https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3997

***REPUBLIC OF KENYA*** ***IN THE ENVIRONMENT AND LAND COURT AT NAROK*** ***ELC CIVIL SUIT NO. E048 OF 2025*** ***NARAN VELJI ARJAN ……….…………….….…….1st PLAINTIFF/APPLICANT*** ***KHUSHAL NARAN HIRANI…………………....……2ND PLAINTIFF/APPLICANT*** ***VERSUS*** ***DICKSON MUTURI LETURA …………………..1ST DEFENDANT /RESPONDENT*** ***KOSIOM OLE LEMURT….......................…..2ND DEFENDANT/RESPONDENT*** ***WILLIAM KIBET KIPTOO TRADING as*** ***KIPTOO K & CO. ADVOCATES……….……… 3RD DEFENDANT/RESPONDENT*** ***SANIDECO EAST AFRICA LIMITED………...4TH DEFENDANT/RESPONDENT*** ***RULING.*** 1. The Plaintiffs/Applicants herein moved this Court by a ***Notice of Motion Application*** dated ***19th November 2025*** seeking, inter alia, temporary injunctive orders restraining the Defendants, particularly the 4th Defendant, from dealing with land parcel ***CIS-MARA/SIANA 'A'/4001,*** pending the hearing and determination of the suit. 2. The application is premised on an alleged sale transaction between the Plaintiffs/Applicants and the 1stand 2nd Defendants/Respondents in respect of the suit property. The Plaintiffs/Applicants contended that they acquired ***equitable rights*** under the sale agreement and alleged that the subsequent transfer of the suit property to the 4th Defendant/Respondent was ***fraudulent, unlawful***, and intended to defeat their interests. 3. The 4th Defendant opposes the application through the Replying Affidavit sworn by ***Sabuj Kundu*** on ***24th February 2026***, and maintained that it is the registered proprietor of the suit property, having acquired the same lawfully for valuable consideration after conducting ***due diligence*** at the Lands Registry. Further, that the Plaintiffs never acquired any registrable or proprietary interest in the land, never lodged any caution or restriction against the title, and therefore cannot restrain a registered proprietor on the basis of what is essentially a failed contractual transaction. 4. The Court is therefore called upon to determine whether the Plaintiffs/Applicants have satisfied the well-established principles governing the grant of interlocutory injunctions. 1. ***PLEADINGS*** 2. ***Notice of Motion Application dated 19/11/2025.*** 3. The Plaintiffs/ Applicants ***Naran Velji Arjan*** and ***Khushal Naran Hirani,*** vide the instant Application have sought for orders; 4. ***THAT leave be granted to serve the court process by substituted service upon the 1st and 2nd Defendant through one of the daily newspapers of wide circulation*;** 5. ***THAT pending the hearing and determination of this application and the suit herein, an injunction be issued restraining the 4th defendant, their agents, servants, employees, assigns, or anyone whomsoever acting under them or on their behalf from constructing or carrying out any development of all that land parcel known as known as CISMARA/SIANA ‘A’/4001;*** 6. ***THAT pending the hearing and determination of this Application and the suit herein, an injunction be issued restraining the 4th Defendant, whether by themselves, their servants, agents, representatives, assigns, or any other person acting on their behalf, from selling, alienating, or otherwise dealing with any part of the land known as CISMARA/SIANA ‘A’/4001 and this order be noted in the land register in Narok;*** 7. ***THAT the OCS Narok Police Station to ensure compliance of this order;*** 8. ***THAT costs of this Application be provided for.*** 9. The application is premised on the grounds that the 1st and 2nd Defendants allegedly breached the parties' sale agreement ***by fraudulently transferring*** the suit property to the 4th Defendant/Respondent in order to defeat the Plaintiffs'/ Applicants contractual and proprietary interests. 10. The Applicants contended that the 4th Defendant has already commenced construction of structures on the suit property, thereby altering the character of the land, degrading a protected ecosystem, and causing continuing and irreparable harm to their overriding proprietary interest. They further argued that unless restrained, the ongoing developments will permanently defeat their rights. 11. Further, that despite diligent efforts, they have been unable to trace the ***1stand 2nd Defendants*** for purposes of personal service, as previous communication had been conducted through the 3rd Defendant, who no longer acts as an avenue of communication. 12. ***Supporting Affidavit dated 19/11/2025.*** 13. The application is supported by the affidavit ***of Naran Velji Arjan*** sworn on ***19th November 2025***, who deposed that in ***February 2025***, the Plaintiffs/Applicants negotiated with the 1st and 2nd Defendants for the purchase of approximately ***16 acres*** comprised in land parcel ***CISMARA/SIANA 'A'/4001,*** at an agreed purchase price of ***Kshs.*** ***19,920,000/=***. 14. Further, that a sale agreement dated ***4th March 2025,*** was prepared by the 3rd Defendant, who acted for both the Plaintiffs and the vendors, and that the Plaintiffs/Applicants paid a deposit of ***Kshs. 1,500,000/=,*** pursuant to the agreement, with completion scheduled within ninety days. He further averred that after executing the sale agreement, the Plaintiffs entered into a separate agreement with the 4th Defendant as confirmors for the sale of ***10 acres*** out of the property for ***Kshs. 40,950,000/=.*** 15. The deponent further averred that before expiry of the completion period, the 3rd Defendant communicated a purported revocation of the sale agreement on allegations that the Plaintiffs had failed to pay the balance of the purchase price or provide an undertaking, despite no completion notice having been issued. He deposed that the deposit was subsequently refunded through ***RTGS*** but maintained that the Plaintiffs/Applicants remained ready, willing, and able to complete the transaction. 16. He further contended that shortly thereafter he observed construction activities on the suit property and, upon conducting an official search at the ***Narok Lands Registry***, he discovered that the property had already been transferred to the ***4th Defendant***, which transfer he terms ***fraudulent*** and intended to defeat the Plaintiffs' contractual rights. 17. The deponent asserted that unless injunctive orders are granted, the Plaintiffs/Applicants stand to suffer irreparable loss that cannot be adequately compensated by damages and that the balance of convenience favours preservation of the suit property pending determination of the dispute. 