https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4836

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KAJIADO** **ELCC 32 OF2020** **CUNIU COMPANY LIMITED……………………………………………....PLAINTIFF** **VERSUS** **COUNTY GOVERNMENT OF KAJIADO. …………………………..…DEFENDANT** **RULING** ***(In respect of the Plaintiff’s Notice of Motion dated 28th August, 2025)*** **Introduction** 1. Before this court for determination is the Plaintiff’s Notice of Motion dated 28 August, 2025. The application which is brought under Sections 33, 36, 37 of the Environment and Land Court Act (Cap. 8D); Sections 65, 66, 67 of the Land Act (Cap. 280); and Orders 21, 22, and 51 of the Civil Procedure Rules, 2010 pursues issuance of following enumerated orders; 2. ***Spent*** 3. ***An order maintaining status quo be issued restraining the Respondents, their agents or servants from further interference with the Applicant's parcel of land known as Plot No. 45 Noonkopir, Kajiado County.*** 4. ***An order directing the removal/eviction of the containers, structures, and any commercial operations currently on the Applicant's property.*** 5. ***That for avoidance of doubt, the interim and permanent orders of injunction earlier issued in respect of Title No. Noonkopir Township/469 be deemed to extend to and include the entire Plot No. 45 Noonkopir as per the approved Part Development Plan No. 24 dated 24th April 2014 and approved on 4th April 2014 measuring 0.084 Ha, inclusive of the omitted 0.0212 Ha portion, pending completion of resurvey and amendment of records by the relevant authorities.*** 6. ***Directions be issued to the relevant enforcement authorities including the OCS Kitengela and/or court bailiff to implement the removal of the containers in the event of non-compliance by the Respondents.*** 7. ***The Respondents be restrained from leasing, letting, or otherwise commercializing the Applicant's land pending hearing and determination of the main suit.*** 8. ***Costs of this application be in the cause.*** 9. ***Further or alternative relief as this Honourable Court may deem just and equitable.*** 10. The motion is premised on the grounds on the face of it and supported by the Affidavit of the Plaintiffs’ Director, **John Kamau Karemaigera**, sworn on 28 August, 2025 who deposes that the Plaintiff is the lawful registered proprietor of Plot No. 45 Noonkopir, Kajiado County, *the suit property herein*, allocated to it vide allocation letter Ref. No. 99110/V/44 dated 26 January 2011. It is alleged that though the original allotment was based on unapproved Part Development Plan (**PDP**), the approved PDP was forwarded to the National Land Commission (**NLC**) Chairperson on 25 April, 2024. 11. The Deponent asserts that the Plaintiff was initially issued with the allotment letter on 20 September, 2011 by the ministry of land through an allotment letter Ref. No. 99110/V/26 and its copy shared with the clerk of County Council of Ol Kejuado. Afterwards, confirmation of the approved PDP No. 24 in accordance with Physical Planning Act (repealed) by Cabinet Secretary for Lands, Housing and Urban Development was done by the Ministry of Lands through its letter dated 25 April, 2014. After that, the Plaintiff made an application to the National Land Commission (NLC) seeking extension of the suit property to reflect the correct acreage of 0.884 ha as per the approved PDP. 12. According to the Plaintiff, correspondences from NLC and other letters confirmed errors of previous survey and showed 0.084ha as the lawful acreage of the suit property. For instance, the NLC in its letter dated 20 July, 2017 acknowledged, confirmed and noted that the Plaintiff was the lawful allottee of the suit property measuring 0.084ha as per the approved PDP and that an erroneous lease was previously prepared using an unapproved PDP. Hence, NLC requested verification of the ground and correction of records accordingly. 13. Secondly, the Defendant’s Director of Physical Planning, through a letter dated 26 July 2017 recommended resurvey to capture 0.084ha when a site visit established that 0.0212ha was omitted in survey. Thirdly, resurveying and amendment of Registry Index Map **(RIM)** in accordance with the approved PDP was reiterated in the NLC’s letter dated 22 Febreuary, 2018 addressed to the Director of Survey. Fourthly, this position was confirmed and certified in September, 2018 by B.M. Okumu of Boma Surveyors Co. Ltd, a licensed surveyor. Fifthly, the NLC was requested by the Ministry of Lands and Physical Planning vide a letter dated 11 July, 2019 to amend the allotment letter to reflect 0.084 as the correct acreage based on the approved PDP. 14. Preceding from the above assertions and injunctive orders issued on 7 April, 2025, the Plaintiff insists that the correct and approved acreage of the suit property is 0.084ha. Consequently, it argues that the objection on acreage extension by the Defendant in its letter dated 7 October, 2024 insisting that it utilizes it as a bus park is inconsistent with all prior correspondences and approvals. Additionally, it condemns the Defendant for commercializing the suit property through erection of containers therein yet it had knowledge of the approved PDP and was aware that the Plaintiff was the lawful owner of the suit property. According to the Plaintiff, these actions are in blatant disregard of injunctive and contempt orders issued against three of its officers to the prejudice of the Plaintiff. **Defendant’s case** 1. Responding to the application, the Defendant has raised grounds of opposition dated 11 December, 2025 through which it argues that; 2. ***The application is fatally defective, misconceived, and an abuse of the court process, having been premised on erroneous facts, misleading representations, and incomplete disclosure of material evidence.