Auma & another v Agak & 7 others (Environment and Land Case E338 of 2025) [2026] KEELC 4054 (KLR) (26 June 2026) (Ruling)

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC CASE NO. E338 OF 2025** **MESHACK OCHIENG’ AUMA…………………….………1ST PLAINTIFF** **EMMA KWAMBOKA OINO………………………………2ND PLAINTIFF** **=VERSUS=** **SUSAN MILLICENT AGAK…………………………………1ST DEFENDANT** **ELIZABETH AKINYI NYABUL…..…………………………2ND DEFENDANT** **(Legal Administrators of the estate of Beniah Kingsley Nyabul ( deceased) pursuant to grant of letters of administration Intestate issued on 8th January 2018 in Milimani Succession Cause No. 534 of 2017.)** **JANE ORIEDO WAMUBEYI………………...…………..…3RD DEFENDANT** **MWANAIDI JAOKO SHIUNDU……………………….... 4TH DEFENDANT** **LYDIA NYABUL……………………………………………..5TH DEFENDANT** **CLEMENT NYABUL………………………………………...6TH DEFENDANT** **HUMPHREY ODUOR ODERO………………………...... 7TH DEFENDANT** **DIANA ONGOCHE ODERO……………………………....8TH DEFENDANT** **RULING** 1. By a Notice of Motion dated 14th July 2025, brought under Articles 40 and 159 of the Constitution of Kenya 2010, Sections 1A, 1B, 3, 3A and 63 (c) and (e) of the Civil Procedure Act, Order 40(1) rule 3, 4(1), Order 51 Rule 1,3 and 13(2) of the Civil Procedure Rules, the Plaintiffs/Applicants seek the following orders: * 1. ***Spent.*** 2. ***Spent.*** 3. ***That this Honourable Court be pleased to grant an order of temporary injunction restraining the Respondents and or their agents and any other persons from transferring, alienating, selling, charging or in any way dealing with the property L.R 209/8477 (IR 29259) pending the hearing and determination of this suit.*** 4. ***That pending the hearing and determination of this suit an order be granted restraining the Respondents and or their agents and any other persons from evicting the Applicants and their tenants from the property L.R 209/8477 (IR 29259)*** 5. ***That the costs of and incidental to this application do abide the outcome of the main suit.*** 2. This application is based on the grounds appearing on its face together with the supporting affidavit of the 1st Plaintiff sworn on even date. **THE APPLICANTS CASE** 1. The deponent stated that he and the 2nd Plaintiff purchased the suit property, L.R No. 209/8477 (IR 29259), from the Respondents for Kshs. 15,500,000/-, through a sale agreement dated 30th October 2017. He averred that the 1st and 2nd Respondents acted as the intended administrators of the estate of Beniah Kingsley Nyabul serving as vendors, while the Plaintiffs are the purchasers. It was deponed that the 3rd to 8th Respondents are beneficiaries, each holding equal shares in the estate. 2. He stated that at the time of execution, the succession process was still pending before the court and the grant had not yet been confirmed, a fact known to all parties. However, the parties agreed to commence the process while awaiting the completion of the succession proceedings. He also stated that before the formal execution of the agreement, the intended administrators and all beneficiaries executed a consent to sell on 13th October 2017. 3. He averred that the Plaintiffs duly paid the purchase price and thereafter took possession from March 2018 and have remained in occupation since then. He stated that they had made immense improvements to the property worth millions of shillings while awaiting completion of the succession proceedings in **Milimani Succession Cause No. 534 of 2017.** He stated that the grant of letters of administration intestate was finally issued on 8th January 2018, and that under cover of a letter dated 8th March 2018, Ms Namada & Co. Advocates surrendered the original certificate of title, transfers in triplicate, duly executed by the administrators, and a copy of the grant to the Plaintiffs' advocates to complete the conveyance. 4. He stated that on 15th October 2018, the 5th Respondent filed an affidavit protesting against the confirmation of the grant, which was granted, leading to the sale being nullified under section 71 of the Law of Succession Act. 5. He explained that despite the nullification of the sale, the Plaintiffs continued to occupy the property. He averred that attempts were made between 2020 and 2023 to resolve the deadlock, including a meeting held on 19th August 2020, where the parties agreed, among other resolutions, to appoint an independent valuer to assess the property based only on the original house; however, the valuation did not take place due to reasons attributable to the Respondents. It was deposed that, in mid-2023, a valuation of the suit property conducted by Nairobi City County for land rate adjustments valued the property at Kshs. 14,015,000. 6. The deponent further averred that in a ruling delivered on 26th June 2025, the Succession Court ordered the Plaintiffs, or any other party holding the legal instruments for L.R No. 209/8477 (IR 29259), to release the same to the Deputy Registrar of the High Court Family Division within fourteen days for onward transmission to the administrators of the estate or their respective advocates. 