Mbuthi v Muoki & 2 others (Environment and Land Case E038 of 2024) [2026] KEELC 3068 (KLR) (21 May 2026) (Ruling)

Mbuthi v Muoki & 2 others (Environment and Land Case E038 of 2024) [2026] KEELC 3068 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3068 (KLR) Republic of Kenya In the Environment and Land Court at Makueni Environment and Land Case E038 of 2024 EO Obaga, J May 21, 2026 Between Stephen Kyalo Mbuthi Plaintiff and Mwalimu Muoki 1st Defendant Musa Malii 2nd Defendant Mwikali Mutisya 3rd Defendant Ruling 1.This is a ruling in respect of a notice of motion dated 27th November, 2024 in which the Plaintiff/Applicant seeks the following orders:1.Spent2.Spent3.That pending the hearing and determination of the suit, the honourable court be pleased to issue an injunction against the Respondents herein from trespassing, destroying, cutting trees, grazing cattle, digging, cultivating or in any other way dealing or interfering with the Applicant’s peaceful occupation and possession of all that parcel of land known as plot number 40, Kathyaka Settlement Scheme belonging to the Applicant.4.That the OCS Kibwezi police station, or any other officer designated by him do ensure the compliance of the orders of this honouranble court.5.That the costs of this application be borne by the Respondents. 2.The Applicant contends that he is the beneficial owner of Plot No. 40, Kathaka Settlement Scheme which measures approximately 13.0966 acres or 5.3 hectare (suit property). The suit property is a combination of various plots he purchased from various persons including 4 acres which he purchased from the 1st Defendant/Respondent’s father. 3.The Applicant states that on diverse dates beginning August, 2024, the 1st Respondent trespassed on to the suit property and destroyed trees growing on the same. The 1st Respondent also allowed the 2nd and 3rd Respondents to graze their animals on the suit property. Reports on the trespass to Kibwezi police station did not elicit any assistance. The police however caused the Kenya Forest Officials to go to the ground where they assessed the damage to the trees at Kshs.34,869/=. 4.The Applicant also engaged surveyors from Makueni County who went to the ground and ascertained that the encroached area measures 1.69 acres. He also obtained letters from the Lands Office confirming that he is the owner of the suit property. It is on this basis that he is seeking the orders set out in paragraph 1 hereinabove. 5.The Respondents did not file any replying affidavit in opposition to the Applicant’s application. They instead chose to rely on a document titled “supporting affidavit in reply to the preliminary objection”. The preliminary objection which the Respondents had raised was dismissed with costs to the Applicant in a comprehensive ruling delivered on 17th July, 2025. 6.I do not wish to deal with the issues which were raised in the notice of preliminary objection as the issues are the same as those which were raised in the document which the Respondents are relying on in opposition to the application before me. I will only deal with the issue of injunction. 7.The parties were directed to file written submissions. The Applicant filed submissions dated 11th October, 2025. The Respondents filed submissions dated 17th February, 2026. I have considered the Applicant’s application as well as the submissions by the parties. Technically, the application is not opposed as the document relied on did not address the issue of grant of injunction. I will nevertheless determine the issue whether the Applicant has met the threshold for grant of injunction. 8.The principles for grant of an interlocutory injunction were set out in the case of Giella –vs- Cassman Brown & Co. Ltd (1973) EA 258. First an Applicant must demonstrate that he has a prima facie case with probability of success. Second, an injunction will not be granted if damages will be an adequate remedy. Third, if the court is in doubt, it will decide the application on a balance of convenience. 9.A prima facie case was defined in the case of Mrao –vs- First American Bank of Kenya Ltd & 2 Others KECA 175 (KLR) as follows:“So what is a prima facie case: I would say that in civil cases it is a case in 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”. 10.I have looked at the materials placed before me. There is no doubt that the Applicant has demonstrated that he has a prima facie case with probability of success. Surveyors went to the ground and ascertained that the area of encroachment was 1.69 acres. The damage caused to the trees was assessed by Kenya Forest officials. 11.The facts placed before the court is that the damaged trees included indigenous trees. The court takes judicial notice that indigenous trees take long to grow and mature. The trespass complained of is of a continuous nature. In the circumstances the Applicant will suffer damage which will not be adequately compensated in damages. 12.This court does not entertain any doubts based on the materials placed before me. The balance off convenience tilts in favour of the Applicant who prima facie has shown that he owns the area which is being complained. I therefore allow the Applicant’s notice of motion dated 27th November, 2024 in terms of prayer 3 and 5. As it is evident that the subject matter of the suit is only comprised of 1.69 acres, this suit is transferred to Makindu Senior Principal Magistrates court for hearing and disposal.It is so ordered. HON. E. O. OBAGAJUDGERULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 21ST DAY OF MAY, 2026.In the presence of:Mr. Mutua for Plaintiff/Applicant.Mr. Kivindyo for Defendant.Court assistant – Kilonzo and Musyoki