Makothe v Mulei & 10 others (Environment & Land Case E015 of 2024) [2025] KEMC 89 (KLR)
The bottom line
#A Makindu court froze all major dealings on a disputed Makueni land parcel but refused to evict the occupants before the case is fully heard.
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 plaintiff is entitled to orders of injunction as against the defendants as prayed for in the application
- 2.Who should bear costs of the application?
Key legal issues
#Whether the plaintiff established entitlement to a temporary injunction against the defendants
Only partially: the court found a prima facie case that the parcel exists and the plaintiff is a co-owner, and found preservation of the suit property necessary, but refused the injunction as prayed because the defendants are in occupation and granting it would evict them before trial; instead a limited preservation order was issued
The court accepted that the search certificate showed the parcel exists and the plaintiff is a co-owner, and noted the defendants' own fraud allegations as reinforcing the need for preservation. However, it held that the orders as framed would effectively evict the occupants before trial, and cautioned against deciding substantive issues at the interlocutory stage. It therefore tailored orders to preserve the status quo without hardship, deferring boundary and enforcement prayers to the full hearing.
Whether interlocutory orders may exceed the relief sought in the plaint
No; the injunction must be ancillary to and within the scope of the substantive relief sought in the suit
Relying on Shitakha v Mwamodo, Mbuthia v Jimba, Winstone v Winstone, McGibbon v McGibbon and the Ringera J decision in Dismas Oduor Owuor v Housing Finance Co. (K) Ltd, the court held that the plaint is the foundation of an interlocutory application and interlocutory orders at variance with the permanent orders sought cannot be granted. Having perused the plaint, the court was satisfied the prayers sought had a bearing on the application.
Legal principles established
#- The principles for granting a temporary injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable harm not compensable by damages, and balance of convenience if in doubt
- An interlocutory injunction must be based on and ancillary to the relief claimed in the plaint; it ought not to be granted if the prayers in the application are at variance with the suit
- In dealing with an interlocutory injunction application the court should not decide factual issues but weigh the relative strength of each side's propositions, resorting to the balance of convenience where disputed facts raise doubt
- The power to grant or deny a temporary injunction is discretionary but must be exercised judiciously, and an injunction will only be granted to support a legal right
Court orders
#- 1.The Plaintiff and Defendants restrained, by themselves, their agents, servants, employees or anyone acting on their behalf, from sub-dividing, selling, alienating or in any other manner substantially changing the character of land parcel No. Makueni/Kambu Scheme/1031, pending the hearing and determination of the suit
- 2.No further major developments or projects by either party or persons claiming through them on land parcel number Makueni/Kambu Scheme/1031, pending the hearing and determination of the suit
- 3.Prayer for an order directing the Sub-county Surveyor, Kibwezi to visit the suit land and place beacons thereon declined as premature
- 4.Prayer for an order directing the officer commanding Kambu Police post to enforce the orders declined as there is nothing for the police to enforce at this stage
- 5.Costs of the application to abide by the outcome of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Civil Procedure Act (sections 1A, 1B, 3A) and Order 40 rule 2 of the Civil Procedure Rules; original civil jurisdiction over land dispute
Relief refused
#Order directing the Sub-county Surveyor, Kibwezi to visit the disputed area and place beacons clearly indicating boundaries
Premature at interlocutory stage; the prayer is in the plaint and can only be granted after evidence is taken
Order directing the OCS Kambu Police Station (officer commanding Kambu Police post) to ensure compliance with the orders
Nothing for the police to enforce at this stage
Injunction in the precise terms sought (restraining encroachment, trespass, cultivation, grazing, disposal, development, sub-division)
Granting the orders as prayed would amount to evicting the defendants, who are in occupation, before the suit is heard; only a preservation order was granted
Costs
The costs of the application shall abide by the outcome of the suit.
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.
The Plaintifi and Defendants are hereby restrained either by themselves, their agents, servants, employees or anyone acting on their behalf, from sub-diving, selling, alienating or in any other manner substantially changing the character of land parcel No. Makueni/Kambu Scheme/1031, pending the hearing and determination of the suit
There shall be no further major developments or projects by either party or persons claiming through them, on land parcel number Makueni/Kambu Scheme/1031, pending the hearing and determination of the suit.
The costs of the application shall abide by the outcome of the suit.
in considering such an application, the court should be careful not to decide substantive issues at the interlocutory stage.
the object of a temporary injunction is to keep things in status quo so that if at the hearing the plaintifi obtains a judgment in his favour, the defendant will have been prevented from dealing in the meantime with the property in such a way as to make that judgment inefiectual
there is need to preserve the suit property pending the hearing and determination of the suit.
Issues in the judgment
#The judgment does not state the suit's case number or the full names of the parties, referring only to 'the plaintifi' and numbered defendants
Typographical rendering 'plaintifi' for 'plaintiff' throughout the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makothe v Mulei & 10 others (Environment & Land Case E015 of 2024) [2025] KEMC 89 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 19/4/2024 in a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/89/eng@2025-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.