18. That the whereabouts of the ***1st and 2nd Defendants*** remain unknown despite reasonable efforts to trace them, noting that the postal address provided in the sale agreement is that of the 3rd Defendant. Consequently, he urged the court to permit substituted service and to grant the interim injunctive orders sought in order to preserve the suit property pending the hearing and determination of the suit. 19. ***The 4th Respondent Grounds of Opposition dated 09/01/2026.*** 20. The 4th Defendant/Respondent opposed the Plaintiffs' Notice of Motion through Grounds of Opposition dated ***9th January 2026***, contending that the application failed to satisfy the legal threshold for the grant of an interlocutory injunction. 21. The 4th Defendant/Respondent maintained that the Plaintiffs/Applicant had ***not established*** a ***prima facie case*** with a probability of success, arguing that the ***allegations of fraud and unlawful transfer were speculative***, ***unsubstantiated***, and ***unsupported by admissible evidence***. It asserted that it lawfully acquired land parcel ***CISMARA/SIANA 'A'/4001***, and as the registered proprietor, its title is protected under ***Sections 24, 25 and 26*** of the ***Land Registration Act***. 22. The 4th Defendant/Respondent further maintained that its construction activities on the suit property were ***lawful*** and ***duly authorized***. It argued that any loss arising from the alleged failed sale agreement was compensable by damages, and that the Plaintiffs had neither pleaded nor proved the existence of any overriding proprietary interest. 23. Further, that the Plaintiffs/Applicants had accepted a refund of the deposit of ***Kshs.*** ***1,500,000/=***, thereby bringing any contractual relationship to an end, and extinguishing any equitable or proprietary claim over the land. The 4th Defendant also accused the Plaintiffs/Applicants of approaching the court with unclean hands by concealing their failure to complete the transaction within the agreed timelines and their acceptance of the refund. 24. It maintained that the balance of convenience favoured the registered proprietor, who had already commenced development of the property, and that the grant of an injunction would unjustifiably interfere with constitutionally protected property rights under ***Article 40*** of the Constitution. Consequently, it urged the court to find that the instant application ***was premature, incompetent***, ***an abuse*** of the court process, and undeserving of the equitable reliefs sought. 25. ***Replying Affidavit dated 12/01/2026.*** 26. The application was also opposed through a Replying Affidavit sworn on ***12th January 2026*** by ***William Kibet Kiptoo***, the 3rd Defendant/Respondent, an advocate who had acted in the impugned transaction. He deposed that although the Plaintiffs/Applicants had expressed interest in purchasing the suit property, the negotiations were based on an oral understanding requiring payment of ten per cent of the purchase price within one month and completion of the balance within the following month. 1. He also averred that the Plaintiffs only paid ***Kshs. 1,500,000***/=, and failed to fulfil their obligations. Further, that although a sale agreement dated ***4th March 2025,*** had been prepared and forwarded to the Plaintiffs/Applicants, they never returned an executed copy nor communicated any intention to proceed, thereby repudiating the transaction. According to the deponent, the deposit was lawfully refunded pursuant to the terms of the agreement after the Plaintiffs/Applicants failed to execute the agreement or provide the necessary undertaking, rendering the completion period irrelevant. 2. The deponent further denied that the Plaintiffs/Applicants acquired any enforceable rights capable of supporting the alleged sub-sale to the 4th Defendant, asserting that the Plaintiffs had attempted to resell part of the property before completing their own purchase. He maintained that the purported revocation communicated on ***14th April 2025,*** was lawful and that no completion notice was required because no binding agreement had been executed. 1. Further, that the refund of the deposit was unconditional and accepted without protest, thereby extinguishing any contractual rights the Plaintiffs/Applicants may have had. He denied any fraud in the transfer of the property, stating that the transfer followed the Plaintiffs' abandonment of the transaction, and that the 4th Defendant acquired the land as a bona fide purchaser for value without notice. 1. He contended that the Plaintiffs/Applicants had failed to satisfy the principles governing the grant of an interlocutory, and that any alleged proprietary interest was speculative and incapable of defeating the registered title held by the 4th Defendant. 1. it was his further contention that the Plaintiffs/Applicants had delayed in asserting their rights, were guilty of laches, had approached the court without clean hands, and were improperly seeking interlocutory orders to reverse a completed and lawful transfer of land. He urged the court to dismiss the instant application with costs. 2. ***Supplementary Affidavit dated 20/02/2026.*** 3. In response, the 1st Plaintiff, ***Naran Velji Arjan,*** swore a Supplementary Affidavit on ***20th February 2026,*** disputing the averments contained in the Replying Affidavit. He reiterated the contents of his earlier supporting affidavit and accused the 3rd Defendant of distorting facts in an attempt to conceal his breach of professional and fiduciary duties owed to the Plaintiffs. 4. He maintained that the sale agreement dated ***4th March 2025,*** had been duly negotiated, executed by all the parties and witnessed by the 3rd Defendant/Respondent, who could not subsequently deny its existence. The deponent argued that the 3rd Defendant's reliance on ***Clause 7*** of the sale agreement to justify the refund was inconsistent with his assertion that no binding agreement existed, and pointed out that under the agreement, any purchaser's default would have entitled the vendors to forfeit the deposit rather than refund it. 5. The deponent further averred that the refund of the deposit and the purported revocation of the agreement occurred on ***14th April 2025***, four days after the property had already been transferred to the 4th Defendant/Respondent on ***10th April 2025***. He asserted that the timing demonstrated a deliberate attempt to conceal the prior transfer and defeat the Plaintiffs' interests. 