https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4898

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. 56 OF 2023** **AGGREY ODIWUOR KENYATTA::::::::::::::::::::::::::::::::1ST PLAINTIFF** **ALEX MUEMA MAKAU:::::::::::::::::::::::::::::::::::::::::::::2ND PLAINTIFF** **VERSUS** **A'OCI YUBUTA MUHASANYA SALIBOK::::::::::::::::::::1ST DEFENDANT** **JOHN WANYAMA NAMUKOA:::::::::::::::::::::::::::::::::2ND DEFENDANT** **FANUEL ANALO::::::::::::::::::::::::::::::::::::::::::::::::::::3RD DEFENDANT** **EUREKA ESTATES LIMITED:::::::::::::::::::::::::::::::::::4TH DEFENDANT** **BUHUNDA GERMAIN ATIBU::::::::::::::::::::::::::::::::::5TH DEFENDANT** **RULING** The application is dated 19th June 2023 and is brought under Order 40 Rule 1 and 2 of the Civil Procedure Rules, Article 40 of the Constitution of Kenya, 2010, Section 1A and 1B of the Civil Procedure Act seeking the following orders; 1. That this application be certified as urgent that the same be heard ex parte in the first instance. 2. That this Honorable Court be pleased to issue an order of injunction restraining the Respondents herein whether, by themselves, agents, employees, servants, hirelings, or anybody acting on their behalf or claiming under them form selling, subdividing, developing, constructing on, charging, mortgaging, trespassing into or in any manner dealing with all those parcels of land known as Land Reference Numbers 28704 and 26524 pending the hearing and determination of this Application. 3. That this Honorable Court be pleased to issue an order of injunction restraining the Respondents herein whether, by themselves, agents, employees, servants, hirelings, or anybody acting on their behalf or claiming under them form selling, subdividing, developing, constructing on, charging, mortgaging, trespassing into or in any manner dealing with all those parcels of land known as Land Reference Numbers 28704 and 26524 pending the hearing and determination of this suit. 4. That an order of mandatory injunction compelling the Defendants herein whether by themselves, agents, agents, or servants to remove all the illegal and unauthorized structures, and building materials that they have put up on all those parcels of land known as Land Reference Numbers 28704 and 26524 in Mavoko Sub County within Machakos County at their own costs failure to which the Plaintiffs be at liberty to remove the same at the Defendants’ cost. 5. That the OCPD and OCS Mavoko Police Station to ensure that these orders are enforced and fully complied with. 6. That the Respondents do bear the costs of this application. It is based on the following grounds that Article 40 of the Constitution as read together with Sections 26 of the Land Registration Act provides and protects the right to land as property in favor of the registered proprietor thereof. That the 1st Plaintiff is the registered proprietor and owner of all that parcel of land known as Land Reference Number 28704 located in Mavoko Sub County within Machakos County. That the 2nd Plaintiff is the registered proprietor of all that parcel of land known as Land Reference Number 26524 also located within Mavoko Sub County within Machakos County. That the said properties are adjacent to each other and have been vacant until the 6th June 2023 when the 1st Respondent herein, without any justification or color of right, invaded the said properties and started constructing a perimeter wall across the two properties. That the Applicants were shocked, during a routine visit to the two properties on the 6th June 2023, to find the 1st Respondent on the said properties with his workmen busy constructing a perimeter wall around the said properties without the Applicants’ knowledge or consent. That upon inquiry, the Respondent claimed that he was sold the property by the 2nd and 3rd Respondents through the 4th Respondent, a notorious front for land grabbers within Mavoko, but could not produce any valid title documents to back his claim on the suit properties. That although the Applicants have since reported the trespass and the brazen attempt at land grab by the Respondents to the police at Mavoko Police Station, the Applicants are apprehensive that the Respondent might invade the said properties and continue with the illegal construction unless restrained by this Honorable Court. That the Applicants are therefore seeking, through this application, the urgent and potent intervention of this court by way of injunctive orders restraining the Respondents from further interfering with the suit properties pending the hearing and determination of this application and, eventually, the suit. That the interest of justice, therefore, tilts in favor of allowing the instant application. That otherwise the Applicants stand to suffer irreparable harm and damage if the instant application is not heard and determined as a matter of urgency. This court has considered the application and the submissions therein. The issue for determination is whether the Applicant has met the threshold for the grant of a temporary injunction. For an order of injunction to issue, an Applicant must satisfy three conditions set out in the case of Giella vs Cassman Brown (1973) EA 358, namely; establish a prima facie case with a probability of success, irreparable harm that cannot be adequately compensated by an award of damages and if the Court is in doubt, it should decide on a balance of convenience. Order 40 Rule 1 of the Civil Procedure Rules 2010 provides as follows: *“Where in any suit it is proved by affidavit or otherwise— a. that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree;or b. that the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”* In the case of Rockland Kenya Limited vs Elliot White Miller (1994) eKLR, the court held as follows: *“The object of an interlocutory injunction is to protect the Plaintiff against injury by violation of his legal right for which he could not be adequately compensated in damages recoverable in the action if the matters in dispute were resolved in his favour at the trial. However, his need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal right for which he could not be adequately compensated under the Plaintiff’s undertaking in damages if the subject- matter of the trial was decided in his favour. It is a remedy that is both temporary and discretionary. In cases where the legal rights of the parties depend on facts that are in dispute between them, the evidence available to the Court at the hearing of the application for an interlocutory injunction is given on affidavit and is therefore incomplete as it has not been tested by oral cross-examination. At that stage therefore, it is not the function of the Court to attempt to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations.”* The Applicant submitted that the 1st Plaintiff is the registered proprietor and owner of all that parcel of land known as Land Reference Number 28704 located in Mavoko Sub County within Machakos County (annextures AOK1 and AOK2). That the 2nd Plaintiff is the registered proprietor of all that parcel of land known as Land Reference Number 26524 also located within Mavoko Sub County within Machakos County. That the said properties are adjacent to each other and have been vacant until the 6th June 2023 when the 1st Respondent herein, without any justification or color of right, invaded the said properties and started constructing a perimeter wall across the two properties. The County Surveyor produced a survey report dated 11th July 2025 confirming that there has been encroachment and irregular subdivision of the suit properties. The 1st Defendant/Respondent opposed the application vide a replying affidavit dated 23rd October 2023. They submitted that he is the care taker of the 5th Defendant who is a purchaser of the plot that is 50 feet by 100. That they do not share a common boundary with any of the suit plots. Bearing this in mind, I am convinced that there is a risk in not granting orders of temporary injunction than granting them, as I wait to hear the suit on its merits. This is especially so because I have not had opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the current situation on the ground. I have also not had the opportunity to interrogate the annexures therein. In Robert Mugo wa Karanja vs Ecobank (Kenya) Limited & Another (2019) eKLR where the court in deciding on an injunction application stated; *“circumstances for consideration before granting a temporary injunction under order 40 rule 1 of the Civil Procedure Rules requires a proof that any* *property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”* In view of the foregoing, I find that the application is merited and I order that status quo be maintained pending the hearing and determination of the suit. Parties are advised to comply with order 11 and set down the matter for hearing. Costs to be in the cause. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 28TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**