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MagistratePartially AllowedNot stated in the judgment· [2026] KEMC 68 (KLR)

Maingi v Mutunyu & 7 others (Environment and Land Case E038 of 2022) [2026] KEMC 68 (KLR)

Magistrates' Court (Environment and Land jurisdiction)
13 March 2026
2,891 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by Senior Principal Magistrate Y. A. Shikanda at Makindu resolves three competing interlocutory applications in a land dispute over parcel Makueni/Nguu Ranch/1046. The plaintiff sought to set aside ex parte orders of 2/1/2024 directing removal of his fence, to vary the ambiguous status quo order of 15/11/2023, to define the status quo confining the defendants to 0.25 acres, to maintain an existing injunction, and to strike out the defendants' applications dated 19/12/2023 and 12/2/2024 as scandalous and vexatious. The defendants, who filed no submissions, opposed through a replying affidavit alleging res judicata and disobedience of court orders. The court framed four issues and held that the 2/1/2024 order, being an ex parte mandatory injunction granted without evidence or hearing both parties, was made in error and final in effect, breaching the well-established threshold for mandatory interlocutory injunctions. It further held that the status quo order of 15/11/2023 was imprecise because it did not specify the portions each party could occupy, citing the Court of Appeal's and Supreme Court's warnings against generic status quo orders. The court set aside the 2/1/2024 orders, stayed the status quo order pending ascertainment of the actual position on the ground, directed the Makueni County Surveyor to determine the acreage occupied by each party within forty-five days with costs shared equally, maintained the injunction on the suit property, marked the defendants' applications as spent rather than striking them out, and made no order as to costs. The plaintiff's application thus succeeded only in part.

Key legal issues

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01

Setting aside of ex parte mandatory injunction issued on 2/1/2024

Holding

The mandatory injunction ordering removal of the fence was made in error; it was final in effect and granted without hearing parties or tangible evidence

Reasoning

The order was issued ex parte on an alleged contempt of earlier status quo orders, yet no evidence, not even photographs, showed the plaintiff had fenced the land or blocked access. The order effectively concluded the illegality of the fence without hearing both parties, contrary to the caution required for mandatory injunctions granted ex parte. The threshold of exceptional circumstances and a clear uncontested case was not met, so the order was set aside.

p. 5
02

Ambiguity of the status quo order made on 15/11/2023

Holding

Order No. 2 was ambiguous as it did not specify the portions each party could occupy, and was stayed pending ascertainment of the true status quo

Reasoning

Both parties occupy and use the suit land, but the acreage occupied by each is unknown. The order could be read to permit the defendants to cultivate, graze and enter the plaintiff's portion, or to bar the plaintiff from the land entirely. Following the Court of Appeal in Saroj K. Shah and the Supreme Court in Bia Tosha, generic status quo orders are imprecise and undesirable; variation requires evidence of the position on the ground, hence the surveyor's direction.

p. 5
03

Whether the defendants' applications should be struck out

Holding

The applications were not struck out but marked as spent

Reasoning

Having found the orders of 2/1/2024 problematic and part of the orders of 15/11/2023 ambiguous, the court considered it imprudent to proceed with the defendants' applications. Although the plaintiff sought their striking out as scandalous, vexatious and an abuse of process, the court chose the less drastic course of marking them as spent, preserving judicial resources while disposing of their practical effect.

p. 6

Legal principles established

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  • Mandatory injunctions should not be granted ex parte or at the interlocutory stage in the absence of special circumstances, a clear case and a high degree of assurance
  • Generic status quo orders without precise particulars of the position preserved are a recipe for chaos and should not issue
  • Conditions for an ex parte mandatory injunction: extreme urgency, exceptionally strong case, clear uncontested wrongful act, restoration of status quo, and a simple immediately reversible act

Court orders

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  1. 1.The orders made on 2/1/2024 pursuant to the application dated 19/12/2023 are set aside
  2. 2.The orders made on 15/11/2023, in particular order No. 2 on status quo, are stayed pending determination of the real status quo on the ground
  3. 3.The injunction restraining all parties from selling, transferring, sub-dividing, constructing, cutting down trees, harvesting sand or soil, burning charcoal or causing wastage on land parcel No. Makueni/Nguu Ranch/1046 shall remain in force
  4. 4.The Makueni County Surveyor is directed to visit the land, ascertain the acreage occupied by each party and furnish a report in court
  5. 5.The parties, through counsel, to agree with the County Surveyor on the timing of the exercise, to be conducted not later than forty-five (45) days
  6. 6.The parties shall equally meet the costs of the survey exercise
  7. 7.The applications dated 19/12/2023 and 12/2/2024 are marked as spent
  8. 8.There shall be no orders as to costs
  9. 9.Parties are advised to avoid side shows and focus on the hearing of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rule 10
  • Civil Procedure RulesOrder 40 rule 7

Cases cited (8)

  • Nation Media Group & 2 others v John Harun Mwau
    [2014] eKLR
  • Julius L. Marten v Caleb Arap Rotich
    [2021] eKLR
  • Tetecoh Housing and Coop Sacco Limited v Qwetu Sacco Limited
    [2021] eKLR
  • Kenya Power & Lighting Co. Limited v Sheriff Molana Habib
    [2018] eKLR
  • Kenya Breweries Limited & another v Washington O Okeyo
    [2002] KECA 284 (KLR)
  • Locabail International Finance Ltd. v. Agroexport and others
    [1986] 1 All ER 901
  • Saroj K. Shah v Naran Mani Patel & 2 others
    [2015] KECA 753 (KLR)
  • Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others
    [2023] KESC 14 (KLR)
Jurisdiction invoked
Original civil jurisdiction over land dispute; application under Order 40 rule 7 of the Civil Procedure Rules (discharge, variation or setting aside of injunction orders)

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, "Maingi v Mutunyu & 7 others (Environment and Land Case E038 of 2022) [2026] KEMC 68 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/68/eng@2026-03-13

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