*** 3. ***The Applicant has not demonstrated a prima facie case with a probability of success, nor satisfied the threshold for grant of injunctive or preservatory orders under Giella v Cassman Brown principles.*** 4. ***THAT the Respondent lawfully occupies and supervises the land pursuant to (its) statutory mandate under the Physical and Land Use Planning Act, County Governments Act, and the Land Act.*** 5. ***THAT the application seeks mandatory orders disguised as conservatory orders, contrary to established legal principles prohibiting grant of drastic or final orders at an interlocutory stage.*** 6. ***The application is premised on disputed facts that can only be resolved at full hearing through viva voce evidence not at the interlocutory stage.*** 7. ***The application offends the doctrine of exhaustion of administrative remedies, as the Applicant has bypassed statutory mechanisms for boundary correction, resurvey, and approval of PDP amendments.*** 8. ***The Applicant's own documents reveal contradictions in acreage, inconsistent allotment references, and pending surveys, confirming absence of finalized proprietary rights.*** 9. ***The application is vexatious, frivolous, and an attempt to secure ownership public land through judicial shortcuts.*** 10. The Defendant equally opposes by the application through the replying affidavit of its County Land Registrar, **Jonathan Oseur** sworn on 11 December, 2025. The deponent deposes that the application ought to be dismissed with costs being a waste of judicial time, frivolous, premature, unjustified, unmerited, unsubstantiated and vexatious because it has not met the threshold for grant of injunctive and mandamus orders set out in ***Giella v. Cassman Brown (1973)*** ***EA 358***. The deponent further asserts that the application is based on incomplete facts and misrepresentation. 11. According to the Defendant, the Plaintiff has not tendered any valid title documents, approved survey plans, beacons or boundary verification reports and plans or authenticated allocation records recognizing it as the suit property’s owner. It is argued that the allotment letter cannot confer legal ownership nor equate title or certificate of ownership the same being only provisional and unperfected. Further, the Defendant argues that the PDP only designates planning proposals and cannot allocate land. Consequently, it is stated that the Plaintiff’s documents do not demonstrate final approved registration of its interests in the suit property nor is there any official RIM, deed plan or registered survey recognizing its claim for 0.084ha. 12. According to the Defendant, legal rights have not conclusively established in favor of the Plaintiff. Similarly, acknowledgment of the application for acreage correction does not equate to finality of land record or confirmation of the Plaintiff’s ownership of the suit property. The Deponent avows that the surveyor and NLC’s recommendation on resurvey shows that the claim on acreage is unresolved and the conflicting documentation and correspondences confirm that its boundaries are unverified. Further NLC’s correspondences cited by the Plaintiff merely recommend administrative review and correction and cannot grant ownership. 13. The Defendant argue that issuing reliefs on removal, demolition and eviction is impractical and academic for they have been overtaken by events. This is because they are directed at publicly installed containers or structures it has set up, constructed, managed and owned as part of the Defendant’s approved public works programme. Besides, the Plaintiff has not demonstrated how the structures whose erection, licensing and regulating was lawfully done are unlawful or violate its rights. Given that the structures have improved accessibility, aesthetics and value of the area inclusive of the Plaintiff’s premises, the Plaintiff’s assertions that it has suffered loss and inconvenience are contested. Similarly, the allegation that continued occupation and commercialization of the suit property by the Defendant is disobedience of court orders is dismissed. The Defendant asserts that it fully complied with the interim orders, took appropriate legal action and if any non-compliance exists, it is attributable to the procedural misunderstanding or issues beyond its control. 