Barke Limited & another v Berner & 2 others (Environment and Land Case E039 of 2026) [2026] KEELC 4129 (KLR) (16 June 2026) (Ruling)

Barke Limited & another v Berner & 2 others (Environment and Land Case E039 of 2026) [2026] KEELC 4129 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 4129 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E039 of 2026 TW Murigi, J June 16, 2026 Between Barke Limited 1st Plaintiff Model Homes Limited 2nd Plaintiff and Margaret Mweru Wanyugi Berner 1st Defendant Nairobi City County Government 2nd Defendant The Officer Commanding Police Division (OCPD) Langata Sub County Police Division 3rd Defendant Ruling 1.By a Notice of Motion dated 30th January 2026, brought under Sections 1, 1A, 1B, 3, 3A, 63(c) & (e) of the Civil Procedure Act, Sections 13 and 19(2) of the Environment and Land Court Act, and Order 40 Rules 1(a), 2a & 10(b) of the Civil Procedure Rules, the 1st Plaintiff/Applicant seeks the following orders:i.Spent.ii.Spent.iii.An injunction do issue, pending the hearing and determination of the suit, restraining the 1st Defendant, by themselves, their invitees, servants, agents, licensees, workmen, and/or tenants or otherwise howsoever from trespassing, remaining upon, occupying, leasing, licensing, letting for a peppercorn fee or any sum, constructing upon, carrying on any form of business upon, doing any act prejudicial to the 1st Plaintiff's quiet enjoyment and occupation of the suit property, or otherwise howsoever dealing in the 1st Plaintiff's parcel known as L.R. No. 37/245/5 situate in Nairobi City County, Nairobi West as delineated on Land Survey Plan Number 53456, situate in the Nairobi City County.iv.The Officer Commanding Langata Sub-County Division (OCPD), Langata Police Station, does oversee the strict enforcement and observance of the Orders herein issued.v.The costs of this Motion be to the 1st Plaintiff/Applicant in any event. 2.The application is based on the grounds appearing on its face together with the supporting affidavit of Mukhtar Ahmed Parkar, the 1st Plaintiff’s Director, sworn on even date The Applicant’s Case 3.The deponent averred that the 1st Plaintiff is the registered proprietor of L.R. No. 37/245/5, located in Nairobi West, Nairobi City County, the suit property herein 4.He averred that the 2nd Plaintiff, Model Homes Limited, purchased the suit property for Kshs. 35,000,000/= vide a sale agreement dated June 2016 from the beneficiaries of the Estate of Florence Njambi, deceased, including the 1st Defendant. He explained that the sale was conducted in accordance with the settlement distribution of the late Florence Njambi’s estate in Nairobi High Court Succession Case No. 1668 of 2010. 5.He stated that the vendors accepted the purchase price and that, after the 1st Defendant declined to execute the necessary transfer documents, the transfer was ultimately completed pursuant to a court order dated 6th September 2016. He further averred that the 2nd Plaintiff subsequently nominated the 1st Plaintiff as the entity in whose name the suit property would be registered. He explained that the suit property was transferred to the 1st Plaintiff by a transfer instrument dated 5th June 2024, as reflected in the certificate of title. He maintains that the 1st Plaintiff remains the registered proprietor of the suit property to this date. 6.The deponent stated that the 1st Defendant was the sole occupant of the suit property at the time of transfer. After the transfer was registered, the 1st Plaintiff asked the 1st Defendant to vacate the property, who pleaded for additional time, which the 1st Plaintiff, through its director, Mr Mukhtar Ahmed Parkar, granted on humanitarian grounds. However, she failed to leave the land and continues to occupy it without the 1st Plaintiff's consent, authority, licence, lease, or permission. 7.He argued that the 1st Defendant has no proprietary, legal, or equitable interest in the suit property. He asserted that no transfer, dealing, agreement, lease, or licence has ever been entered into between the 1st Plaintiff and the 1st Defendant, whether directly or by proxy. He contended that no valid dealing in the property could have been registered in favour of the 1st Defendant or any other person without the original certificate of title being produced before the Land Registrar. Based on the foregoing, the Plaintiffs maintained that the 1st Defendant and those claiming through her are trespassers on the suit property. 8.He complained that the 1st Defendant had invited workmen, strangers, agents, servants, or licensees onto the suit property and unlawfully permitted the construction of unauthorised structures. He asserted that the 1st Defendant unlawfully obtained unauthorized approvals to build the illegal structures on the suit property. 