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MagistrateDismissedMakindu PMCC (application dated 26/10/2022)· [2025] KEMC 178 (KLR)

Mwania v Koronya & 2 others (Environment and Land Case E026 of 2022) [2025] KEMC 178 (KLR)

Magistrate's Court at Makindu
29 July 2025
YSY.A SHIKANDA
3,168 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a landowner's injunction bid because he produced a disputed agreement but no real evidence, and warned his suit may be in the wrong court.

What this practically means

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Executive summary

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The plaintiff, who claimed to have bought a 50 by 100 feet plot at Syengoni road, Manyatta sub-location in Makindu Sub-county from the 1st defendant, sought a temporary injunction restraining the defendants from entering, trespassing, fencing and denying him access to the plot pending the hearing of the suit, plus an enforcement order against the OCS Makindu Police Station and costs. He deposed that the 3rd defendant built a wall encroaching on his land in August 2021 and that the 1st and 2nd defendants later disowned the sale. The 1st and 2nd defendants opposed, asserting the land lay in an unsurveyed/adjudication area depriving the court of jurisdiction, that the sale agreement was falsified, and that it was the plaintiff who encroached and was charged with malicious damage to property. The court first observed that an affidavit cannot be amended, finding the plaintiff's amended supporting affidavit defective, but declined to strike out the application on that basis given conflicting superior-court authority. It reviewed the Giella v Cassman Brown principles and authorities requiring interlocutory relief to be ancillary to the plaint, and confirmed the prayers were consistent with the plaint. However, it found the plaintiff had not established a prima facie case: he failed to respond to the jurisdictional objection and the claim of ownership by the 2nd defendant, relied on a disputed agreement, and exhibited no evidence of settlement, encroachment or denial of access. The application was dismissed with costs to the plaintiff's detriment, and the court advised the plaintiff to seriously consider whether the court has jurisdiction over the suit.

Key legal issues

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01

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

Holding

No - the disputed agreement, unresolved jurisdictional challenge and absence of any documentary or photographic evidence meant no prima facie case was established

Reasoning

The court noted the plaintiff did not respond to the defendants' claims that the land was unsurveyed/adjudication area and belonged to the 2nd defendant. The agreement relied on was highly disputed, and there was no evidence of settlement or encroachment. The 1st and 2nd defendants' response raised reasonable doubt as to the court's jurisdiction, so the Giella threshold was not met.

p. 6
02

Effect of amending a supporting affidavit

Holding

An affidavit cannot be amended; an amended affidavit is defective, though the court declined to strike out the application on that basis

Reasoning

The court reviewed conflicting authority: some decisions hold an application supported by an amended affidavit is a nullity, while Aburili J held the defect does not invalidate the application since Order 51 Rule 1 does not mandate an affidavit. The court held the affidavit is defective but left the question of fatality open, proceeding to determine the application on its merits.

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Whether the injunction sought was ancillary to the relief in the plaint

Holding

Yes - the court verified that the prayers in the application bore a relationship to the relief sought in the plaint

Reasoning

Relying on authorities including Dismas Oduor Owuor v Housing Finance Co. and State of Orissa v Madan Gopal Rungta, the court applied the principle that interim relief must be ancillary to the main relief. On perusing the plaint, it found the prayers sought in the application were consistent with the suit, so no variance arose.

p. 6

Legal principles established

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  • An affidavit cannot be amended; a party should file a further or supplementary affidavit instead
  • An interlocutory injunction must be ancillary to and consistent with the substantive relief claimed in the plaint
  • Without evidence there is no prima facie case; mere stories and averments do not suffice
  • Whether an application supported by an amended affidavit becomes fatally defective remains debatable in the superior courts

Court orders

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  1. 1.Dismissal of the application dated 26/10/2022
  2. 2.Plaintiff to bear the costs of the application
  3. 3.Advice to the plaintiff to consider whether the court has jurisdiction to hear the suit
Jurisdiction invoked
Civil Procedure Act (sections 1A, 1B, 3A) and Order 40 rule 2 of the Civil Procedure Rules

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, "Mwania v Koronya & 2 others (Environment and Land Case E026 of 2022) [2025] KEMC 178 (KLR)", Case Analysis (2025). Makindu PMCC (application dated 26/10/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/178/eng@2025-07-29

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