14. Premised on the foregoing, the Defendant is of the opinion that the balance of convenience tilts in favor of preserving the status as is until ownership is determined through a full trial. It is avowed that attempts by the Plaintiff to frustrate legitimate development, revenue collection and settlement approvals through the sought interim measures and orders will occasion severe prejudice to lawful occupants and operations. The Defendant contends that granting the orders sought amounts to rewriting public records; altering official RIM; and validating disputed allotments contrary to pubic interest and statutory mandates. **Plaintiff’s further Affidavit** 1. Through a further affidavit by **John Kamau Karemaigera** sworn on 19 January, 2026 the Plaintiff explains that it purchased the suit property previously known as Plot No. 20, Business, Noonkopir Trading Centre from Gachungu Thuita **(Gachungu)** and its transfer was duly confirmed and recognized by Council in its letter dated 15 August, 1979. Further, the **Council** letter dated 24 May, 2006, confirmed that the suit property emanated from a resolution of the Finance, Staff and General Purposes Committee’s meeting held on 14 October 1977 which was adopted during the full council meeting held on 26 October 1977. In addition, the Permanent Secretary, Ministry of Local Government formally confirmed that the Council approved issuance of title deed to the Plaintiff and Minister for Local Government sanctioned the approval. 2. The Plaintiff claims that the Defendant and its predecessor recognized it as the lawful allotee, occupier and rate payer of the suit property. It has consistently paid land rates without any objection or interruption. Similarly, during its 45 years of open, peaceful, exclusive and uninterrupted possession of the suit property from 1979 to date, no gazette notice, lawful revocation, compulsory acquisition, surrender or reallocation has been undertaken or communicated to the Plaintiff. The aforesaid correspondence proves continuous, consistent and unequivocal recognition of the Plaintiff’s proprietary interest over the suit property which has never been withdrawn, revoked or lawfully challenged. 3. The Plaintiff states that approvals issued on 17 December 1981 by the Council and Kajiado District Health Officer and the District Commissioner, shows that its permanent development now on the suit property were lawfully approved. Further, the size of the suit property as per the unapproved PDP shows its 0.084ha. This was confirmed in the District Physical Planning Officer’s letter dated 3 April 2012 addressed to the Director of Physical Planning which noted full development of the suit property and its allocation to the Plaintiff by the council. Hence, the Deponent insists that the suit property size remains 0.084ha as per the approved PDP dated 27 March, 2012 whose approval was done on 4 April, 2014. 4. According to the Plaintiff, the County Land Registrar’s report dated 28 September, 2025 concerning validation conducted in 2016 which assigned validation No. A78 and A77 to the suit property is incorrect, misleading, contradictory, erroneous, unreliable and not supported by any approved PDP or any lawful subdivision process. It describes A78 and A77 as a developed land reserved for public use contrary to the physical ground reality. Further, it cannot independently or objectively be verified for it was prepared by the Defendant’s employee who is a witness in this suit thus creating a clear conflict of interest while rendering it self-serving. Considering the Defendant has not produced any approved PDP, Gazette Notice, survey approval, consent, or statutory instrument showing the suit property or its portion was reserved for public use or converted into a bus park, the Plaintiff asserts that validation of A78 and A77 post litigation is meant to sanitize unlawful occupation and commercial exploitation of the suit property 5. The Plaintiff insists that the Defendant is estopped from asserting any claims over the suit property for it has consistently acknowledged its ownership, possession, and development. 6. According to the Plaintiff, the purpose of its application is to enforce, clarify and protect existing court orders being undermined by the Respondent because it has unlawfully taken advantage of the erroneous omission of registration of the suit property as 0.212ha during the initial surveys and registration process by placing temporary containers and temporary structures on the omitted portion. As a result, this has materially diminished commercial viability of the Plaintiff’s hotels and shops on the property by limiting access them due to unlawful blockage, obstruction and occupation of the frontage by the Defendant. **Defendant’s further Affidavit** 1. Through a further affidavit by the Defendant’s County Land Registrar, **Jonathan Oseur** sworn on 11 March, 2026, filed in reply to the Plaintiff’s further affidavit, it is reiterated that the Plaintiff has not demonstrated if it complied with the prescribed procedures governing allocation and transfer of public land and ownership. Further, its claims that the suit property was renumbered are not verified nor supported by any authenticated survey records, RIM or official land registry