1. He maintained that under the sale agreement, a notice to complete ought to have been issued before any forfeiture or termination could lawfully occur and faulted the 3rd Defendant for failing to safeguard the Plaintiffs' interests, despite acting as their advocate. 1. He further maintained that the sub-sale agreement with the 4th Defendant/Respondent was validly entered into after execution of the principal sale agreement and that the Plaintiffs possessed equitable rights capable of protection by the court. According to the deponent, the allegations that the Plaintiffs had acted speculatively or opportunistically were false and intended to divert attention from the 3rd Defendant's professional negligence and conflict of interest. 2. Finally, the deponent asserted that the 3rd Defendant/Respondent had failed to produce any evidence that the executed sale agreement was merely a draft and accused him of misleading the court by denying the existence of a binding contract, despite having witnessed its execution. He further contended that the Replying Affidavit itself demonstrated the 3rd Defendant's bias in favour of the 1st and 2nd Defendants and his role in facilitating the impugned transfer to the 4th Defendant. 3. He maintained that ***Clause 11.1*** of the sale agreement preserved the Plaintiffs' rights notwithstanding any delay in asserting them and argued that equity should intervene where parties act to defeat the legitimate interests of others. On that basis, he urged the court to grant the interlocutory injunction sought pending the hearing and determination of the suit 4. ***Replying Affidavit dated 23/02/2026*** 5. The application was further opposed by the 1st Defendant, ***Dickson Letura,*** who swore a Replying Affidavit on ***23rd February 2026*** on his own behalf and on behalf of the 2nd Defendant. He deposed that the sale agreement dated ***4th March 2025*** was executed at a purchase price of ***Kshs.*** ***19,200,000/=,*** and required the Plaintiffs to pay a deposit equivalent to ten per cent of the purchase price upon execution. According to the deponent, the Plaintiffs failed to honour that obligation and instead paid only ***Kshs.*** ***1,500,000/=,*** thereby fundamentally breaching the agreement. 1. He averred that following the execution of the agreement, the Plaintiffs/Applicants went silent, failed to communicate, and did not demonstrate any willingness or readiness to complete the transaction. Consequently, he treated the agreement as ***repudiated and rescinded*** it before refunding the Plaintiffs the sum of ***Kshs. 1,500,000/=***. He maintained that upon the rescission and refund, no contractual relationship remained between the parties. 2. The 1st Defendant further deposed that, after the lawful termination of the agreement and in view of the Plaintiffs' breach, he proceeded to sell the suit property to the 4th Defendant/Respondent, who acquired it lawfully for valuable consideration, and at a time when the Plaintiffs had no subsisting legal or equitable interest in the property. 3. He asserted that the 4th Defendant/Respondent was already in possession and occupation of the suit property and had commenced development thereon, making the injunctive orders sought untenable. He further averred that the Plaintiffs had failed to satisfy the principles governing the grant of interlocutory injunctions. 4. Further, that the Plaintiffs had concealed material facts, approached the court without clean hands, and were therefore undeserving of the equitable relief sought. He consequently urged the court to dismiss the instant application with costs. 5. ***The 4th Respondent Replying dated 24/02/2026*** 6. The 4th Defendant/Respondent also opposed the application through a Replying Affidavit sworn on ***24th February 2026*** by ***Sabuj Kundu***, a director of the Company. He deposed that the 4th Defendant/Respondent was the lawful and registered proprietor of land parcel ***CISMARA/SIANA*** ***'A'/4001***, having acquired it through a valid sale transaction with the registered owners. 7. It was his contention that at the time of registration, there was ***no caution,*** ***restriction, court order, encumbrance***, or ***pending litigation*** affecting the title. He denied any collusion with the other Defendants and maintained that the Company acted throughout in good faith. He acknowledged that the Plaintiffs/Applicants had previously approached the 4th Defendant/Respondent proposing a transaction involving the suit property, but upon conducting due diligence at the Narok Lands Registry, the Company established that the Plaintiffs were neither the registered proprietors nor holders of any registrable interest in the property. 8. Consequently, the 4th Defendant/Respondent declined to transact with the Plaintiffs/Applicants and instead dealt directly with the registered proprietors after confirming that the earlier negotiations with the Plaintiffs had not culminated in a completed transaction. 9. The deponent further averred that the 4th Defendant/Respondent purchased the property lawfully for valuable consideration as a bona fide purchaser for value without notice of any enforceable proprietary rights in favour of the Plaintiffs. That the land register, disclosed no encumbrances, cautions or restrictions, and that the Plaintiffs had never registered any interest against the title. 10. He further stated that the Company's title enjoys protection under ***Sections 24, 25 and 26*** of the ***Land Registration Act*** and that it had already taken possession and commenced development of the property. That the Plaintiffs had failed to establish a prima facie case or any basis for interfering with the rights of a registered proprietor. He therefore urged the court to dismiss the application with costs. 11. ***Supplementary Affidavit dated 20/03/2026.*** 12. In response to the 1st and 2nd Defendants' Replying Affidavit, the 1st Plaintiff, ***Naran Velji Arjan***, swore a Supplementary Affidavit on ***20th March*** ***2026, and*** reiterated the contents of his supporting affidavit and maintained that the Replying Affidavit contained distortions and falsehoods intended to conceal the true facts. He denied that the agreed contractual deposit was ten per cent of the purchase price, asserting that the executed sale agreement expressly provided for a deposit of ***Kshs. 1,500,000/=***. 