7. He stated that the Plaintiffs stand to lose their lifelong investment in the property comprising the purchase price of Kshs. 15,500,000, and the colossal sums expended in improving it, which would render the application and the entire suit nugatory. He averred that the Plaintiffs have significantly modified the original maisonette by adding a basement level and semi-detached rear extensions, which are currently under tenancy. The deponent contends that his family occupies a four-bedroom master ensuite unit, while the tenanted section comprises two standard two-bedroom master ensuite units and an unfinished bedsitter unit. 8. The deponent contends that the property, considering the improvements made, is currently valued at Kshs. 30,000,000, and that eviction would result in irreparable harm. In conclusion, he urged the Court to allow the application as prayed. **THE 2ND RESPONDENT’S CASE** 1. The 2nd Respondent filed a Replying Affidavit, sworn on 2nd December 2025, on behalf of the 3rd, 4th, 6th, 7th and 8th Respondents. The deponent averred that they did not oppose the application. 2. She further averred that in 2017, all the Respondents agreed and consented to engage the Plaintiffs in the sale of L.R No. 209/8477 (IR 29259), which is the only real property forming part of their late father’s estate. She asserted that the decision to sell the property was driven by urgent financial needs among the beneficiaries, some of whom, including herself, were critically ill and required medical attention that could only be funded from the proceeds of the sale. 3. The deponent averred that after negotiations, the parties executed a sale agreement dated 30th October 2017, which was consented to by all dependants of the estate. She stated that all parties were aware at the time of execution that the succession cause had not yet been finalised and the grant had not been confirmed, but they agreed to proceed with the necessary preliminary steps in anticipation of completing the succession process, which was being handled by Messrs Namada & Co. Advocates. 4. She further stated that the full purchase price was released by the Plaintiffs as follows: Kshs. 11,625,000/- was paid to Messrs Namada & Co. Advocates, the Respondents' then advocates on record; an additional sum of Kshs. 3,605,000 was paid by the Plaintiffs and held in an escrow account between Ms Ayieko Kangethe & Co. Advocates acting for the Plaintiffs and Messrs Namada & Co. Advocates. This amount constituted the final 25% of the purchase price, less Kshs. 270,000, which the Plaintiffs paid on behalf of the estate towards utilities, land rent, and rates accrued at the time of the transaction. She stated that these funds were not released to the Respondents as agreed because some of the Respondents unnecessarily embroiled the estate and the transaction in litigation. 5. She asserted that it would be highly unjust, malicious, clandestine, avaricious, and unconscionable for the Respondents to rescind the agreement on the following grounds: that the Plaintiffs sought to assist the Respondents during a period of urgent necessity; that the agreement was voluntarily and properly executed in good faith with the advice and assistance of legal counsel; that, acting in good faith and relying on the explicit consent and authority of the beneficiaries and administrators of the estate, the Plaintiffs duly paid the full purchase price for the property in question; that the Plaintiffs fulfilled all their obligations arising under the agreement; and that the Plaintiffs have since taken possession of the property and made significant developments and improvements thereon. 6. The deponent stated that, in light of recent developments in Milimani Succession Cause No. 534 of 2017, her aim is to regularise and formalise the transaction so that the purchase price may be released to the Respondents by Messrs Namada & Co. Advocates and the transaction completed lawfully. She asserted that she has no objection to re-executing the transaction to enable the parties to obtain their rightful entitlements, with the suit property going to the Plaintiffs and the consideration to the Respondents. She urged this Court to allow the application as prayed, in order to give effect to the parties' intentions and to prevent injustice. 7. The application was canvassed by way of written submissions. **THE PLAINTIFF’S SUBMISSIONS** 1. The Plaintiff filed their submissions dated 26th February 2026. 2. On behalf of the Applicants, Counsel relied on Order 40 Rule 1(a) of the Civil Procedure Rules, which empowers the court to grant a temporary injunction to restrain any act where property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, until the disposal of the suit or until further orders. Counsel further relied on the principles outlined in **Giella v Cassman Brown & Co. Ltd [1973] EA 358.