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ELCPartially AllowedNotice of Motion dated 18/10/2024 (HCCC arising from prior HCCC NO E001/2023)

Njango & another v Kinuthia & another (Environment and Land Case E177 of 2024) [2026] KEELC 3262 (KLR)

Environment and Land Court
28 May 2026
2,539 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court at Thika stopped alleged sand harvesting on private land, ruling land degradation can't be fixed with money.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Thika (Mogeni J) determined a Notice of Motion dated 18/10/2024 in which the Applicants, the registered proprietor of land parcel KARAI/LUSIGGITI/T.1782 and a co-plaintiff, sought temporary injunctions restraining the Defendants from entering, harvesting sand, excavating or trespassing on the suit property pending the hearing of the main suit, together with police enforcement. The Applicants alleged breach and termination of a sand-harvesting agreement, unauthorized nighttime harvesting of approximately 100 lorries of sand per night, deployment of armed goons, and environmental degradation rendering the land a 'shell'. The Respondents opposed, asserting the 1st Applicant was a knowing collaborator in the contract, that they had been denied access since December 2022, and that their losses of approximately Kshs 9.7 million were purely commercial. Applying the Giella v Casman Brown three-fold test, the Court found a prima facie case on the strength of the registered title and the Respondents' admission of contracting after transfer of the land, held that land degradation and threats to life constitute irreparable injury beyond monetary compensation, and found the balance of convenience favoured the Applicants since the Respondents claimed no access since December 2022. The Court allowed the application, issued a temporary injunction pending the hearing and determination of the main suit, directed the OCS Kikuyu Police Station to assist enforcement, fixed a pre-trial conference for 11/06/2026, and ordered that costs of the application abide the outcome of the main suit.

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 demonstrated a prima facie case with a probability of success
  2. 2.Whether the Applicants stand to suffer irreparable injury which would not be adequately compensated by an award of damages
  3. 3.If the Court is in doubt, where the balance of convenience lies

Key legal issues

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01

Prima facie case

Holding

Established - the Applicants' registered title and the Respondents' admission of contracting with a party who had already transferred the land warrant protection pending trial

Reasoning

The 1st Applicant held a title deed as absolute registered proprietor. The Respondents did not deny the contract's existence and termination. Their admission of contracting with the 2nd Applicant after the land had been transferred, coupled with evidence of continued trespass, disclosed an apparent infringement of proprietary rights calling for rebuttal at trial.

p. 5
02

Irreparable injury

Holding

Established - land degradation and threats to life cannot be adequately compensated by damages

Reasoning

Sand harvesting alleged to cause environmental hazard suggested permanent change to the character of the land; damages cannot restore the topography of a hollowed-out parcel. Alleged deployment of goons and threats to life introduced physical insecurity unquantifiable in money, satisfying the second Giella limb.

p. 5
03

Balance of convenience

Holding

Tilts in favour of the Applicants since the Respondents claimed no access since December 2022, so the injunction preserves rather than paralyses any lawful business

Reasoning

The Respondents' own assertion that they had no access to the premises since 25/12/2022 meant granting the injunction merely maintained the status quo and prevented resumption of contested, degrading activities. The Respondents' claimed commercial loss could be pursued via a counterclaim.

p. 5

Legal principles established

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  • A prima facie case is more than an arguable case and must show an infringement of a right or probability of success
  • Where damages are an adequate remedy, no interlocutory injunction should normally be granted
  • Land degradation may constitute irreparable injury transcending monetary compensation

Court orders

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  1. 1.The Application dated 18/10/2024 is hereby allowed
  2. 2.A temporary injunction restraining the Defendants/Respondents, their servants, agents, or any person acting under their authority from entering into, transacting over, harvesting sand, excavating, trespassing, or in any other manner interfering with land parcel KARAI/LUSIGGITI/T.1782 pending the hearing and determination of the main suit
  3. 3.The OCS Kikuyu Police Station directed to provide the necessary assistance to ensure the quiet enjoyment of the suit property by the Applicants and the enforcement of these orders
  4. 4.Parties to go for Pre-trial Conference on 11/06/2026
  5. 5.The costs of the Application to abide the outcome of the main suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 40 and Article 45 of the Constitution of Kenya, 2010; Sections 1A, 3A, 6 & 7 of the Civil Procedure Act; Sections 18-20 of the Land Act; Order 40 Rule 1 of the Civil Procedure Rules

Relief refused

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Costs of the application to the Applicants

Costs were not awarded immediately but made to await the outcome of the main suit

p. 6

Costs

The costs of this Application shall abide the outcome of the main suit.

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.

A temporary injunction is hereby issued restraining the Defendants/Respondents, their servants, agents, or any person acting under their authority from entering into, transacting over, harvesting sand, excavating, trespassing, or in any other manner interfering with land parcel KARAI/LUSIGGITI/T.1782 pending the hearing and determination of the main suit.
p. 5final orders - injunction
The sanctity of title and the need to preserve the subject matter of the suit pending a full hearing outweigh the Respondents' claims of commercial loss, which can be pursued via a Counterclaim if necessary.
p. 5balance between title and commercial loss
the degradation of land a finite resource often transcends monetary value.
p. 5irreparable injury
The costs of this Application shall abide the outcome of the main suit.
p. 6costs

Issues in the judgment

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minor

Judgment dated 28 May 2026 refers to a direction given on 21/01/2026, but also records that the Applicants' submissions were dated 17/02/2025 and confirms filing on 2/10/2025, suggesting inconsistent dates within the judgment

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, "Njango & another v Kinuthia & another (Environment and Land Case E177 of 2024) [2026] KEELC 3262 (KLR)", Case Analysis (2026). Notice of Motion dated 18/10/2024 (HCCC arising from prior HCCC NO E001/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3262/eng@2026-05-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.