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ELCPartially AllowedELC No. E033 of 2025

Church Commissioners for Kenya Samuel Sawa Maneno t/a Kwale Tumaini Academy Salome Kuvuna Maneno t/a Kwale Tumaini Academy v Zungu & 36 others (Environment and Land Case E033 of 2025) [2026] KEELC 3936 (KLR)

Environment and Land Court of Kenya
18 June 2026
5,388 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kwale temporarily barred people from interfering with the Church Commissioners' land and ordered police to enforce the ban while the case continues.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Kwale (L. L. Naikuni, J) on a Notice of Motion dated 25th March, 2025 by the Church Commissioners for Kenya and the Manenos trading as Kwale Tumaini Academy. The Plaintiffs, relying on Article 40 of the Constitution, Order 40 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, sought a temporary injunction restraining the Defendants from entering, building, occupying, felling trees, cultivating, fencing, selling or otherwise interfering with Plot L.R. 5007/1 (C.R. 8280), Kwale Township, and police enforcement of any such orders. They deponed, through the Registrar of the 1st Plaintiff, that they held title to the land, had leased 6 acres to the school operators for 30 years, and that the Defendants had trespassed, constructed structures, felled indigenous trees, cultivated, fenced, and purported to sell portions of the land to the public; police had declined to assist absent a court order. The Defendants filed no response. Framing three issues - the Giella threshold, police enforcement, and costs - the court found a prima facie case on the title and photographic evidence, irreparable injury in the destruction of trees, disruption of school activities and fraudulent alienation of land, and that the balance of convenience favoured the registered proprietors. It further held police involvement necessary to prevent the decree from being illusory, describing it as protective rather than punitive. The application was allowed with a temporary injunction issued, the OCS and OCPD Kwale directed to enforce compliance, a pre-trial conference set for 21st July 2026, parties encouraged to pursue AJS/STAJ negotiation, and costs reserved to the cause.

Questions the Court framed

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

  1. 1.Whether the Notice of Motion application dated 25th March, 2025 meets the threshold required for the grant of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010
  2. 2.Whether the Plaintiffs/Applicants have demonstrated sufficient grounds to warrant police enforcement of any restraining orders issued by this Court
  3. 3.Who will bear the costs of the Notice of Motion application dated 25th March, 2025

Key legal issues

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01

Whether the Plaintiffs established the Giella v Cassman Brown criteria for a temporary injunction

Holding

Yes - a registered title plus evidence of construction, felling of trees, fencing, cultivation and purported fraudulent sales established a prima facie case; destruction of indigenous trees, disruption of school activities and fraudulent alienation of land are irreparable harms not compensable by damages; and the balance of convenience favours registered proprietors against parties showing no lawful claim

Reasoning

The court applied the three sequential Giella tests as refined in Nguruman. The title deed and postal search proved ownership; photographs evidenced ongoing trespass and destruction; police refusal to act absent a court order heightened the risk. As defendants showed no lawful claim to occupation, the balance of convenience lay with the Plaintiffs and preservation of the property pending trial.

p. 18
02

Whether police enforcement of the restraining orders was warranted

Holding

Yes - the OCS Kwale and OCPD Kwale were directed to enforce compliance, the court holding that injunctive relief without enforcement mechanisms may be rendered illusory

Reasoning

Administrative remedies were exhausted since police declined to act without a court order; the trespass also amounted to criminal offences under the Penal Code and Trespass Act; threats of force, political incitement and disruption of school-going children elevated the dispute to one implicating public safety. Police involvement was characterised as protective, not punitive.

p. 20
03

Who bears the costs of the application

Holding

Costs in the cause, reserved to abide the outcome of the main suit

Reasoning

Although costs follow the event and the application succeeded on merit, the court held that awarding costs at an interlocutory stage may prejudice fair determination of substantive issues, so reserving costs ensures the successful party at trial is appropriately compensated.

