Maithya v Maithya (Environment and Land Case E022 of 2024) [2025] KEMC 304 (KLR)
The bottom line
#A Makindu court refused to stop a registered landowner from using land his father sold him, ruling the seller really just wanted unpaid purchase money.
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 defendant as prayed for in the application
- 2.Who should bear costs of the application?
Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success
No - the plaintiff's real interest is payment of the alleged balance of the purchase price, not ownership; the defendant is the undisputed registered proprietor following voluntary transfer
The court found undisputed facts that the plaintiff sold parcel 2430, voluntarily transferred it, and that the defendant is registered proprietor in occupation. The plaintiff's interest lay in being paid the alleged balance, not in ownership. Both parties accused each other of forging the sale agreement, leaving a serious factual dispute that could only be resolved by evidence. The authenticity of the defendant's title was not in dispute, giving the defendant the edge. No interference with parcel 2431 was exhibited.
Whether the plaintiff would suffer irreparable loss not compensable by damages
No - the plaintiff contradicted himself by seeking payment of the alleged balance of the purchase price, showing any loss is monetary
The plaintiff claimed the loss could not be compensated by damages but simultaneously sought payment of the alleged balance of Ksh. 2,145,500, indicating any loss was remediable in monetary terms. He also was not in occupation of the suit land and produced no evidence (not even photographs) of encroachment on parcel 2431. The second Giella condition therefore failed.
Balance of convenience
It does not tilt in favour of the plaintiff; the defendant, as registered proprietor in occupation who paid for the land, would suffer loss if restrained
Although unnecessary after failure on the first two limbs, the court found for academic sake that the balance of convenience favoured the defendant. The plaintiff was not in occupation, was unsure whether he wanted the land or the money, and had not shown encroachment on parcel 2431. Restraining the defendant would prevent him occupying and utilising land both parties agree was sold to him.
Legal principles established
#- An interlocutory injunction must be ancillary to and within the scope of the substantive relief sought in the plaint; it cannot be granted if the prayers in the application are at variance with the suit
- A temporary injunction preserves the status quo so that any final judgment is not rendered ineffectual
- It is a serious matter to restrain a registered proprietor of property absent justifiable grounds; injunction rests on probability of irreparable injury and inadequacy of pecuniary compensation
Court orders
#- 1.The application dated 20/6/2024 is dismissed
- 2.The plaintiff shall bear the costs of the application
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
Relief refused
#Temporary injunction restraining the defendant from trespassing, clearing bushes, farming, cutting trees, interfering with boundaries, demolishing structures, constructing, sub-dividing, selling, leasing, transferring and/or dealing with 9.03 acres in parcels Makindu/Kisingo/2430 and 2431 pending determination of the main suit
Plaintiff failed to establish a prima facie case with a probability of success and irreparable loss not compensable by damages; the balance of convenience also did not tilt in his favour
Order directing the Officer Commanding Makindu Police Station to ensure compliance with the injunction orders
Followed automatically from dismissal of the main prayer for injunction
Costs of the application
Granted against the plaintiff
Costs
The plaintiff shall bear the costs of the application.
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.
In view of the foregoing, I find that the application dated 20/6/2024 is devoid of merit. For the reasons given hereinabove, it is my opinion that the plaintifi has failed to meet the threshold of granting a temporary injunction. Consequently, I proceed to dismiss the application. The plaintifi shall bear the costs of the application.
There are certain facts that are not in dispute: a. The plaintifi sold land parcel number Makindu/Kisingo/2430 to the defendant; b. The plaintifi voluntarily transferred the land to the defendant; c. Land parcel number Makindu/Kisingo/2430 is registered in the name of the defendant; d. The defendant is in occupation of the land.
Without evidence, there is no prima facie case.
This is not the kind of application in which stories would sufice.
Issues in the judgment
#The judgment states the land was 'voluntarily transferred to him by the defendant', which is internally inconsistent with the undisputed facts recited elsewhere that the plaintiff sold and voluntarily transferred the land to the defendant
The scope of the interlocutory relief is unclear: the application seeks to restrain dealings with 9.03 acres in parcels 2430 and 2431, while the undisputed sale and transfer concerned parcel 2430
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maithya v Maithya (Environment and Land Case E022 of 2024) [2025] KEMC 304 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 20/6/2024 filed 21/6/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/304/eng@2025-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.