9.The deponent stated that on 26th January 2026, the Plaintiff’s director visited the property, where a confrontation occurred with workmen who claimed they had been instructed by the 1st Defendant to enter the land and construct a structure. He averred that construction materials had been deposited on the property and that illegal structures were being erected without the 1st Plaintiff’s authorisation. 10.He further averred that they had reported the matter to the Lang’ata Police Station and had also lodged a complaint with the Nairobi City County Planning Department, asserting that the construction had begun without their consent and without lawful development approvals. 11.The deponent asserts that the 1st Defendant’s conduct threatens the 1st Plaintiff’s proprietary rights under Article 40 of the Constitution as well as its right to legal protection under Article 27 of the Constitution. He argued that, unless restrained, the 1st Defendant and those acting under her authority would continue to enter, occupy, construct, lease, licence, let, farm, use, alienate, or otherwise deal with the suit property, thereby creating an unlawful status quo and diminishing the value of the land. He further argued that the harm would not be adequately remedied by damages because the continued occupation and construction would interfere with the 1st Plaintiff’s right to effective enjoyment, possession, development, and use of its property. 12.He contended that the Plaintiffs have established a prima facie case based on the 1st Plaintiff’s registered ownership of the suit property and the lack of any legal or equitable right in the 1st Defendant. He asserted that the balance of convenience favours maintaining the status quo by preserving the property pending the hearing and determination of the application and the suit. 13.In conclusion, the deponent urged the Court to allow the application as prayed. The 1st Defendant’s Case 14.The 1st Defendant filed a replying affidavit in opposition to the application. She averred that the suit property originally belonged to her late mother and denied any involvement in the sale or purchase transactions in favour of the Applicants. She relied on the title document, particularly Entry No. 13, which she claimed indicated that the property had been transferred to her mother. 15.She further averred that, after her mother’s death, succession proceedings were initiated in Nairobi High Court Succession Cause No. 168 of 2010. She argued that the property was thereafter transmitted to the beneficiaries in specific shares in accordance with the Certificate of Confirmation of Grant dated 30th May 2012. She argued that any subsequent transfer of the entire parcel to the Applicants could not have been legally effected without her consent. 16.She explained that she had entered into an agreement with her mother well before her death to renovate the premises and recover her investment through rental income for an agreed period. Based on this, she denied trespassing on the property. She maintained that there had always been apartments on the land and that her occupation and development of the premises were not unlawful. 17.She disputed the Applicants’ claim that they purchased the suit property from the beneficiaries, including herself. She asserted that she did not offer her share of the suit property for sale to any person, and that the purported transfer of the property to the Applicants was illegal, fraudulent, and unlawful. She further stated that she had expressed interest in purchasing the other beneficiaries’ shares in memory of her late mother, who had frustrated that proposal. 18.She challenged the Applicants’ reliance on the sale price of Kshs. 35,000,000/-, arguing that they failed to demonstrate they purchased the property for that amount. She stated that even if such a sale had taken place, it would not have been valid without her consent. She also claimed that no consideration was ever paid to her and, therefore, the transaction did not meet the threshold for a valid sale regarding her interest in the property. 19.Regarding the Applicants contention that the transfer was executed by the Deputy Registrar pursuant to a Court order dated 6th September 2016, she argued that the order could not defeat her proprietary rights after the property had already been transmitted to the beneficiaries. She maintained that the estate was extinguished once the transmission was effected in favour of the beneficiaries. She asserted that nothing remained in the estate that could justify a court order compelling the transfer of her specific share without her consent. 20.She asserted that the correspondence exhibited by the Applicants demonstrated her attempts to buy out the other beneficiaries, whom she claimed were trying to frustrate those efforts. She also questioned the validity of the valuation report and the sale transaction, noting an inconsistency between them. She further noted that, although the sale agreement was said to have been entered into in 2016, the transfer was effected in 2024, a delay she stated had not been explained. 