13. He further maintained that the Plaintiffs/Applicants remained ready and willing to complete the transaction, and that the refund of the deposit on ***14th April*** ***2025,*** was merely a device employed after the property had already been transferred to the 4th Defendant on ***10th April 2025*** in order to conceal the Defendants' breach of contract. 14. He asserted that there had been ***no lawful termination*** of the sale agreement because no notice to complete had been issued as required under ***Clause 7.2*** of the agreement. The deponent further averred that the Plaintiffs/Applicants had acquired beneficial ownership of the property under the agreement and that the 1st and 2nd Defendants thereafter held the legal title in trust for them. He denied that the 4th Defendant/Respondent acquired the property lawfully and contended that there was no documentary evidence supporting that assertion. 15. Finally, he maintained that ***Clause 11.1*** of the sale agreement preserved the Plaintiffs' rights notwithstanding any delay in enforcement and argued that the concerted actions of the Defendants to defeat the Plaintiffs' interests justified the grant of an interlocutory injunction. 16. ***Supplementary Affidavit dated 20/03/2026.*** 17. The Plaintiffs also filed a further Supplementary Affidavit on ***20th March*** ***2026*** in response to the 4th Defendant's Replying Affidavit. The deponent reiterated his earlier affidavits and accused the 4th Defendant of presenting false and misleading facts in an attempt to conceal what he described as a fraudulent and corrupt scheme involving all the Defendants. 1. He asserted that although the 4th Defendant/Respondent was a separate legal entity, its directors and shareholders were foreign nationals, who did not reside in Kenya, thereby creating a risk that the Company might dissipate or conceal its assets to defeat any future judgment. He further alleged that the 4th Defendant/Respondent knowingly induced the 1st and 2nd Defendants to breach the sale agreement with the Plaintiffs and enlisted the assistance of the 3rd Defendant, who had acted as the Plaintiffs' advocate, in order to defeat the Plaintiffs' interests. 2. The deponent denied the 4th Defendant's assertion that it had no knowledge of the Plaintiffs' interest in the suit property, maintaining that the Plaintiffs had dealt with the 4th Defendant as conformers in a sub-sale transaction and that correspondence exchanged between the parties demonstrated that the 4th Defendant was fully aware that the Plaintiffs were in the process of purchasing the property from the 1st and 2nd Defendants. He further contended that the 4th Defendant had produced no documentary evidence demonstrating that it acquired the property lawfully or without notice of the Plaintiffs' interests. 1. The deponent maintained that the Plaintiffs had established a prima facie case with a high probability of success and that the Defendants had acted in concert to defeat the Plaintiffs' contractual and proprietary rights. 2. Further, that unless the court preserved the suit property by granting an injunction, there was a real risk that the 4th Defendant/Respondent would further transfer, alienate or otherwise deal with the property, thereby occasioning irreparable loss that could not adequately be compensated by an award of damages. He accordingly urged the court to preserve the suit property pending the hearing and determination of the suit. 3. **PARTIES SUBMISSIONS** 4. **Plaintiffs/Applicants’ Submissions.** 5. The Plaintiffs/Applicants filed written submissions in support of the instant Notice of Motion urging the court to grant the interlocutory injunctions sought to preserve land parcel ***CISMARA/SIANA*** ***'A'/4001,*** pending the hearing and determination of the suit. 6. The Plaintiffs/Applicants submitted that the dispute arose from what they described as a fraudulent and coordinated scheme involving all the Defendants. That the 1st and 2nd Defendants entered into a sale agreement with them on ***4th March 2025*** for the purchase of the suit property, with completion scheduled within ninety days. 7. However, before the completion date, the 1st and 2nd Defendants allegedly transferred the property to the 4th Defendant on ***10th April 2025*** in breach of the subsisting sale agreement. The Plaintiffs further submitted that the 3rd Defendant, who acted as advocate for both parties, facilitated the breach in violation of his professional obligations, while the 4th Defendant knowingly induced the breach and acquired the property with full knowledge of the Plaintiffs' contractual interests. 8. The Plaintiffs/Applicants also argued that the Defendants had failed to make full and candid disclosure before the court, and had advanced contradictory positions regarding the terms of the agreement, the payment of the deposit, the execution of the sale agreement, and the 4th Defendant's knowledge of the Plaintiffs' interest. 9. On the applicable principles governing interlocutory injunctions, the Plaintiffs/Applicants relied on ***Giella v Cassman Brown & Co. Ltd [1973] EA 358,*** submitting that they had satisfied all the conditions for the grant of temporary injunctive relief. They further relied on ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR***, where the Court of Appeal defined a prima facie case as one disclosing an apparent infringement of a right requiring rebuttal. 10. Applying those principles, the Plaintiffs/Applicants argued that they had established a prima facie case because the property had been transferred to the 4th Defendant/Respondent before expiry of the contractual completion period, thereby violating their contractual and equitable rights. They also relied on ***Chino General Merchants Xtreem Ltd v Chen Zhebit alias Jack & Avic Intl Beijing (E.A.) Co. Ltd [2020] eKLR,*** where the court recognized that a party may maintain an action in tort for inducing breach of contract alongside a contractual claim. 1. Further, the Plaintiffs submitted that the alleged inducement by the 4th Defendant/Respondent and the facilitation of the breach by the 3rd Defendant raised serious triable issues warranting preservation of the suit property pending trial. 2. On irreparable harm, the Plaintiffs/Applicants submitted that land is unique and incapable of adequate monetary compensation. They argued that they had intended to retain six acres of the property, while selling ten acres to the 4th Defendant under a sub-sale arrangement, but the entire parcel had instead been transferred directly to the 4th Defendant. 