Muteti v Musuki & 3 others (Environment and Land Case E042 of 2024) [2026] KEMC 69 (KLR)
The bottom line
#A Kenyan land court refused a one-sided injunction but froze both parties' dealings with the disputed plots until the full ownership case is decided.
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 1st and 2nd defendants 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 to warrant an injunction restraining the 1st and 2nd defendants
The plaintiff did not obtain the injunction as prayed; the court noted the defendants' registered titles were disputed, occupation was unclear, and both parties claimed ownership, warranting preservation on defined terms rather than the one-sided restraint sought
Applying Giella v Cassman Brown, the court weighed the affidavits and found the 1st and 2nd defendants were registered proprietors whose titles were disputed, that it was unclear whether the plaintiff was in actual occupation, and that both parties claimed ownership with a counter-claim on file. Because a counter-claim existed and disputed facts abounded, deciding substantive ownership at interlocutory stage was impermissible. Preservation of the status quo on defined terms served both parties without hardship.
Whether an interlocutory injunction can be granted in terms at variance with 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, and the court verified the prayers in the plaint bore on the application
Relying on Dismas Oduor Owuor v Housing Finance Co. (K) Ltd, Winstone v Winstone and McGibbon v McGibbon, the court held that interlocutory orders must support the legal right and relief claimed in the plaint. The court perused the plaint and confirmed the prayers sought had a bearing on the application, and that interim relief is granted in aid of the main relief, per State of Orissa v Madan Gopal Rungta.
Legal principles established
#- An interlocutory injunction must be based on and ancillary to the substantive relief claimed in the plaint; interlocutory orders at variance with the permanent orders sought cannot be granted.
- The court should not decide substantive issues at the interlocutory stage; where disputed facts raise doubt, the court may resort to the balance of convenience.
- The court retains power to preserve suit property on defined terms that maintain the status quo without causing hardship to either party.
Court orders
#- 1.The application dated 28/10/2024 is compromised
- 2.Both parties restrained by themselves, agents, servants, employees or anyone acting on their behalf from sub-dividing, charging, selling, alienating or in any other manner substantially changing the character of land parcels Nos. Makueni/Kiboko B/1231 and Makueni/Kiboko B/1232, pending the hearing and determination of the suit
- 3.No further developments such as constructions to be undertaken by either party pending the hearing and determination of the suit
- 4.No party should interfere with the other's property currently on the suit land pending the hearing and determination of the suit
- 5.Parties directed to keep the peace; a breach entitles the aggrieved party to move the court or relevant authorities for redress
- 6.Costs of the application to abide the outcome of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 rule 2 of the Civil Procedure Rules, 2010
Relief refused
#Injunction restraining the 1st and 2nd defendants from entering, trespassing, possessing, surveying and constructing on the suit properties in the terms prayed
The court found it would be difficult to restrain the defendants in the manner proposed and instead preserved the suit properties on defined terms maintaining the status quo
Costs of the application payable by the 1st and 2nd defendants
Costs were ordered to await the outcome of the suit rather than being awarded to either party
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.
Both parties are hereby restrained either by themselves, their agents, servants, employees or anyone acting on their behalf, from sub-diving, charging, selling, alienating or in any other manner substantially changing the character of land parcels Nos. Makueni/Kiboko B/1231 and Makueni/Kiboko B/1232, 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
One thing is clear to me. That there is need to preserve the suit properties pending the hearing and determination of the suit.
Issues in the judgment
#The judgment is dated 16th March 2026 while the application was dated 28/10/2024 and filed 29/10/2024, an unusually long interval; also the disposition describes the application as 'compromised' rather than allowed or dismissed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muteti v Musuki & 3 others (Environment and Land Case E042 of 2024) [2026] KEMC 69 (KLR)", Case Analysis (2026). Application dated 28/10/2024 filed with the main suit. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/69/eng@2026-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.