** 3. Counsel relied on **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR,** which defines a prima facie case as one where, based on the material presented, a tribunal properly directing itself will conclude that a right has apparently been infringed by the opposing party, thus requiring an explanation or rebuttal. Further reliance was placed **on Nguruman Ltd v Jan Bonde Nielsen & 2 Others [2014] eKLR,** where the Court of Appeal held that when considering whether a prima facie case has been established, the Court does not conduct a mini trial and should not examine the merits of the case closely. It is sufficient for the applicant to demonstrate that they have a fair and bona fide question regarding the existence of the alleged right, with the standard of proof being on the balance of probabilities. 4. Counsel submitted that the Plaintiffs have established a prima facie case on two grounds. Firstly, the Plaintiffs are currently in physical possession of the suit property and have paid the full purchase price of Kshs. 15,500,000/- as specified in the sale agreement. Secondly, the ruling delivered on 26th June 2025 in Milimani Succession Cause No. 534 of 2017 directed the Plaintiffs and their Counsel to surrender the original title to the suit property to the Deputy Registrar of the High Court Family Division for onward transmission to the administrators of the estate or their respective advocates. Counsel contended that surrendering the title will trigger a transfer of the property and that the Plaintiffs stand to lose their lifelong investment, which includes the purchase price of Kshs. 15,500,000/-, along with the substantial sums spent improving the property. 5. On irreparable harm, Counsel submitted that, beyond the purchase price paid, the Plaintiffs have incurred additional costs in improving the property and have tenants who would also be prejudiced if the Court declines to grant the orders sought. Counsel further noted that most of the Respondents do not oppose the application. Counsel relied on **Kanorero River Farm Ltd & 3 Others v National Bank of Kenya Ltd [2002] 2 KLR 207,** where Ringera JA held that no party should be permitted to override the statutory rights of another simply because it can pay damages. Further reliance was placed on **Wanaina Kenyanjui & 2 Others v Andrew Ng'ang'a [2013] eKLR,** where the Court held that irreparable damage is established when the injury is of a continuing nature and where no amount of damages could adequately compensate for the harm caused. 6. Counsel submitted that the balance of convenience favours the Plaintiffs. In conclusion, Counsel urged the Court to allow the application as prayed. **ANALYSIS AND DETERMINATION** 1. Having considered the application, the respective affidavits filed in response, and the Applicant’s submissions, the sole issue for determination is whether the Applicants have met the threshold for the grant of an injunction. 2. The law governing applications for injunctions is outlined in Order 40 Rule 1 of the Civil Procedure Rules, which states:- "***Where in any suit it is proved by affidavit or otherwise—*** 3. ***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*** 4. ***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.”*** The principles for granting an injunction were established in the celebrated case of **Giella vs Cassman Brown & Co. Ltd. 1973 EA 358** as follows: ***a) Firstly, the Applicant must show a prima facie case with a probability of success.*** ***b) Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages.*** ***d) Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.*** 1. The first issue for determination is whether the Applicants have established a prima facie case with a probability of success. 2. The principles for granting an injunction were established in the celebrated case of **Giella vs Cassman Brown & Co. Ltd. 1973 EA 358** as follows: ***a) Firstly, the Applicant must show a prima facie case with a probability of success.*** ***b) Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages.*** ***d) Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.*** In the matter at hand, the evidence on record shows that the Plaintiffs entered into a sale agreement dated 30th October 2017 with the 1st and 2nd Respondents, who were acting as the intended administrators of the estate of Beniah Kingsley Nyabul for the purchase of L.R No. 209/8477 (IR 29259) at a consideration of Kshs. 15,500,000. 1. The Plaintiffs paid the full purchase price and took possession of the property from March 2018, subsequently making significant improvements. It is well established that when a purchaser has paid the entire consideration under a sale agreement and taken possession with the consent and authority of all interested parties, a recognisable right in the property arises, which the law will protect until the formal conveyance is completed. 2. The fact that the sale was subsequently nullified under Section 71 of the Law of Succession Act does not extinguish the Plaintiffs' equitable interest arising from full payment of the purchase price and long possession of the property; this interest forms the subject matter of the main suit. Furthermore, the ruling delivered on 26th June 2025 in Milimani Succession Cause No. 534 of 2017, which ordered the surrender of the original title documents to the Deputy Registrar of the High Court Family Division, creates an imminent and concrete risk of the title being transferred to the administrators and subsequently dealt with in a manner prejudicial to the Plaintiffs' claimed interest. 