1. Further, that the ongoing developments on the land had altered its character and ecosystem, thereby occasioning irreparable prejudice. In support of this proposition, they relied on ***Wellfit Investments Ltd v Poly Commerce Ltd [1997] 2 HKC 236,*** where it was observed that the law presumes land to be unique and not readily compensable by damages. 2. Further, they also submitted that there existed a real risk that the 4th Defendant would dissipate the suit property or otherwise defeat the enforcement of any future judgment, particularly because its directors and shareholders were foreigners residing outside Kenya. 3. In support of the argument concerning corporate personality and control, they relied on ***H.L. Bolton (Engineering) Co. Ltd v T.J. Graham & Sons Ltd [1956] 3 All ER 624,*** as affirmed by the Court of Appeal in ***Stephen Njoroge Gikera & Another v Econite Mining Company Limited & 7 Others [2018] eKLR.*** 4. They further cited ***Multi-Code Electronics Industries (M) Bhd & Another v Toh Chun Toh Gordon & Others [2008] SGHC 193 and Norwich Union Fire Insurance Society Ltd v* Eden & Others [1996] Lexis Citation 3249**, for the proposition that allegations of fraud may justify preservatory relief where there is a real risk of dissipation of assets. 5. Finally, on the balance of convenience, the Plaintiffs/Applicants submitted that the inconvenience to them if the injunction were refused would far outweigh any prejudice to the Defendants if the orders were granted, relying on ***Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR.*** They urged the court to preserve the suit property pending determination of the suit. 6. ***The 1st and 2nd Defendant’s Submissions*.** 7. The 1st and 2nd Defendants submitted that the instant Notice of Motion fails to satisfy the legal requirements for the grant of a temporary injunction and should be dismissed with costs, and the urged the court to find so. 1. On the applicable law, they submitted that the Court's jurisdiction to grant temporary injunctions is governed by Order 40 Rule 1 of the Civil Procedure Rules, and that the well-established principles in **Giella v Cassman Brown & Co. Ltd [1973] EA 358** require an applicant to establish a prima facie case with a probability of success, demonstrate that irreparable injury incapable of compensation by damages will result if the injunction is refused, and where the Court is in doubt, show that the balance of convenience favours the grant of the injunction. 2. The Defendants further relied on the Court of Appeal decision in **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR**, where the Court emphasized that the three conditions for granting an interlocutory injunction are separate, distinct, and sequential hurdles, and that failure to satisfy the first condition is sufficient to dispose of the application. 3. Regarding the existence of a prima facie case, the Defendants cite **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125,** where the Court of Appeal defined a prima facie case as one which discloses an apparent infringement of a legal right requiring rebuttal. They argued that the Plaintiffs/Applicants failed to establish any recognizable legal or equitable interest capable of protection since they are neither the registered proprietors nor persons holding any registrable interest in the suit property. They maintained that the Plaintiffs/Applicants have therefore failed to demonstrate any right that has been infringed. 4. The Defendants further submitted that an injunction cannot issue against a party already in possession of the suit property. They relied on ***Ngonda Kalandi v Timothy Mutinda Nzioka, Machakos CMCC No. 82 of 2009,*** where the Court held that an interlocutory injunction cannot restrain a party already in occupation, and on ***Simon Kimemia Muthonde v Moses Mugo Maringa [2014] eKLR****,* where the Court declined to grant an injunction because it would have the effect of evicting a defendant already in possession. 5. On the burden of proof, the Defendants cite ***Winfred Nyawira Maina v Peterson Onyiego Gichana [2015] eKLR,*** submitting that the evidential burden initially rests upon the applicant to establish a prima facie case before it shifts to the respondent. They argued that the Plaintiffs/Applicants have failed to discharge this burden. 6. The 1st and 2nd Defendants/Respondents also submitted that the Plaintiffs/Applicants have not approached the Court with clean hands. They argueld that the Plaintiffs concealed material facts by entering into a sub-sale transaction before completing the principal sale agreement and without the vendors' consent, conduct which demonstrates bad faith and disentitles them to equitable relief. In support of this proposition. 7. Reliance was sought on ***Peter Kairu Gitu v Kenya Commercial Bank Limited & Another [2021] eKLR*,** where the Court reiterated that a party seeking equitable relief must come to Court with clean hands. They also cited ***Showind Industries Ltd v Guardian Bank Ltd & Another [2002] 1 EA 284,*** wherein the Court observed that injunctions are granted sparingly and may be denied where the applicant's conduct does not merit the approval of a court of equity. 8. Further, the Defendants relied on ***Kenleb Cons Ltd v New Gatitu Service Station Ltd & Another [1990] eKLR***, where the Court held that an applicant seeking an injunction must make full and frank disclosure of all material facts and demonstrate a legal or equitable right requiring protection. They submitted that the Plaintiffs' alleged material non-disclosure fatally undermines their application. 9. On irreparable injury, the Defendants argue that the Plaintiffs have failed to demonstrate any harm that cannot adequately be compensated by damages. They submitted that the Plaintiffs/Applicants have never occupied or possessed the suit property, and that any claim arising from the aborted transaction is purely monetary. They relied on ***Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR****,* where the Court explained that irreparable injury is injury which cannot adequately be compensated by an award of damages. 