Mutheu v Wentzel & 4 others (Environment and Land Case E112 of 2025) [2026] KEELC 4643 (KLR)
The bottom line
#A Kwale landowner won a court order barring the defendants from interfering with her Diani properties, and they must pay the legal costs.
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 Notice of Motion application dated 22nd October, 2025 meets the threshold required for grant of temporary injunctive relief under Order 40 Rules 1 and 2 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and Article 40 of the Constitution of Kenya, 2010
- 2.Whether the Notice of Motion application dated 9th December, 2025 meets the threshold required for stay of proceedings under Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and the principles governing judicial review
- 3.Who should bear the costs of the two applications dated 22nd October, 2025 and 9th December, 2025
Key legal issues
#Whether the Plaintiff established a prima facie case with probability of success
Yes - the exhibited title deeds to Kwale/Diani SS/2445 and SS/2115 and allegations of dispossession by deployed guards disclosed infringement of proprietary rights under Article 40
The Plaintiff exhibited title deeds and deponed that the Defendants unlawfully deployed guards, dispossessed her of possession and facilitated trespass and illegal occupation, with losses of heirlooms valued at Kshs 20,000,000 and rental income exceeding Kshs 2,400,000. These facts disclosed infringement of proprietary rights under Article 40. The Defendants' contestation of her title, including allegations of irregular acquisition of title through adverse possession decrees, were held to be weighty matters reserved for trial.
Whether the Plaintiff would suffer irreparable injury not compensable by damages
Yes - loss of heirlooms, antiques and denial of access to her home constituted harm that cannot be quantified or restored by monetary compensation
Relying on Nguruman and Pius Kipchirchir Kogo v Frank Kimeli Tenai, the Court held irreparable injury is harm that cannot be adequately compensated in damages. The Plaintiff's loss of heirlooms, antiques and denial of access to her home could not be quantified or restored by monetary compensation; proprietary rights once violated cannot be vindicated by damages alone. Kenya Breweries v Washington Okeyo was cited for the position that damages are not always adequate where proprietary rights are threatened.
Where the balance of convenience lies
It tilts in favour of the Plaintiff - maintaining her possession preserves the subject matter of the suit and entails the lower risk of injustice
The Court reasoned that maintaining the Plaintiff's possession preserves the subject matter of the suit; evicting her would occasion greater hardship than restraining the Defendants until trial. If the injunction were withheld, the Plaintiff risked permanent dispossession, waste and alienation; if granted and the Defendants later succeeded, they would only have been delayed, compensable in damages. Amir Suleiman v Amboseli Resort on opting for the lower risk of injustice was applied.
Whether the 3rd Defendant's application for stay of proceedings pending the judicial review challenge should be granted
No - the judicial review proceedings and the suit address distinct issues; no risk of duplication or conflicting outcomes, and the application was calculated to stall proceedings
The judicial review challenge targeted the jurisdiction of the Magistrate's Court in granting adverse possession decrees, which does not directly determine ownership or trespass, the substantive issues before the ELC. Granting stay would delay resolution of the trespass claim contrary to Sections 1A and 1B of the Civil Procedure Act. There was no risk of duplication or conflicting outcomes, and the application was filed after the Plaintiff had moved the Court, suggesting it was calculated to stall proceedings.
Who should bear the costs of both applications
The Defendants, as costs follow the event under Section 27(1) of the Civil Procedure Act
Section 27(1) of the Civil Procedure Act holds that costs follow the events and the issue of costs is at the discretion of the Court. The successful party should ordinarily be compensated for the expense of vindicating their rights. The Plaintiff's injunction application succeeded while the Defendants' stay application was found misconceived and an abuse of process, so the Defendants were ordered to bear the costs of both applications.
Legal principles established
#- The three Giella conditions for an interlocutory injunction are separate, distinct and logical hurdles to be surmounted sequentially
- Stay of proceedings is a grave judicial discretion interfering with a party's right to be heard, to be granted only in the clearest of cases
- In interlocutory injunction applications the court makes no final findings on contested facts, only weighing the relative strength of the parties' cases
Court orders
#- 1.The Notice of Motion dated 22nd October, 2025 by the Plaintiff/Applicant is found to have merit and is allowed
- 2.A temporary injunction issued restraining the Defendants, their agents, servants, employees, or any persons acting under their authority from entering, trespassing upon, constructing, interfering with, occupying, or otherwise dealing with the Plaintiff's properties known as Kwale/Diani SS/2445 and Kwale/Diani SS/2115, pending the hearing and determination of the suit
- 3.The Officer Commanding Station (OCS), Diani Police Station or any other police officer to enforce the court orders
- 4.The Notice of Motion dated 9th December, 2025 by the Defendants/Applicants seeking stay of proceedings is dismissed for want of merit
- 5.Pre-Trial Conference on 7th October, 2026 pursuant to Order 11 of the Civil Procedure Rules, 2010, and hearing on 18th November, 2026, preferably through physical means
- 6.The costs of both applications dated 22nd October, 2025 and 9th December, 2025 to be borne by the Defendants/Applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21; Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 40 of the Constitution of Kenya, 2010; Environment and Land Court Act, No. 19 of 2011
Relief refused
#Stay of proceedings sought by the 3rd Defendant pending determination of ELCJR Case No. E010 of 2025
The judicial review proceedings and the present suit address distinct issues; the application was misconceived, an abuse of court process and calculated to delay justice
Costs
The costs of both applications dated 22nd October, 2025 and 9th December, 2025 shall be borne by the Defendants/Applicants
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.
THAT a temporary injunction be and is accordingly issued restraining the Defendants, their agents, servants, employees, or any persons acting under their authority from entering, trespassing upon, constructing, interfering with, occupying, or otherwise dealing with the Plaintiff's properties known as Kwale/Diani SS/2445 and Kwale/Diani SS/2115, pending the hearing and determination of the suit.
THAT the Notice of Motion application dated 9th December, 2025 by the Defendants/Applicants seeking stay of proceedings be and is hereby dismissed for want of merit.
THAT the costs of both applications dated 22nd October, 2025 and 9th December, 2025 shall be borne by the Defendants/Applicants.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent.
So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter
The application is misconceived, amounts to an abuse of the court process, and is calculated to delay justice.
Issues in the judgment
#Internal inconsistency in the court's prior ruling on costs quoted from Sagalla Lodge Limited, which refers to applications dated 7th December, 2021 and 21st December, 2021 that do not match the present case
Inconsistency in the name of the judicial review case cited by the 3rd Defendant (MCL&E Case No. E010 of 2025 vs ELCJR Case No. E010 of 2025)
The judicial officer's name appears variously spelled as 'NAIKUINI' in the header and 'NAIKUNI' in the signature block
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutheu v Wentzel & 4 others (Environment and Land Case E112 of 2025) [2026] KEELC 4643 (KLR)", Case Analysis (2026). ELC Case No. 112 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4643/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.