126/4, 126/3, 126/2 and 126/1 pending the hearing of the main suit. The Applicants claimed they were allotted various plots by the defunct Masaku County Council between 1990 and 1999, took possession, and that the Respondents later colluded to have the land registered as Emali Township Block 1/126, subdivided and evicted them. The Respondents opposed, asserting a 1994 government allotment to the 1st Respondent, subsequent subdivision and sale to third parties, and that the Applicants had obtained an injunction in a parallel pending suit, Makindu SPM ELC Case No. 52 of 2021, making this suit an abuse of process. The court framed a single issue: whether the Applicants had established a prima facie case warranting an injunction. Applying Giella v Cassman Brown, the court held the Applicants, being out of possession and facing an injury compensable in damages, had demonstrated no prima facie case, and noted their existing injunction in the Makindu suit. The application was dismissed with costs to the Respondents. The substantive claims in the main suit remain pending.

Questions the Court framed

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

  1. 1.Whether the Applicants have established that they have a prima facie case to warrant issuance of an injunction

Key legal issues

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01

Whether the Applicants established a prima facie case to warrant a temporary injunction

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Applicants' notice of motion dated 13th October 2023 seeking a temporary injunction was dismissed with costs to the Respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated; the court exercised its original civil jurisdiction over land disputes (Environment and Land Court)

Relief refused

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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

p. 4

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

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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.

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.
p. 4Possession and competing allotments
On the material placed before me, I do not see what prima facie case the Applicants have.
p. 4Failure to establish prima facie case
I therefore find that the Applicants’ application is devoid of merit. The same is dismissed with costs to the Respondents. It is so ordered.
p. 4Disposition - dismissal of the motion

Issues in the judgment

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minor

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.

minor

The judgment does not state the court's station or the case number of the suit in which the ruling is delivered.

minor

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

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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, "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.