10. Regarding the balance of convenience, the Defendants submit that it overwhelmingly favours maintaining the existing status quo, namely that the 4th Defendant/Respondent remains in possession of the property. where the Court explained that the balance of convenience requires the Court to determine which party would suffer greater inconvenience depending on whether the injunction is granted or refused. 11. Reliance was sought on ***Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR,*** where the Court stated that, in determining the balance of convenience, the Court should weigh the comparative prejudice likely to be suffered by each party and ordinarily preserve the prevailing status quo. 12. Finally, the Defendants relied on ***Virginia Edith Wambui v Joash Ochieng Ougo, Civil Appeal No. 3 of 1987 [1987] eKLR***, where the Court of Appeal held that where there are serious conflicts of fact, the trial court should preserve the status quo until the dispute is determined after a full hearing. 13. They also submitted that the ***prevailing status quo*** is that the Defendants remain in possession of the suit property and that the Plaintiffs/Applicants have never occupied the land. Accordingly, they urged the Court to dismiss the instant application with costs pursuant to Section 27 of the Civil Procedure Act, arguing that costs should follow the event since the Plaintiffs have failed to satisfy the principles governing the grant of interlocutory injunctions. 14. ***The 3rd Defendant/Respondent’s Submissions*** 15. The 3rd Defendant submitted that he was merely an advocate acting as a transaction advocate in the sale of land parcel ***CIS-MARA/SIANA 'A'/4001.*** His role was limited to preparing the sale agreement, witnessing execution where necessary, and facilitating transmission of funds in accordance with his professional instructions. He denied any proprietary interest in the suit property or any participation in the alleged fraudulent scheme pleaded by the Plaintiffs. 16. The 3rd Defendant argued that the Plaintiffs failed to complete the sale transaction by paying the balance of the purchase price within the contractual completion period of ninety days. Consequently, the vendors lawfully rescinded the agreement, issued a notice of revocation on 2nd April 2025, and instructed him to refund the deposit of ***Kshs.1,500,000/=, which*** refund was effected on **14th April 2025**. Following the rescission, the vendors were entitled to dispose of the property to the 4th Defendant. 17. It was further submitted that the Plaintiffs' case was riddled with contradictions, particularly their reliance on what they described as an executed sale agreement. The 3rd Defendant maintained that, as stated in his replying affidavit, only a draft agreement had been prepared and forwarded to the Plaintiffs, who allegedly never returned an executed copy. According to the 3rd Defendant, the Plaintiffs' subsequent production of a purportedly executed agreement raised serious concerns regarding its authenticity and amounted to an attempt to mislead the Court. 18. On whether the Plaintiffs/Applicants had established a prima facie case, the 3rd Defendant/Respondent submitted that they had failed to demonstrate any enforceable legal or equitable right deserving protection. He relied on **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR**, where the Court of Appeal defined a prima facie case as one showing an apparently infringed right requiring rebuttal. He argued that any rights the Plaintiffs were extinguished upon their failure to perform their contractual obligations and the lawful rescission of the agreement. 19. The 3rd Defendant further relied on **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR**, submitting that courts cannot rewrite contracts for parties. Since the Plaintiffs had failed to comply with the agreed payment terms, they could not seek to enforce contractual rights while disregarding their own obligations. 20. He also cited ***Kenya Commercial Bank Ltd v Osebe [1982] KLR*** , for the proposition that rescission restores parties to their original positions. Accordingly, once the deposit had been refunded, the Plaintiffs/Applicants had been restored to their pre-contract position and no longer possessed any enforceable interest capable of supporting injunctive relief. 21. Regarding irreparable injury, the 3rd Defendant submitted that the Plaintiffs would suffer no loss incapable of compensation by damages because the deposit had already been refunded. Any further claim was purely monetary. In support, he relied on ***Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR****, and* ***American Cyanamid Co. v Ethicon Ltd [1975] AC 396.*** 22. On the balance of convenience, the 3rd Defendant argued that the suit property had already been transferred to the 4th Defendant and granting an injunction would disrupt completed transactions and prejudice innocent third parties. He relied on ***East African Fine Spinners Ltd v Bedi Investments Ltd [1994] eKLR,*** submitting that the balance of convenience favours preserving completed and lawful transactions rather than interfering with them. 23. The 3rd Defendant maintained that equitable remedies are only available to parties who come to court with clean hands. Further, that the Plaintiffs/Applicants had defaulted under the sale agreement, had been refunded their deposit, and were now attempting to shift blame to innocent parties, including himself, despite his limited professional role. He urged the Court to dismiss the application for injunction, affirm that he acted strictly within his professional mandate as advocate for the transaction, decline to entertain what he termed speculative and opportunistic claims, and award him the costs of the application. 24. ***The 4th Defendant/Respondent’s Submissions*** 25. The 4th Defendant opposed the instant Notice of Motion and urged the court to dismiss the application for temporary injunction with costs. It submitted that the Plaintiffs were inviting the court to restrain a registered proprietor on the basis of a failed and unperfected contractual transaction, contrary to established principles of land law and equity. The 4th Defendant argued that the dispute was fundamentally contractual, arising from an alleged failed sale transaction between the Plaintiffs and the 1st and 2nd Defendants, and not a dispute concerning proprietary rights over land. 26. The 4th Defendant further submitted that it was not a party to the alleged sale agreement between the Plaintiffs/Applicants and the 1st and 2nd Defendants. That before purchasing the suit property, it conducted due diligence at the Narok Lands Registry and confirmed that the Plaintiffs had neither ownership nor any registrable interest in land parcel ***CIS-MARA/SIANA 'A'/4001, and*** declined to transact with the Plaintiffs and subsequently lawfully purchased the property from the registered proprietors. That the Plaintiffs/Applicants never lodged any caution, restriction, or other encumbrance against the title and therefore had no interest capable of binding either the land or the 4th Defendant. 