documentation. According to the Defendant, minutes and deliberation of the council committee and correspondences alluded to by the Plaintiff are administrative discussions that cannot confer any proprietary rights because land ownership arises from completion of allocation processes, survey, preparation of deed plan, issuance of lease and registration in the land registry. Equally, the Plaintiff has not produced any valid transfer instrument, sale agreement, council’s consent or registered conveyance indicating that lawful transfer of proprietary rights occurred. The Defendant insists that it lawfully undertook development on the part of public land which it administers as part of its statutory mandate. **Court’s Directions** 1. The court’s directions were that the application be canvassed by way of written submissions. Both sides complied and the court has had occasion to consider the submissions in writing this ruling. **Issues for determination** 1. The sole issue for determination is whether the Plaintiff/Applicant is entitled the orders sought in the application dated 28th August 2025. **Analysis and determination** 1. Temporary injunction orders were issued in this case on 7th July 2025 in favour of the Plaintiff/Applicant as acknowledged in his submissions dated 22nd January 2026. The Plaintiff however submits that the orders were expressly limited in scope to title number Noonkopir/ Township/469 measuring approximately 0.0628 hectares. The orders do not therefore extend to the contested portion measuring approximately 0.0213 hectares, which remains outside the description of the title. 2. The purpose of the Plaintiff's application is to extend the temporary injunction orders to include the contested portion. This is to be achieved by the removal/eviction of the containers, structures and any other operations on the disputed portion. 3. It is noteworthy that the dispute in this matter is yet to be finally determined. It has not been determined whether the Plaintiff is entitled to the so-called disputed area. What the Plaintiff therefore seeks, albeit mischievously, is a final determination of the dispute by way of an interlocutory application. Undoubtedly, the Plaintiff’s application is an interlocutory application which Cotton, LJ in the case of ***Gilbert -vs- Endean (1878) 9 Ch. D,*** defined as; ***“Those applications which do not decide the rights of parties, but are made for purposes of keeping things in status quo till the rights (of parties) can be decided or for purposes of obtaining some directions of the court as to how the cause is to be conducted as to what is to be done in the process of cause for purpose of enabling the court ultimately to decide upon the rights of the parties”*** 1. Closer home, Ringera J, (as he then was) in the case ***Airland Tours and Travel Limited -versus- National Industrial Credit Bank, Nairobi HCCC 1234 of 2002,*** emphasized that an interlocutory application the court is not required to make any conclusive or definite findings of fact or law on the basis of the contradictory affidavit evidence or disputed propositions of the law. 2. I agree with the Defendant’s submission that the application is premised on disputed facts that can only be resolved after a full hearing through viva voce evidence not at the interlocutory stage. 3. Further and more importantly, I have carefully looked at plaint filed by the Plaintiff in this case. The Plaintiff pleads that it is the registered proprietor of the parcel of land Noonkopir Township/469 **measuring 0.0628 hectares**. It seeks a permanent injunction to restrain the Defendant from trespassing into or remaining in possession or interfering with the said plot and secondly an order of eviction. 4. In its application under consideration, the Plaintiff affirms that it seeks to extend the interim injunctive orders issued herein to cover the contested portion measuring approximately 0.0213 hectares. 5. It is well settled by precedent that parties are bound by their pleadings. Again it is trite that no party should be allowed to ‘travel beyond its pleadings’ which is exactly what the Plaintiff seeks to do in this application. It is not allowable. 6. In ***Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR,*** the court was emphatic that; ***“In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”*** 1. The Supreme Court of Kenya in ***Odinga & another -vs- Independent Electoral and Boundaries Commission & 2 others [2017] KESC 31 (KLR****),* while citing the decision of the Supreme Court of India in ***Arikala Narasa Reddy v Venkata Ram Reddy Reddygari & Another Appeal Nos 5710-5711 of 2012; [2014] 2 SCR,*** stated as follows; ***“It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them.”*** 1. Consequently, I disallow the Plaintiff's application dated 28th August 2025 and dismiss it with costs to the Defendant. Ordered accordingly. **Dated, Signed and Delivered at Kajiado Virtually this 24th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Moraa h/b for Mr. Sankale for the Defendant/Respondent N/A by the Plaintiff/Applicant Court Assistant: Alex **M.D. MWANGI** **JUDGE**