https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3212

Cleland (Suing in her capacity as the Executor/Administrator of the Estate of Njuguna Muchai - Deceased) v Muchai (Environment and Land Appeal E039 of 2025) [2026] KEELC 3212 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELC 3212 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Environment and Land Appeal E039 of 2025 MN Gicheru, J May 19, 2026 Between Wangari Kinya Cleland (Suing in her capacity as the Executor/Administrator Of The Estate Of Njuguna Muchai - Deceased) Appellant and Irene Wambui Muchai Respondent Ruling 1.This ruling is on the notice of motion dated 5-12-2025 . The motion which is by the Appellant is brought under Orders 40 Rule 1 and 51 of the Civil Procedure Rules, Sections 1A,1B,3A and 63 (e) of the Civil Procedure Act, Section 13(7) of Environment and Land Court Act No. 19 of 2011 and all other enabling provisions of the law. It seeks two orders.2.The Respondent, her agents, servants and anybody claiming through her be restrained by way of interim injunction from alienating and converting the parcel of land known as Loc.2/Kinyona/2012 to her use and be particularly restrained from the said land pending the hearing and determination of this appeal or until further orders of the Court whichever is the latest.3.The costs of this application be borne by the Defendant. 2.The motion is based on five (5) grounds and is supported by an affidavit dated 5-12-2025.The gist of the grounds and the affidavit is as follows.Firstly, the Respondent is the registered owner of the suit land. Secondly, the Respondent was engaged in a corrupt scheme when she acquired the suit land. She has alienated the suit land for her own benefit by interfering with it.The Appellant stands to suffer irreparable loss. Thirdly, the status quo is that the Respondent is in occupation of the suit land and the balance of convenience tilts in favour of the Appellant. 3.The motion is opposed by the Respondent in a replying affidavit dated 16-1-205 in which it is stated as follows. One, the motion is bad in law and an abuse of the court process. Two, the allegation of fraud is a blatant falsehood because no fraud was proved in the lower court. Three, the Respondent bought the suit land from the deceased for Kshs.200,000/- and the deceased transferred it to her. As the owner and occupier of the suit land, the Respondent should not be injucted from dealing with her own land. Four, the Appellant lives in the United Kingdom and has not been to Murang'a yet the affidavit dated 5-12-2025 purports to have been sworn at Murang'a. The said affidavit should therefore be struck out. Finally, the motion dated 18-3-2026 seeks to have the affidavit dated 5-12-2025 be expunged from the record. 4.Counsel for the parties filed written submissions dated 16-1-2026 and 3-3-2026 respectively.I have carefully considered the motion in its entirety including the grounds of the motion dated 5-12-2025, the supporting affidavit, the replying affidavits, the motion dated 18-3-2026, the grounds and the supporting affidavit to the said motion, the written submissions by learned counsel for parties and the law cited therein. I find that the following issues arise.i.Whether the Appellant has established a prima facie case with a probability of success.ii.Whether the Appellant stands to suffer irreparable loss than cannot be adequately compensated with an award of damages.iii.In whose favour does the balance of convenience tilt?iv.What does the court make of the allegations that the affidavit dated 5-12-2025 is commissioned at Murang'a by a deponent who was not in Kenya on the said date? 5.On the 1st issue, I find that since the appeal is not yet heard, it is prudent not to make any finding on this issue because it could prejudice the appeal itself. 6.Regarding the 2nd issue, I find that the Appellant has not proved that she stands to suffer irreparable loss that cannot be adequately compensated with an award of damages. She is neither the registered owner of the land nor is she in occupation thereof. She has not indicated what she owns on the suit land that is in danger of alienation by the Respondent. 7.The balance of convenience tilts in favour of the Respondent because she is in occupation and such occupation is not recent. 8.Finally on the commissioning of the affidavit at Murang'a, it is the Respondent alleging that the Appellant was not in Murang'a on 5-12-2025. She has not tendered any evidence on this. The burden is on her to prove that the Appellant was not in Murang'a on the material date. There is no evidence to prove this allegation. 9.In conclusion and for the reasons already stated, I find no merit in the motion dated 5-12-2025. I dismiss the said motion. Costs in the cause.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 19TH DAY OF MAY, 2026.M.N. GICHERUJUDGE.Delivered online in the presence of; -Court Assistant – Mutunga.Appellant's Counsel – Absent.Respondent's Counsel – Mr Kimondo Mubea.