Kamweli Petroleum Oil Kenya Limited v Muli & 3 others (Environment and Land Case E004 of 2025) [2025] KEELC 7970 (KLR)

Kituku brought a suit against the 4th Defendant/Respondent including his mother Nzisa Muli. This suit was fully heard and in a judgment delivered on 19th July, 2001, the 4th Respondent in this matter including his mother were ordered to be evicted from the suit property. 3. The 4th Respondent’s mother preferred an appeal to the Court of Appeal at Nairobi but the appeal abated owing to her death and failure to substitute the deceased. The 4th Respondent and his siblings filed a case before Machakos Environment and Land Court which case was transferred to Makueni but it also abated after the death of Kimwele Mwangangi Kituku. 4. The suit property was registered in the name of Kamweli Mwangangi Kituku on 6th August,1993. The Applicant herein became registered owner of the suit property on 5th September, 2018. In 2025, the Applicant filed a suit against the Respondents for a declaration that it was the registered owner of the suit property and for eviction orders. Applicant’s contention 5. The Applicant contends that the Respondents trespassed into the suit property in 2015 and that they have since remained thereon and have prevented it from developing the land. The Applicant states that the Respondents have put up several semi-permanent structures on the suit property. 6. The Applicant states further that the Respondents have continued with their activities despite a judgment delivered on 18th July, 2001 in Machakos HCCC No. 256 of 1996 which restrained them and their servants from remaining or occupying the suit property. The Applicant further states that efiorts to have them vacate the suit property have failed. Respondents’ contention 7. The Respondents opposed the Applicant’s application based on a replying afidavit sworn on 30th April, 2025. The Respondents contend that the Applicant claims that they entered into the suit property in 2015 when there existed a suit in 1996 which was seeking their eviction. They state that a caution against the suit property was irregularly removed paving the way for transfer of the suit property to the Applicant. 8. The Respondents contend that if the Applicant’s application was to be granted, they will be evicted from land they have known as home for 70 years. 9. In a further afidavit by the Applicant sworn on 23rd June, 2025, the Applicant states that the issue of ownership was conclusively settled via Machakos HCCC No. 256 of 1996 where the allegations of fraud were addressed and cannot be reopened in this case. Submissions by the Parties 10. The parties were directed to file written submissions. The Applicant filed submissions dated 30th June, 2025. The Respondents filed their submissions dated 13th July, 2025. 11. The Applicant submitted that it had met the conditions set out in the case of Giella v Cassman Brown & Co. Ltd (1973) EA 358. 12. The Respondents submitted that the suit property was ancestral land which should not have been sold without spousal consent. The Respondent relied on the case of Mugo Murwa Investment Ltd v EWB & SB where it was held that a property registered in the name of the husband is for the benefit of his wife and children. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7970/eng@2025-11-19 2

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Analysis and Determination 13. I have carefully considered the Applicant’s application as well as the opposition to the same by the Respondents. The only issue for determination is whether the Applicant has met the threshold for grant of a temporary injunction. 14. The principles for grant of a temporary injunction were set out in the case of Giella (Supra). An Applicant has to show that he has a prima facie case with probability of success. An Applicant has also to show that he will sufier irreparable injury which will not be compensated in damages. If the court is in doubt, it will decide the application on a balance of convenience. 15. In the instant case the dispute over the suit property was determined on 18th July, 2001. An eviction was given the Defendants in that case were ordered to vacate within 90 days. For more than 24 years the decree in that suit was not executed. The decree in that case is stale and cannot be executed. In considering whether the Applicant has a prima facie case the issue of execution by filing a fresh suit comes into issue. With this in mind I do not see what prima facie case the Applicant has to warrant issuance of a temporary injunction. Disposition 16. The Applicant has not demonstrated that it will sufier injury which will not be compensated in damages. Even if the court was to be in doubt, the balance of convenience tilts in favour of the Respondents who have been in possession. I therefore find no merit in this application which is dismissed with costs to the Respondents. It is so ordered. ................................................... HON. E. O. OBAGA JUDGE RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 19TH DAY OF NOVEMBER, 2025. In the presence of: Mr. Osoro for Respondents. Ms. Kwoma for Mr. Mulwa for Applicants. Court assistant – Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7970/eng@2025-11-19 3

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