21.She denied unlawfully occupying the suit property or obtaining illegal approvals from the 2nd Respondent. She stated that she had been paying land rates and that the development on the suit property had been approved by the relevant authorities, including the National Environment Management Authority and the National Construction Authority. She argued that if the Applicants had truly acquired the property, they would have been paying the required rates, which she claimed they had not. 22.She argued that the Applicants’ reliance on Section 26 of the Land Registration Act was misplaced, as registration is not conclusive when the title is challenged on grounds of fraud or illegality. She maintained that it was not enough for the Applicants to produce a certificate of title without demonstrating its root, especially when her consent had not been obtained, and no consideration had been paid to her. 23.She denied being a trespasser on the property, asserting that she has a proprietary interest. She pointed to Entry No. 21 on the certificate of title as evidence that her rights were established when the property was transferred to the beneficiaries. Consequently, she argued that an injunction preventing her from dealing with the property would infringe on her rights and cause her substantial prejudice, especially as she had significantly improved the property. 24.In conclusion, she urged the Court to find that the Applicants had not established sufficient grounds for injunctive relief and to dismiss the application with costs. Analysis and Determination 25.Having considered the application, the respective affidavits and the rival submissions, the only issue for determination is whether the 1st Plaintiff has met the legal threshold for the grant of a temporary injunction. 26.The law governing applications for injunctions is outlined in Order 40 Rule 1 of the Civil Procedure Rules, which provides:“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; orb)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.” 27.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. 28.The first issue for determination is whether the Applicant has established a prima facie case with a probability of success. In Mrao Ltd v First American Bank of Kenya and 2 others, (2003) KLR 125, the Court of Appeal defined a prima facie case as follows:“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 there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter” 29.The 1st Plaintiff’s claim of ownership of the suit property is based on the certificate of title. The Applicant asserts that the 2nd Plaintiff purchased the suit property from the beneficiaries of the Estate of Florence Njambi, deceased, for a consideration of Kshs. 35,000,000/=. The 1st Plaintiff further states that upon purchase, the 2nd Plaintiff nominated it as the transferee, and that the transfer was subsequently effected in its favour. 30.In this regard, the 1st Plaintiff relied on the sale agreement, correspondence related to the transaction, the order issued in the succession cause authorizing the execution of the transfer documents by the Deputy Registrar and the certificate of title. 31.The 1st Defendant does not deny occupying the suit property. Her argument is that the property originally belonged to her late mother and was transmitted to the beneficiaries pursuant to Nairobi High Court Succession Cause No. 1668 of 2010. She contends that she acquired a specific proprietary share in the suit property and that the purported sale and transfer of the entire parcel to the Plaintiffs were unlawful without her consent. 32.The 1st Defendant further argues that she was not a party to any valid sale and that no consideration was paid to her. She maintains that the order relied upon by the Plaintiffs cannot extinguish her proprietary interest in the suit property. She also claims that the 1st Plaintiff’s title is impeachable on grounds of fraud, illegality, and procedural impropriety. She asserts that she has been in possession of the property for a long time, that she renovated the premises in accordance with an arrangement with her late mother, and that the developments complained of were lawful. 33.In this regard, the 1st Defendant relied on an agreement dated 28th August 2001 between herself and her late mother regarding the renovation of the suit property, receipts issued by Nairobi City County, an Environmental Impact Assessment Licence issued by the National Environment Management Authority, and a form submitted to the National Construction Authority for approval. 