https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3111

Mbae v M’Muthamia (Environment and Land Case E006 of 2026) [2026] KEELC 3111 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELC 3111 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Case E006 of 2026 BM Eboso, J May 19, 2026 Between Timothy Kiogora Mbae Plaintiff and Jediel Mbae M’Muthamia Defendant Ruling 1.Falling for determination in this ruling is the notice of motion dated 4/2/2026, brought by Timothy Kiogora Mbae (referred to in this ruling as “the applicant”]. Through the motion, the applicant seeks an interlocutory injunctive order restraining the defendant/respondent against selling, transferring, charging subdividing or otherwise dealing with land parcel number Abogeta/Lower Kiungone/105 in so far as it affects the 3½ acre portion that he occupies. 2.The application was premised on the grounds outlined in the motion and in the applicant’s two affidavits dated 4/2/2026 and 13/4/2026 respectively. The case of the applicant is that the respondent is his biological father and a brother to one Eliphas Riungu who is now deceased. The suit land, parcel number Abogeta/Lower Kiungone/105, measures 7.4 hectares [approximately 18.27 acres] and is registered in the names of the respondent and the late Riungu, with each of them owning ½ share of the land. 3.The applicant adds that, vide a land gift agreement dated 27/8/2020, the respondent gifted him 3½ acres from his ½ entitlement. At the time of the formal gifting, he was in occupation of the 3½ acre portion and he had developed it. Through the land gift agreement, the respondent undertook to excise the 3½ acre portion and convey it to him. 4.The applicant states that he has his permanent residence on the 3½ acre portion and he has undertaken substantial developments on the land, based on the formal land gift agreement dated 27/8/2020. He adds that the respondent has failed and/or refused to facilitate subdivision and transfer of the gifted portion to him despite repeated requests. The applicant further states that in 2020, the respondent sold a portion of the suit land, adding that he acceded to the sale strictly on condition that the 3½ acre portion which he was occupying would not be affected by the sale. 5.The applicant contends that in 2025, the respondent expressed an intention to sell/dispose the suit land, including the 3½ acre portion where his home stands. It is his case that unless the interlocutory injunctive order is granted, the respondent may sell/dispose the suit land, including the 3½ acre portion that was gifted to him. 6.The respondent opposed the application through grounds of objection dated 10/4/2026 and written submissions dated 10/4/2026, filed by him in person. The case of the respondent is that the application is misconceived, incompetent, bad in law, devoid of merit, and amounts to an abuse of the court process. She contends that the applicant has failed to establish a prima facie case with a probability of success. The respondent further states that the applicant has not demonstrated that he stands to suffer irreparable loss or damage incapable of being indemnified by an award of damages. The respondent adds that the balance of convenience tilts in favour of the respondent. 7.The respondent argues that there is an existing restriction registered against parcel number Abogeta/Lower Kiungone/105 prohibiting any dealings in the parcel, pending finalization of Milimani High Court Succession Cause No.1804 of 2012 relating to the estate of the late Riungu. He states that the applicant lacks the requisite locus standi to institute both the suit and the application. He adds that the land gift agreement dated 27/8/2020 did not confer upon the applicant any proprietory or legally enforceable interest in the suit land. The respondent further states that the purported land gift agreement is incomplete, invalid, unenforceable and void for failure to meet the mandatory legal requirements and is vitiated by the applicant's failure to demonstrate existence of a perfect gift. 8.The respondent contends that the instant application is an attempt by the applicant to obstruct, delay, and complicate subdivision by the applicant’s siblings who are beneficiaries of the suit land. He further contends that the orders sought, if granted, will prejudice the applicant’s siblings, adding that the application fails to meet the threshold for granting an equitable relief. 9.The court has considered the application, the response to the application, and the parties’ respective submissions. The court has also considered the relevant legal framework and jurisprudence. The single issue for determination in the application is whether the criteria for granting an ordinary interlocutory injunction by a trial court has been satisfied. 10.The relevant criteria was outlined by the Court of Appeal for East Africa in the case of Giella v Cassman Brown (1973) EA 358. First, the applicant is required to demonstrate a prima facie case with a probability of success. Second, the applicant is required to demonstrate that if the plea for an interlocutory injunction is declined, he will stand to suffer injury that may not be adequately indemnifiable through an award of damages. Thirdly, should the court have doubt on either or both of the above, the application is to be determined on the basis of the balance of convenience. 11.Over the years, our superior courts have developed a fourth principle to the effect that, at the stage of disposing the plea for interlocutory injunction, the court should refrain from making conclusive or definitive pronouncements on the key issues in the dispute. The courts have emphasized that definitive and conclusive pronouncements/findings should be reserved for the final disposal of the dispute. 12.Has the applicant demonstrated a prima facie case with a probability of success? The Court of Appeal defined a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) (2003) KECA 175(KLR) as follows:“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case......It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 13.At this interlocutory stage, the applicant has demonstrated that the respondent is his biological father and is the registered proprietor of ½ share of land parcel number Abogeta/Lower Kiungone/105 which measures 7.4 hectares [18.27 acres]. He has also demonstrated that in August 2020, vide a land gift agreement dated 27/8/2020, the respondent formally gifted him a 3½ acre portion out of his ½ entitlement comprising of approximately 9.13 acres. He has further demonstrated that, based on the above formal land gift agreement, he proceeded to further develop the 3½ acre portion. He contends, through his affidavit, that the respondent is now bent on selling to a third party the 3½ acre portion that he gifted him in 2020. 14.Faced with the above allegations that were made through an affidavit, the respondent elected not to controvert them through a replying affidavit. He opted to only file grounds of objection. Consequently, the applicant’s interlocutory evidence stands uncontroverted. All that the respondent has stated through his grounds of objection, at this point, is that the land gift agreement does not satisfy the requirements of Section 3(3) of the Law of Contract Act. He has, however, not demonstrated the applicability of Section 3(3) of the Law of Contract Act to a gift. He has also not demonstrated the context in which the agreement dated 27/8/2020 offends the said framework that governs land contracts. 15.Consequently, based on the uncontroverted interlocutory evidence that the applicant has presented, the court is satisfied that he has made out a prima facie case with a probability of success that warrants preservation of the 3½ acre portion through an interlocutory injunction. 16.Has the applicant demonstrated that he stands to suffer irreparable injury that may not be adequately indemnifiable through an award of damages? The 3½ acre portion that is the subject matter of this dispute hosts the applicant’s residence. Disposal of the said portion would culminate in the uprooting of the applicant from his residence. This, in my view, will be injury that may not be adequately indemnifiable through an award of damages. 17.The balance of convenience, similarly, tilts in favour of maintaining the status quo in terms of registration and occupation of the 3½ acre portion. 18.For the above reasons, the application dated 4/2/2026 is allowed in the following terms: -a.Pending the hearing and determination of this suit, the defendant and his agents are hereby restrained against selling, transferring, charging or otherwise dealing or interfering with the 3½ acre portion that he gifted to the applicant in August 2020 out of his ½ share of land parcel number Abogeta/Lower Kiungone/105.b.Unless extended by the court, this interlocutory order will lapse after 12 months.c.Costs of the application shall be in the cause. DATED, SIGNED AND DELIVERED AT MERU THIS 19TH DAY OF MAY, 2026.B M EBOSO [MR]ELC JUDGE