https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4059

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCL CASE NO. E062 OF 2025** **ANNE MUTHONI WAWERU::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF** **VERSUS** **JACINTA KAVIVI KIMEU::::::::::::::::::::::::::::::::::::::::::::DEFENDANT** **RULING** The application is dated 16th May 2025 and is brought pursuant to Article 40 of the Constitution of Kenya, 2010, Section 104 of the Land Act, No. 6 of 2012, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Rules (Cap. 21), Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010 seeking the following orders that; 1. This Application be certified urgent and heard exparte in the first instance for reasons to be recorded. 2. The Defendant whether by herself, her agents, servants, employees, proxies or anyone claiming title or interest through the Defendant be restrained from, entering upon, transferring, accessing, seizing, attaching, repossessing, advertising, offering for sale, auctioning, selling, pledging as security, transferring by auction certificate or otherwise parting with the title documents over the property known as Mavoko Town Block 3/44709 pending the inter-partes hearing of this Application. 3. The Defendant whether by herself, her agents, servants, employees, proxies or anyone claiming title or interest through the Defendant be restrained from, entering upon, transferring, accessing, seizing, attaching, repossessing, advertising, offering for sale, auctioning, selling, pledging as security, transferring by auction certificate or otherwise parting with the title documents over the property known as Mavoko Town Block 3/44709 pending the inter-partes hearing and determination of this suit. 4. The OCPD/OCS at the nearest police station to where the property is located to assist in the enforcement and compliance with this Court's Orders. 5. This Honourable Court be pleased to issue such further or other Orders and directions as it may deem just and expedient. 6. The costs of this application be borne by the Defendants. The application is premised on the grounds that the Plaintiff in 2015 entered into a sale agreement with Benedict Michael Muya for purchase of two (2) acres out of plot number Mavoko Town Block 3/76. The sale agreement was for Kenya shillings Seven Million (Kshs. 7,000,000) and the Plaintiff paid Kenya Shillings Five Million Eight Hundred Thousand (Kshs.5,800,000) leaving a balance of Kenya Shillings One Million Two Hundred Thousand (Kshs. 1,200,000). The vendor died before the sale transaction could be completed. The Defendant is the Deceased's wife and she filed Succession Cause No. 772 of 2015 before the Machakos High Court. It took some time until 2017 when the grant was confirmed. When the Succession Cause was filed, sub-division was done and the Plaintiff was allocated Plot No. Mavoko Town Block 3/44709. The Defendant secretly removed the Plaintiff's name from the confirmed grant and has now registered herself as the owner of the land. The Plaintiff pursued her claim through the Succession Cause No. 772 of 2015 but vide a Ruling delivered on 12th February, 2025, the Court ruled that it had no jurisdiction to determine the matter and advised me to pursue my claim through the Environment and Land Court. The Plaintiff is apprehensive that the Defendant may sell and transfer the land to a third party. The Defendant has refused to be paid the balance of Kenya Shillings One Million Two Hundred Thousand (Kshs. 1,200,000). If the Defendant is not restrained by an order of the Court, she is likely to sell the property. In order to avert great injustice from being visited upon the Plaintiff, it is just and prudent that the Application filed herewith is allowed. This court has considered the application and the submissions therein.The principles of granting temporary injunctions are well settled and are set out in the judicial decision of Giella vs Cassman Brown (1973) EA 358. This position has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of Nguruman Limited vs Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that; *“in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.* *These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”.* Consequently, the Plaintiffs ought to, first, establish a prima facie case. In Mrao Ltd vs First American Bank of Kenya Ltd (2003) EKLR the Court of Appeal gave a determination on a prima facie case. The court stated 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 legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”* The Applicant stated that in 2015 she entered into a sale agreement with Benedict Michael Muya for purchase of two (2) acres out of plot number Mavoko Town Block 3/76. The sale agreement was for Kenya shillings Seven Million (Kshs. 7,000,000) and the Plaintiff paid Kenya Shillings Five Million Eight Hundred Thousand (Kshs.5,800,000) leaving a balance of Kenya Shillings One Million Two Hundred Thousand (Kshs. 1,200,000). The Plaintiff annexed the said sale agreement AMW1. Secondly, the Plaintiff has to demonstrate that irreparable injury will be occasioned to them if an order of temporary injunction is not granted. The judicial decision of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR provides an explanation for what is meant by irreparable injury and it states; *“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.* The Applicant states that the vendor died before the sale transaction could be completed. The Defendant/Respondent is the Deceased's wife and she filed Succession Cause No. 772 of 2015 before the Machakos High Court. It took some time until 2017 when the grant was confirmed. When the Succession Cause was filed, sub-division was done and the Plaintiff was allocated Plot No. Mavoko Town Block 3/44709. The Defendant secretly removed the Plaintiff's name from the confirmed grant and has now registered herself as the owner of the land. She also refused to receive the balance of the purchase price. Thirdly, the Plaintiff has to demonstrate that the balance of convenience tilts in their favour. In the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) EKLR which defined the concept of balance of convenience as: *‘The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.* *In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”.* The decision of Amir Suleiman vs Amboseli Resort Limited (2004) eKLR where the learned judge offered further elaboration on what is meant by “*balance of convenience*” and stated; *“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”* The Applicant/Plaintiff states that she is apprehensive that the Defendant/Respondent may sell and transfer the land to a third party. The Defendant has refused to be paid the balance of Kenya Shillings One Million Two Hundred Thousand (Kshs. 1,200,000). The Respondent admits that the sale sale agreement was entered into. That after her husband’s death she entered into a further sale agreement dated 18th September 2015 where the Applicant was to pay an additional Kshs. 1,000.000/-. That Kshs 500,000/- was to be paid on or before 17th December 2015 and the balance after hand over of all completion documents. Annexed is a copy of the said agreement marked JKM1. That after handing over the completion documents to their lawyers the Applicant never cleared the balance from 2017 to 2020 when she went and picked her documents and rescinded the contract as the Applicant was in breach. 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 1ST DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**