27. On whether the Plaintiffs/Applicants had established a prima facie case, the 4th Defendant/Respondent submitted that interlocutory injunctions are intended to protect legally recognizable proprietary rights and not mere contractual expectations. It argued that the Plaintiffs/Applicants had failed to demonstrate any proprietary interest capable of protection since they were never registered as owners, never acquired any registrable interest, and had not placed any encumbrance upon the title. Therefore , the Plaintiffs had failed to satisfy the first limb of the principles governing interlocutory injunctions. 28. In support of this argument, the 4th Defendant relied on ***Mbuthia v Jimba Credit Corporation Ltd [1988] KLR 1,*** where the Court held that injunctions in land matters protect proprietary interests; ***R v Fulham Tribunal ex parte Zerek [1951] 2 KB 1,***on the equitable nature of injunctions; ***Giella v Cassman Brown & Co. Ltd [1973] EA 358; Suleiman v Amboseli Resort Ltd [2004] eKLR****,* where the Court emphasized that the lower risk of injustice should guide the exercise of discretion; ***Kenleb Cons Ltd v New Gatitu Service Station Ltd & Another [1990] eKLR,*** which held that an applicant must establish a legal right deserving protection**,** ***Habib Bank AG Zurich v Eugene Marion Yakub, Civil Application No. Nai. 43 of 1982 (unreported),*** which explained that the probability of success merely requires the court to gauge the strength of the case. 1. Regarding irreparable harm, the 4th Defendant argued that the Plaintiffs had failed to demonstrate any injury incapable of compensation by damages. It submitted that the Plaintiffs/Applicants did not own, occupy, or possess the suit property and were merely asserting a contractual expectation arising from an incomplete transaction. Their own pleadings quantified their alleged loss in monetary terms based on intended resale profits and retained acreage, thereby demonstrating that any loss was purely commercial and compensable by damages. 1. In support of these submissions, reliance was placed ***H.L. Bolton (Engineering) Co. Ltd v T.J. Graham & Sons Ltd [1957] 1 QB 159*** on corporate personality, and distinguished authorities such as ***Multi-Code Electronics Industries and Norwich Union Fire Insurance Society Ltd v Eden,***arguing that they concerned Mareva or freezing orders rather than interlocutory injunctions over immovable property. 2. On the balance of convenience, the 4th Defendant/Respondent submitted that it overwhelmingly favoured preservation of its rights as the registered proprietor. It argued that granting the injunction would interfere with perfected proprietary rights, halt ongoing developments on the land, undermine the integrity of the land registration system, and prejudice an innocent purchaser who had acted diligently and in good faith. Conversely, refusing the injunction would not extinguish the Plaintiffs' claim since they could pursue damages against the parties with whom they contracted. 3. To support this position, the 4th Defendant relied on ***Suleiman v Amboseli Resort Ltd [2004] eKLR,*** where the Court held that interlocutory relief should adopt the course carrying the lower risk of injustice, and ***Paul Gitonga Wanjau v Gathuthis Tea Factory Co. Ltd & 2 Others [2016] eKLR,***which explained that the balance of convenience requires the court to determine which party would suffer greater prejudice depending on whether the injunction is granted or refused. 4. Finally, on costs, the 4th Defendant invoked **Section 27(1)** of the ***Civil Procedure Act,*** arguing that costs follow the event, and that the Plaintiffs had unnecessarily invoked the court's equitable jurisdiction despite lacking any proprietary interest capable of protection. 5. **ISSUES FOR DETERMINATION** 6. Having considered the instant Notice of Motion, Affidavits and rival submissions, the following issues arise for determination 7. ***Whether the Plaintiffs have established a prima facie*** ***case with a probability of success.*** 1. ***Whether the Plaintiffs have demonstrated that they will*** ***suffer irreparable injury incapable of compensation by damages.*** 1. ***Where the balance of convenience lies.*** 2. ***Whether the 4th Defendant has demonstrated that it is a bona fide purchaser for value without notice.*** 3. ***Who should bear the costs of the application*.** 4. **ANALYSIS AND DETERMINATION** 5. ***Whether the Plaintiffs have established a prima facie*** ***case with a probability of success?*** 1. The applicable principles governing the grant of interlocutory injunctions were settled in **Giella v Cassman Brown & Co. Ltd [1973] EA 358**, where the Court held that an applicant must establish: 2. ***A prima facie case with a probability of success;*** 3. ***That he stands to suffer irreparable injury incapable of compensation by damages; and*** 4. ***Where the Court is in doubt, it should determine the matter on a balance of convenience***. 5. The Court of Appeal in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR***emphasized that these requirements are sequential and not conjunctive. Unless a prima facie case is established, the Court need not proceed to consider the remaining principles. 6. The meaning of a prima facie case was authoritatively explained *in* ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125;* [2003] eKLR**, where Bosire JA stated: ***"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."*** 1. The Court must therefore determine whether the Plaintiffs/Applicants have demonstrated an enforceable legal or equitable right against the 4th Defendant. 2. From the material before the Court, it is common ground that the Plaintiffs/Applicants were never registered as proprietors of the suit property. Equally, there is no evidence that they lodged any caution, restriction or inhibition against the title before the transfer in favour of the 4th Defendant. 