3. It is also notable that most of the Respondents, through the replying affidavit of the 2nd Respondent do not oppose the application and have explicitly stated that their objective is to regularise and complete the transaction. While the non-opposition of most Respondents is not conclusive, it supports the bona fides of the Plaintiffs' claim and the authenticity of the rights asserted. 4. Based on the evidence presented by the parties, this Court finds that the Plaintiffs have established a prima facie case with a likelihood of success. 5. On the second limb, the Applicants must demonstrate that they will suffer irreparable harm that cannot be adequately compensated by an award of damages. In **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR,** the Court of Appeal held that: ***“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be remedied by damages in the absence of an injunction, is a threshold requirement, and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is, injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy***.” 1. The Plaintiffs paid the full purchase price of Kshs. 15,500,000 and have occupied the suit property since March 2018. During that time, they claim to have made substantial improvements to the property, expanding the original maisonette to include a basement level and semi-detached rear extensions, which are currently leased out. The current value of the enhanced property is estimated at KShs. 30,000,000. In this regard, the Plaintiffs presented photographs and a valuation report to support these claims. Surrendering the title, as ordered by the ruling of 26th June 2025, poses a real and immediate risk that the property could be transferred to third parties, making it difficult, if not impossible, to recover the Plaintiffs' interests. 2. This Court is persuaded by the holding in **Isaac Musyoki Komoni v Sammy Kaumbulu Mbuvi [2022] eKLR,** where it was held that if there is a likelihood of property being transferred to third parties, irreparable harm would befall an applicant if such injunctive orders are not granted. The court stated: “***Although the Applicant is not the registered owner of the suit property, there is a real likelihood that the same may be transferred to third parties, and therefore making the process of recovery difficult. The court is therefore convinced that the Applicant stands to suffer irreparable harm that cannot be compensated by way of damages if the suit property is transferred to third parties.”*** 1. The injury claimed involves dispossession from property in which the Plaintiffs have invested their entire purchase price, including the costs of extensive improvements, and cannot be fully remedied by damages, especially given that the possibility of the title passing to third parties remains active. 2. In light of the foregoing, the Court finds that the Plaintiffs would suffer irreparable harm that cannot be adequately compensated by damages if the injunction is refused. 3. On the balance of convenience, the Court must weigh the hardship to be borne by the Applicants by refusing to grant the injunction against the hardship to borne by the Respondents if the injunction is granted. The Plaintiffs have been physically occupying the suit property for over seven years. They have invested substantial sums in improving it and have sitting tenants whose occupation would also be affected. Most of the Respondents support the application and wish to regularise the transaction. Maintaining the status quo until the case is decided does not cause significant prejudice to the Respondents, whereas ending the current occupation could cause serious and possibly irreversible harm to the Plaintiffs. Based on the foregoing, the balance of convenience favours granting the orders sought. 4. The upshot of the foregoing is that the application is merited and is hereby allowed as follows: 5. ***A temporary injunction is hereby issued restraining the Respondents, whether by themselves, their agents, servants, or any other persons acting on their behalf or under their authority, from transferring, alienating, selling, charging, or in any other manner dealing with L.R No. 209/8477 (IR 29259) pending the hearing and determination of this suit.*** 6. ***A temporary injunction is hereby issued restraining the Respondents, whether by themselves, their agents, servants, or any other persons acting on their behalf or under their authority, from evicting the Plaintiffs and their tenants from L.R No. 209/8477 (IR 29259) pending the hearing and determination of this suit.*** 7. ***Costs shall abide with the outcome of the main suit.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 26TH DAY OF JUNE 2026** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Wacera for the Plaintiffs/Applicants Vena – Court assistant