34.At the interlocutory stage, the Court is not required to make final findings on the contested matters. The evidence also shows that the suit property is subject to competing proprietary claims. The issues of the validity of the 1st Plaintiff’s title, the legality of the transfer, the effect of the succession proceedings, or whether the 1st Defendant’s alleged beneficial interest survived the sale and transfer can only be determined in a full trial where parties will have the opportunity to call evidence and challenge the same by cross-examination. 35.Based on the evidence presented by the parties, this Court is satisfied that the 1st Plaintiff has established a prima facie case with a probability of success. 36.On the second limb, the Applicant must demonstrate that it will suffer irreparable harm that cannot be adequately compensated by 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 its 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 an adequate remedy.” 37.The 1st Plaintiff presented photographs and correspondence showing that construction activities are ongoing on the suit property. Construction on disputed land, if allowed to continue unchecked, may alter the property's character, complicate possession, and hinder the enforcement of final orders. Where ownership is disputed, continued development may cause prejudice that cannot be adequately addressed by damages alone. The Court is therefore convinced that the Applicant stands to suffer irreparable harm that cannot be remedied by damages. 38.On the third limb, the Court must weigh the hardship to be borne by the Applicant in refusing the injunction against the hardship to be borne by the Respondent if it is granted. In Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR.“The meaning of balance of convenience in favour of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiff, 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 the balance of convenience, it is really the balance of inconvenience, and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the plaintiffs have 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 it.” 39.The 1st Defendant currently occupies the suit property and asserts a proprietary interest arising from succession proceedings. An order restraining her from remaining on the property would effectively operate as an eviction order before trial. Such an order would determine possession at an interlocutory stage without the benefit of tested evidence. 40.Conversely, allowing the 1st Defendant to continue construction, leasing, or dealing with the property could alter the subject of the suit and result in potential waste. The appropriate order, therefore, is one that preserves the suit property in its current state pending the hearing and determination of the suit. 41.In light of the foregoing, I find that the balance of convenience favours an order to maintain the status quo, restraining further construction, alienation, leasing, charging, or any other dealings that could alter the character, possession, or legal status of the suit property pending trial. 42.The Plaintiffs sought an order directing the Officer Commanding Lang’ata Sub-County Division to oversee enforcement of the orders issued. Police assistance might be necessary when an order requires maintaining peace or enforcing Court directions. However, the police should not be deployed to help either party gain possession or to evict the other without an explicit eviction order. Their role, if necessary, should be limited to ensuring peace and compliance with the preservatory orders issued by the Court. 43.The upshot of the foregoing is that the application dated 30th January 2026 is merited and is hereby allowed in the following terms:a.Pending the hearing and determination of the suit, the 1st Defendant, whether by herself, her agents, servants, employees, licensees, tenants, workmen or any person acting under her authority, is restrained from undertaking any further construction, demolition, alteration, extension or development on L.R. No. 37/245/5, Nairobi West.b.Pending the hearing and determination of the suit, the 1st Defendant is restrained from selling, transferring, charging, leasing, licensing, letting, alienating or otherwise dealing with L.R. No. 37/245/5 in a manner that may alter its legal status or prejudice the rights of the parties before the suit is heard and determined.c.For the avoidance of doubt, the orders granted herein shall not operate as an eviction order against the 1st Defendant and shall not be construed as authorizing the Plaintiffs to remove the 1st Defendant from occupation before the substantive dispute is heard and determined.d.The parties shall preserve the suit property in its present state pending the hearing and determination of the suit.e.Costs of the application shall abide with the outcome of the suit. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 16th DAY OF JUNE 2026……………………………………HON. T. MURIGIJUDGEIn the presence of:Harrison Kinyanjui for the ApplicantAhmed – Court assistant