3. The Plaintiffs' claim is founded entirely upon an alleged sale agreement with the 1st and 2nd Defendants. Such an agreement, without registration or completion, creates contractual rights inter partes but does not by itself create a proprietary interest binding third parties. 4. In ***Kenleb Cons Ltd v New Gatitu Service Station Ltd & Another [1990] KLR 557,*** the Court held that an injunction cannot issue unless an applicant demonstrates an existing legal right which has been infringed or is threatened with infringement. 5. The Plaintiffs/Applicants have also alleged fraud and conspiracy. However, allegations of fraud attract a higher standard of proof than ordinary civil claims. The Court of Appeal in ***Kinyanjui Kamau v George Kamau [2015] eKLR***held that fraud must not only be specifically pleaded but must also be strictly proved. 6. At this interlocutory stage, the Plaintiffs/Applicants have not produced evidence demonstrating fraud or collusion on the part of the 4th Defendant/Respondent , sufficient to impeach its registered title. Mere allegations, suspicion, or correspondence allegedly showing awareness of prior negotiations do not amount to proof of fraud. 7. The Court further notes that the 4th Defendant/Respondent acquired registration after carrying out due diligence at the Lands Registry, which revealed no encumbrances affecting the title. 8. Consequently, the Plaintiffs/Applicants have failed to demonstrate that they possess a legally enforceable proprietary right capable of protection by an interlocutory injunction. 9. Accordingly, the Court finds that the Plaintiffs/Applicants have failed to establish a prima facie case with a probability of success against the 4th Defendant/Respondent. 10. ***Whether the Plaintiffs will suffer irreparable injury*** ***incapable of compensation by damages*** 1. Even assuming that a prima facie case had been established, the Plaintiffs/Applicants must further demonstrate that damages would not constitute an adequate remedy. 2. The Court of Appeal in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR*** stated that: *"If damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory injunction should normally be granted."* 1. The Plaintiffs'/Applicants claim arises from an alleged failed sale transaction. Their pleadings quantify the losses allegedly suffered, including anticipated profits from resale of part of the land. Such pleaded losses are clearly monetary and capable of computation. 2. The Court also notes that the Plaintiffs do not occupy the suit property and have not demonstrated any possessory or proprietary interest requiring preservation pending trial. The authorities consistently distinguish between proprietary loss and commercial loss. Where the alleged injury is purely financial, damages ordinarily constitute an adequate remedy. 3. The Plaintiffs/Applicants further contended that ongoing developments by the 4th Defendant may alter the character of the land. However, those developments are being undertaken by the registered proprietor exercising proprietary rights conferred under the Land Registration Act. Without proof of a competing proprietary interest, such developments cannot, by themselves, constitute irreparable injury to the Plaintiffs. 4. The Court therefore finds and holds that any injury the Plaintiffs/Applicants may ultimately establish is capable of compensation through an award of damages. Accordingly, the second limb of the **Giella vs Cassman** test has equally not been satisfied. 5. ***Where the balance of convenience lies*** 6. Where doubt exists, the Court considers the balance of convenience. 7. In ***Suleiman v Amboseli Resort Ltd [2004] 2 KLR 589***, the Court observed that the Court should adopt the course carrying the lower risk of injustice. Similarly, in ***Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR***, the Court held that the balance of convenience depends upon which party stands to suffer greater prejudice from either granting or refusing the injunction. 8. The 4th Defendant/Respondent is presently the registered proprietor of the suit property. It has already undertaken substantial developments thereon, a fact acknowledged even by the Plaintiffs. Granting an injunction would effectively restrain the registered owner from exercising proprietary rights over land lawfully registered in its name. 9. Conversely, refusal of the injunction does not extinguish the Plaintiffs'/Applicants cause of action. Should they ultimately succeed at trial, damages remain available against the parties alleged to have breached the sale agreement. 10. The balance of convenience therefore favours preserving the status quo created by registration rather than disrupting an already completed transfer. Therefore, this Court finds that the balance of convenience tilts overwhelmingly in favour of the 4th Defendant/Respondent. 11. **Costs** 12. Costs follow the event pursuant to ***Section 27*** of the ***Civil Procedure Act*** unless the Court, for good reasons, orders otherwise. Having found that the Plaintiffs/Applicants have failed to satisfy the threshold for grant of an interlocutory injunction, there is no basis for departing from the general rule. **DISPOSITION** 1. Accordingly, and for the foregoing reasons, the Court makes the following orders: 2. ***The Notice of Motion dated 19th November 2025 is hereby dismissed, with costs to the Defendants/Respondents, who participated in the application.*** 3. ***The Plaintiffs/Applicants have failed to establish a prima facie case with a probability of success.*** 4. ***The Plaintiffs/Applicants have failed to demonstrate irreparable injury incapable of compensation by an award of damages.*** 5. ***The balance of convenience tilt in favours of the preservation of status quo, and the status quo is that the 4th Defendant/Respondent is the registered proprietor for now.*** 6. ***Since the 1st and 2nd Defendants/Respondents filed their Replying Affidavit dated 26th Feb 2026, then prayer for substituted service has been overtaken by events.*** ***It is so ordered***. **Dated, Signed, And Delivered Virtually at Narok, This 30th Day of June, 2026** ***L. GACHERU*** ***JUDGE*** ***Delivered online in the presence of*** ***Elijah Meyoki ..Court Assistant*** ***Mr Kalera….for the Plaintiffs/Applicants*** ***Mr Kipela….for 1st and 2nd Defendants/Respondents*** ***Mr Yenko….for 3rd Defendant/Respondents*** ***Mr Charo...for 4th Defendant/Respondent*** ***L. GACHERU*** ***JUDGE.***