Motatiro (Suing as the legal representative of the Estate of Gimung'aya Motatiro) v Muhindi & 12 others (Environment and Land Case E007 of 2025) [2026] KEELC 3866 (KLR)
The bottom line
#A Kenyan court threw out an injunction over land because the applicants lacked a formal claim and filed sloppy evidence.
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 supporting affidavit has proper annexures and whether, without written authority, the depositions on behalf of the other applicants are proper
- 2.Whether the application has met the threshold for the grant of orders of injunction
- 3.Who should bear the costs of the application
Key legal issues
#Whether the supporting affidavit was properly procured with written authority and properly commissioned annexures
The depositions on behalf of co-applicants without written authority are inadmissible hearsay, and the uncommissioned, unserialized annexures are struck out
Order 4 Rule 1(3) with Order 7 Rule 5(a) requires written authority filed with the verifying affidavit where one of several plaintiffs deposes for the others. Rule 9 of the Oaths and Statutory Declarations Rules requires exhibits to be sealed and marked with serial letters of identification. Neither requirement was met, so the depositions are mere hearsay and the annexures inadmissible.
Whether the applicants met the Giella v Cassman Brown threshold for a temporary injunction
They did not: no defence or counterclaim existed, so there was no claim capable of establishing a prima facie case with probability of success
The court traced the suit history and observed the 1st to 9th defendants had filed no defence or counterclaim, meaning nothing would remain for trial after the application. Granting an injunction without an existing claim would be an absurdity and a step in vain. The preliminary objection had been dismissed, but the absence of pleadings defeated the application.
Costs of the application
Costs awarded to the Respondent who opposed the application
Following dismissal, the court exercised its discretion on costs in favour of the Respondent who had successfully opposed the motion.
Legal principles established
#- Where a party swears an affidavit or pleads on behalf of several others, written authority must be filed with the pleading or affidavit; without it, the averments are inadmissible hearsay
- Exhibits to affidavits must be commissioned and serialized under the seal of the Commissioner for Oaths; uncommissioned annexures are inadmissible and depositions relying on them lack documentary support
- A prima facie case for an interlocutory injunction requires a pending claim or counterclaim against the party against whom the injunction is sought; without a claim the application collapses
Court orders
#- 1.The depositions made by the 1st Applicant on behalf of the other applicants without written authority are inadmissible hearsay and are disregarded
- 2.Annexures ANM 1 to 8 are struck out for failure to be commissioned and serialized
- 3.The Notice of Motion dated 31st October 2025 is dismissed with costs to the Respondent
- 4.The matter is fixed for mention on 5th July 2025 for confirmation of compliance with Order 11 of the Civil Procedure Rules, 2010
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 13, 18 and 19 of the Environment and Land Court Act, 2011; Order 40 Rule 1(a) and Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, 2010; Articles 40 and 159 of the Constitution
Relief refused
#Temporary injunction restraining the Plaintiff/Respondent from threatening, harassing, destroying the Applicants' properties or interfering with their possession of Bukira/Bwisaboka/11231
The defendants had filed no defence or counterclaim, hence no claim with a probability of success existed against the plaintiff on which an injunction could rest
Enforcement of the injunction by the OCS Kehancha Police Station
This consequential relief fell with the dismissal of the injunction application
Costs
Application dismissed with costs to the 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.
In my considered view, without the written authority the averment is mere hearsay which is inadmissible.
In the circumstances failure to commission the said documents together with afidavit renders them in admissible in evidence to support the depositions contained in the afidavit. Therefore, they are struck out.
for a prima facie case to be established there has to be a claim as against the party against whom the injunction is sought. Without a claim the depositions and prayers stand on a hollow prism which collapses immediately after the application is determined.
I therefore dismiss the application with costs to the Respondent who opposed it. This matter is hereby fixed for mention on 5th of July 2025 for confirmation of compliance with Order 11 of the Civil Procedure Rules, 2010. Orders accordingly.
Issues in the judgment
#Internal date inconsistency in filing chronology - the judgment elsewhere dates filings in 2025
Another internal date inconsistency - submissions said to be filed in 2026 though the application was determined in 2025/2026 chronology
Mention date given in the final orders is in the past relative to the delivery date of the ruling
Supporting affidavit deponent says he is authorized to swear for the 2nd to 6th 'Defendants' although they are described as Applicants, and written authority was not annexed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Motatiro (Suing as the legal representative of the Estate of Gimung'aya Motatiro) v Muhindi & 12 others (Environment and Land Case E007 of 2025) [2026] KEELC 3866 (KLR)", Case Analysis (2026). Not stated in the judgment (Migori ELC; prior related suit Migori ELC No. E001 of 2023, withdrawn). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3866/eng@2026-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.