p. 23

Legal principles established

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  • An application for an interlocutory injunction must establish a prima facie case with a probability of success, irreparable injury not adequately compensable by damages, and balance of convenience, applied as sequential hurdles
  • A prima facie case in civil cases is one in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party
  • In an interlocutory application the court is not required to make final findings on contested facts but only to weigh the relative strength of the parties' cases
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, but interlocutory costs may be reserved to the cause

Court orders

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  1. 1.The Notice of Motion application dated 25th March, 2025 be and is hereby found to have merit and thus allowed with costs in the cause
  2. 2.An order of temporary injunction restraining the Defendants/Respondents, their agents, servants, and/or any other persons acting under their authority from entering into, occupying, constructing, felling trees, cultivating, fencing, selling, leasing, disposing of, or in any other manner whatsoever interfering with Plot No. L.R. 5007/1 – C.R. 8280, Kwale Township, pending the hearing and determination of this suit
  3. 3.The Officer Commanding Station (OCS) Kwale Police Station and the Officer Commanding Police Division (OCPD Kwale) shall enforce compliance with the restraining orders
  4. 4.Mention on 21st July, 2026 for a Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010 before ELC No. 2, with further directions on hearing preferably through physical means
  5. 5.The parties are encouraged to fully explore out-of-court negotiation in tandem with the AJS and STAJ judiciary policies pursuant to Article 159(2) of the Constitution and Section 20(1) & (2) of the Environment and Land Court Act
  6. 6.Costs of the Notice of Motion application dated 25th March, 2025 shall be in the cause

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 of the Constitution; Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act, Cap. 21

Relief refused

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Costs of the application to be paid by the Defendants forthwith

Costs reserved to abide the outcome of the main suit as the matter is interlocutory

p. 23

Costs

Costs of the Notice of Motion application dated 25th March, 2025 shall be in the cause

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.

THAT an order of temporary injunction do issue restraining the Defendants/Respondents, their agents, servants, and/or any other persons acting under their authority from entering into, occupying, constructing, felling trees, cultivating, fencing, selling, leasing, disposing of, or in any other manner whatsoever interfering with Plot No. L.R. 5007/1 – C.R. 8280, Kwale Township, pending the hearing and determination of this suit.
p. 24final orders - temporary injunction
THAT the Officer Commanding Station (OCS) Kwale Police Station and the Officer Commanding Police Division (OCPD Kwale) shall enforce compliance with the restraining orders herein.
p. 24final orders - police enforcement
THAT the costs of the Notice of Motion application dated 25th March, 2025 shall be in the cause.
p. 23final orders - costs
The Plaintiffs have produced a title this evidence establishes a prima facie case since the Plaintiffs’ proprietary rights have apparently been infringed, warranting explanation or rebuttal from the Defendants.
p. 12prima facie case
there has been destruction of indigenous trees, interference with learning activities and fraudulent alienation of land cannot be adequately compensated by damages
p. 14irreparable injury
The balance of convenience tilts in favour of the Plaintiffs. They are the registered proprietors, while the Defendants have not shown any lawful claim or justification for their occupation of the suit property
p. 16balance of convenience
The intervention of the OCS and OCPD Kwale is necessary to give effect to the Court’s orders, prevent further trespass, safeguard the Plaintiffs’ proprietary rights under the provision Article 40 of the Constitution, and maintain public order.
p. 20police enforcement

Issues in the judgment

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minor

Judge's surname is spelled inconsistently within the judgment - 'NAIKUINI' in the running header versus 'NAIKUNI' in the signature block

minor

Submissions date appears chronologically inconsistent - parties directed to file written submissions on 26th February, 2026, yet the ruling records that none of the parties complied and a ruling date was reserved on 18th June, 2026

minor

Penal Code section for obtaining by false pretenses is given as Section 339, duplicating the section cited for malicious damage to property

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, "Church Commissioners for Kenya Samuel Sawa Maneno t/a Kwale Tumaini Academy Salome Kuvuna Maneno t/a Kwale Tumaini Academy v Zungu & 36 others (Environment and Land Case E033 of 2025) [2026] KEELC 3936 (KLR)", Case Analysis (2026). ELC No. E033 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3936/eng@2026-06-18

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