https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3073

Mvurya v Estate of David Kahuha Gitau & 3 others (Enviromental and Land Originating Summons E082 of 2025) [2026] KEELC 3073 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3073 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Enviromental and Land Originating Summons E082 of 2025 MN Kullow, J May 21, 2026 Between Dickson Mwangi Murya Applicant and The Estate Of David Kahuha Gitau 1st Respondent Lul Aden Hussein 2nd Respondent Mohamud Mohmaed Mohamud 3rd Respondent Chief Land Registrar 4th Respondent Ruling 1.What is before the Court for determination is the Applicant’s Notice of motion application dated 19th January 2026 seeking the following ordersi.Spentii.That the court be pleased to give a temporary order restraining the Plaintiff/ Respondent from developing, constructing, entering or any other way interfering with the property known as LR No. 11927/2.iii.That pending hearing and determination of this Application, the court do order that status quo be maintained in respect of property known as L R No 1192772.iv.That this honourable Court do stay, vary and/or review its orders made on 16" January 2026.v.That this honourable Court do order that the 0.C.S Jamuhuri Police Station or any other public officer to Prepare and file a status report of the issue before it makes any further orders or hearing of any of the Applications or the main suit.vi.Costs of the suit. 2.The application is premised on the grounds that the plaintiff in seeking to have injunctive orders, is misleading the court that there are structures on the land which the applicants herein have demolished and further that suit premises is in occupation of the 3rd respondent herein and not the plaintiff 3.The plaintiff filed its replying affidavit sworn on the 27th January 2026 where he deponed that he has been in uninterrupted possession of the suit property since the year 2007 where he has carried out developments on the suit property including the building of a kennel, connected pipped water, electricity an cultivated on the said piece of land .That the 2nd and 3rd respondents having obtained orders in the business tribunal used the said orders to demolish the structures aforementioned in the suit property . 4.The matter was canvassed by way of written submissions, the 2nd and 3rd respondents /applicants filed submissions dated 13th February 2026 whereas the Respondent/plaintiff filed submissions dated 27th January 2026. Analysis and determination 5.Upon considering the application and the filed submissions the only issues for determination is;i.Whether the respondents are entitled to injunctive ordersIn deciding whether to grant the injunctive orders or not it is trite law that I should be guided by the well-established principles enunciated in the locus classicus now famous precedent of “Giella v Cassman Brown [1973] E.A. Page. 358 whose holding is as follows: - “The condition for the grant of an interlocutory injunction are now, I think well settled in East Africa.i.First, an applicant must show a prima facie case with a probability of success.ii.Secondly an interlocutory injunction will be ne normally granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages.iii.Thirdly, if the court is in doubt, it will decide an application on the balance of convenience the issue of prima facie case. 6.The three conditions set out in Giella (supra), need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of:- Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, “These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. If the applicant establishes a prima facie case that alone is not ssufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.’’ 7.The applicants indicated that they had established how they had acquired the suit property and therefore proof of a prima facie case. Counsel argued that the plaintiff/respondent had not demonstrated that he was in a position to compensate the applicants and hence they stand to suffer irreparable and that the balance of convenience titled in favour of the applicants. 8.The plaintiff indicated that the applicant could not ask for status quo orders or injunctive orders being that the applicants had altered the conditions of the subject matter having demolished the plaintiff’s property. I have looked at the photos attached to the replying affidavit. There is a photograph dated 3rd December 2025 and 18th January 2025 and see that there has been an interference with the property from when the first photograph as taken and the 2nd. There is a clear indication of destruction of the structures that were on the suit property. 9.I am of the view that the applicants have not fulfilled the conditions for grant of stay. Their pleadings have no evidence of proof of a prima facie case.In the case of Mrao Vs First American Bank of Kenya Limited & 2 Others (2003) KLR 125, a prima facie case was described 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 that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”There is no documentation pointing to the ownership of the suit property to the 2nd and 3rdRrespondents herein that points out to a right on behalf of the respondents which rights need protection. The applicants have attached a letter from the chief attributing ownership to the 3rd Defendant and a purported lease agreement. The lease agreement is not an ownership document and cannot be used as proof of prima facie evidence.On the issue of irreparable loss, the Applicants do not reside on the suit property. The evidence on record point to the fact that the plaintiff herein is in occupation of the suit property having attached photographs that show the developments made on the said property. The respondent/ plaintiff is likely to suffer more loss should the orders of injunction issue. Final disposition 10.Consequently, I find that the Notice of Motion application dated 19th January 2026 lacks merit and is hereby dismissed. However, I order that parties shall maintain status quo and no party shall develop, construct, and/or interfere with the property pending the determination of the suit. Each party to bear their own costs.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST DAY OF MAY 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Kado for the ApplicantMr. Muthuri for the RespondentPhilomena W . Court Assistant