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ELCPartially AllowedELC Case No. 112 of 2025

Mutheu v Wentzel & 4 others (Environment and Land Case E112 of 2025) [2026] KEELC 4643 (KLR)

Environment and Land Court
2 July 2026
7,963 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Kwale (Naikuni J) determined two competing Notices of Motion in ELC Case No. 112 of 2025. Mary Mutheu, the Plaintiff, sought a temporary injunction restraining the Defendants from entering, trespassing upon, constructing on, interfering with, occupying, or dealing with her properties Kwale/Diani SS/2445 and Kwale/Diani SS/2115, which she held under title deeds acquired by her late husband Helmut Ham. She alleged that the Defendants deployed guards through Noble Security Services, dispossessed her, denied her access, caused loss of heirlooms valued at Kshs 20,000,000 and rental income exceeding Kshs 2,400,000, and misused a forged Power of Attorney. The 3rd Defendant, Elijah Musili Maanzo, sought a stay of proceedings pending determination of ELCJR Case No. E010 of 2025, a judicial review challenging the Magistrate's Court's jurisdiction to grant the adverse possession decrees underpinning the Plaintiff's title. The Court framed three issues: the threshold for the injunction, the threshold for stay, and costs. Applying Giella v Cassman Brown, MRAO and Nguruman, the Court found the Plaintiff had established a prima facie case, irreparable injury, and that the balance of convenience favoured her. Applying Global Tours & Travels and related authorities on stay of proceedings, the Court found the judicial review proceedings addressed distinct issues from the trespass suit, no risk of duplication existed, and the stay application was misconceived, an abuse of process and calculated to delay justice. The Court allowed the injunction application, dismissed the stay application, directed the OCS Diani to enforce the orders, fixed a Pre-Trial Conference for 7th October 2026 and hearing for 18th November 2026, and awarded the costs of both applications to the Plaintiff against the Defendants.

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 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. 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. 3.Who should bear the costs of the two applications dated 22nd October, 2025 and 9th December, 2025

Key legal issues

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01

Whether the Plaintiff established a prima facie case with probability of success

Holding

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

Reasoning

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.

p. 19
02

Whether the Plaintiff would suffer irreparable injury not compensable by damages

Holding

Yes - loss of heirlooms, antiques and denial of access to her home constituted harm that cannot be quantified or restored by monetary compensation

Reasoning

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.

p. 21
03

Where the balance of convenience lies

Holding

It tilts in favour of the Plaintiff - maintaining her possession preserves the subject matter of the suit and entails the lower risk of injustice

Reasoning

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.

p. 24
04

Whether the 3rd Defendant's application for stay of proceedings pending the judicial review challenge should be granted

Holding

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

Reasoning

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.

p. 32
05

Who should bear the costs of both applications

Holding

The Defendants, as costs follow the event under Section 27(1) of the Civil Procedure Act

Reasoning

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.

p. 33

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 22nd October, 2025 by the Plaintiff/Applicant is found to have merit and is allowed
  2. 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. 3.The Officer Commanding Station (OCS), Diani Police Station or any other police officer to enforce the court orders
  4. 4.The Notice of Motion dated 9th December, 2025 by the Defendants/Applicants seeking stay of proceedings is dismissed for want of merit
  5. 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. 6.The costs of both applications dated 22nd October, 2025 and 9th December, 2025 to be borne by the Defendants/Applicants

The bench

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

majority

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

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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

p. 32

Costs

The costs of both applications dated 22nd October, 2025 and 9th December, 2025 shall be borne by the Defendants/Applicants

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 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.
p. 36Final orders - temporary injunction
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.
p. 33Final orders - dismissal of stay application
THAT the costs of both applications dated 22nd October, 2025 and 9th December, 2025 shall be borne by the Defendants/Applicants.
p. 36Final orders - costs
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent.
p. 17Giella principles as restated in Nguruman
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
p. 18Definition of prima facie case (Mrao Ltd)
The application is misconceived, amounts to an abuse of the court process, and is calculated to delay justice.
p. 32Stay of proceedings refused

Issues in the judgment

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minor

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

minor

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)

minor

The judicial officer's name appears variously spelled as 'NAIKUINI' in the header and 'NAIKUNI' in the signature block

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, "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.