Nabakhwana Co-operative Society Ltd v Lois Holdings Ltd & 2 others (Environment and Land Case E058 of 2025) [2026] KEELC 2745 (KLR)
The bottom line
#The Kitana Environment and Land Court refused to protect a farmers' co-operative occupying land it hadn't paid for, dismissing their injunction and awarding costs to the landowner.
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 established a prima facie case with a probability of success warranting a temporary injunction
- 2.Whether the applicant will suffer irreparable loss not compensable in damages
- 3.Where the balance of convenience lies
- 4.Whether the applicant made full and frank disclosure at the ex parte stage
- 5.Whether the applicant comes to equity with clean hands
Key legal issues
#Prima facie case
No prima facie case established; the applicant did not show it represents legitimate purchasers with enforceable rights, given non-compliance with the payment terms and absence of signed sale agreements
The court reviewed the settlement framework: 200 acres at Kshs. 400,000/= per acre, 10% deposit, balance within 547 days. Only Kshs. 12,570,000/= had been paid and no sale agreements were signed. Payment of consideration and a valid agreement are prerequisites to equitable relief for breach of contract, so the applicant's right was neither genuine nor apparent.
Irreparable harm
Not established, since the applicant and members had not complied with the agreement, leaving nothing to lose or fear
Irreparable injury must be real, apparent, substantial and demonstrable, and must be one not compensable by damages. Where the applicant had not performed its own obligations under the settlement, the court found no cognisable injury flowing from refusal of the injunction.
Balance of convenience
It favours the 1st respondent, who would suffer more if enjoined while the applicant occupies without paying consideration
The court weighed the hardship on each side. The applicant was occupying the land without paying the agreed consideration, while the registered owner's Article 40 property rights would be curtailed by an injunction. Convenience therefore lay in refusing the injunction.
Full disclosure and clean hands
The applicant failed to disclose material facts, including how many members had complied with the agreement, and came to equity with unclean hands
Relying on ex parte disclosure and clean-hands authority, the court held that an applicant must make the fullest possible disclosure of material facts and account well of itself. The applicant's failure to disclose compliance levels and its blame-shifting disqualified it from equitable discretion.
Effect of prior orders and litigation history
The applicant, a party to previous judgments and rulings, cannot seek orders that would render useless the 1st respondent's existing rights and mock previous and pending orders
Past litigation (Kitale ELC No. 77 of 2004 eviction orders, Kitale ELC No. 14 of 2021, and the succession mediation) produced binding outcomes. A judgment in rem binds all persons, and the applicant could not use fresh interlocutory relief to nullify those existing rights and orders.
Legal principles established
#- A temporary injunction applicant must satisfy the Giella v Cassman Brown conditions: prima facie case, irreparable harm, balance of convenience
- A party seeking ex parte or equitable relief must make full and frank disclosure; failure to disclose can lead to vacation of orders or striking out of the application
- A land sale agreement must comply with Section 3(3) of the Law of Contract Act as read with Section 38 of the Land Act to confer enforceable rights
- Equity only protects a purchaser who has been put in possession upon sale, and payment of consideration plus a valid sale agreement are prerequisites to equitable relief for breach of contract
- Courts do not rewrite contracts between parties unless vitiated by coercion, fraud or undue influence
- A judgment in rem binds all persons whether or not they were parties to the proceedings
Court orders
#- 1.The application dated 28/11/2025 is dismissed
- 2.Costs awarded to the respondents
- 3.Any interim orders are vacated
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 40 Rules 1 and 2 of the Civil Procedure Rules (interlocutory injunction jurisdiction); Article 40 of the Constitution referenced on the 1st respondent's ownership rights
Relief refused
#Temporary injunction restraining respondents from setting, transferring, allocating, evicting, intimidating or demolishing structures on L.R. No. 6485
No prima facie case; applicant failed to show it represents legitimate purchasers who complied with the agreement; unclean hands and non-disclosure
Order for supervised survey, beaconing and demarcation of L.R. No. 6485
Dismissed with the application; existing orders from prior litigation and the succession mediation would be mocked
Order compelling the 2nd respondent to render a full account of monies collected from applicant's members
No evidence of who the complainants are among members; no management committee resolution authorising the suit; agency of the 2nd respondent not proved
Costs
The application dated 28/11/2025 is dismissed with costs (to the 1st respondent).
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 upshot is that the application dated 28/11/2025 is dismissed with costs. Any interim orders are hereby vacated.
A party seeking a temporary injunction must meet the conditions set in Giella v Cassman Brown [1973] EA 358.
A prima facie case must be a genuine and arguable case showing infringement of a right. The right must be apparent, and or genuine. The applicant has not shown that it has or represents legitimate purchasers of the suit land.
A land sale agreement must pass the legal muster of conforming with Section 3(3) of the Law of Contract Act as read together with Section 38 of the Land Act.
Courts do not rewrite contracts between parties who are bound by the terms and conditions of the same, unless vitiated by coercion, fraud, or undue infiuence as held in National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & Another [2001] KLR 112.
it is the 1st respondent who stands to sufier more in the circumstances, if an injunction is granted and the suit ultimately dismissed, since the applicant is using the suit land without paying any consideration.
Issues in the judgment
#The judgment does not state the full names/case number of the suit; the case number must be inferred from context (ELC Kitale, application dated 28/11/2025).
The judgment inconsistently refers to the applicant as both 'applicant' and 'plaintifi' and to the 1st respondent as both 'respondent' and 'defendant'.
The applicant filed supplementary and further affidavits without leave of the court, which the court noted.
Dates of affidavits/service appear chronologically inconsistent on the face of the record (application dated 28/11/2025, replying affidavit sworn 19/3/2026, submissions dated 13/12/2025).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nabakhwana Co-operative Society Ltd v Lois Holdings Ltd & 2 others (Environment and Land Case E058 of 2025) [2026] KEELC 2745 (KLR)", Case Analysis (2026). ELC Case of Kitale (suit over L.R. No. 6485), application dated 28/11/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2745/eng@2026-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.