https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4523

Ethics and Anti Corruption Commission v Dayan Construction Company Ltd & 2 others (Environment and Land Case E459 of 2025) [2026] KEELC 4523 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEELC 4523 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E459 of 2025 MN Kullow, J July 15, 2026 Between Ethics and Anti Corruption Commission Plaintiff and Dayan Construction Company Ltd 1st Defendant Geoffrey Majiwa 2nd Defendant Omar Abdi Farah 3rd Defendant Ruling Introduction 1.The matter is coming up for the determination of the notice of motion application dated 3rd September 2025 which seeks the following ordersa.Spent.b.That pending hearing and determination of this Application, the 1st Defendant /Respondent by himself, his agents, servants and/or employees or any other person interested in the suit premises herein be restrained from trespassing upon, transferring, leasing, wasting, developing, charging and/or dealing in any manner whatsoever with the suit properties LR No19952/4 and LR No 19952/5 comprising of public land other than by way of surrender to the government.c.Costs of the application. 2.The application was premised on grounds as in the supporting affidavit of Rosemary Syokau. She deponed that the suit properties had been subdivided from LR 19952 which belonged to a third entity Pillar amusement park which surrendered and transferred the suit properties to the Applicant. That the suit property then became public land incapable of transfer. 3.She deponed that 2nd and 3rd Defendants fraudulently then caused the suit properties to be allocated and to the 1st Defendant by entering into a lease agreement with the Nairobi city council. That the actions of the 2nd and 3rd Defendants leading up to the creation and alienation of the property are null and void incapable of conferring any rights to the 1st Defendant. 4.That the 1st Defendant might dispose off the property to frustrate any decree that may be passed against them hence this application for injunctive orders 5.The 1st Defendant opposed the application by filing grounds of objection dated 8th July 2025 on the following groundsi.The Applicant ’s Application is misconceived, incompetent, bad in law and an abuse of the process of the Court.ii.The Applicant has failed to establish a prima facie case with a probability of success as required under the principles set out in Giella Vs Cassman Brown & Co. Ltd [1973] EA 358.iii.The suit properties are registered in the name of the 1st Respondent, whose titles are indefeasible and protected under Articles 40 of the Constitution and Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012.iv.The Applicant has not demonstrated, at this interlocutory stage, any fraud, misrepresentation, illegality, procedural impropriety or corrupt scheme attributable to the 1st Respondent capable of impeaching the 1 st Respondent’s registered title within the meaning of Section 26(1) of the Land Registration Act.v.The Certificates of Title in the name of the 1st Respondent constitute prima facie evidence that the person named therein is the absolute and indefeasible owner of the 2 property, and the Applicant has failed to place before this Honourable Court sufficient material to warrant a finding to the contrary.vi.The issues raised by the Plaintiff concerning the legality of the allocation, ownership and root of title are substantive matters requiring full interrogation at trial and cannot properly be determined at an interlocutory stage.vii.The orders sought would have the effect of substantially determining the suit and unjustifiably derogating from the 1st Respondent’s proprietary rights before the Applicant has discharged its evidentiary burden. 6.The matter was canvassed by way of written submissions with the Applicant filing submissions dated 4th June 2026 whereas the 1st Defendant filed submissions dated 8th June 2026. Applicant ’s submissions 7.Counsel submitted on whether the Applicant had met the conditions for issuance of injunctive orders as in the case of Giella Vs Cassman Brown Limited & Anor(1973)EA 358.He submitted that the Applicant had established a prima facie case reiterating the contents in the supporting affidavit that the suit properties had been transferred to the city council of Nairobi from Pillar Amusement park for intended public use and were unavailable for allocation to the 1st Defendant .That the actions of the Defendants were in breach of public interest hence these pleadings which raises triable issues to be determined at a full hearing relying in the case of Ethics and Anti-corruption Commission Vs Githaiga & 4 others ELC Case no E087 of (2022)KEELC 2516(KLR) 8.On the issue of irreparable harm counsel submitted that the matter had been brought on behalf of the public who stand to suffer irreparable harm if the orders are not granted and that based on this loss, the balance of convenience tilted in favour of granting the orders since the suit was in the interest of the public. Respondent’s submissions 9.The 1st Respondent submitted on whether the Applicant had made out a case for the grant of an interlocutory injunction relying in the case Giella Vs Cassman Brown (Supra).On prima facie case counsel indicated that the suit property was registered in the name of the 1st Respondent and that by virtue of section 26(1), of the Land Registration Act that was to be considered prima facie evidence that the suit properties belonged to the 1st Respondent unless fraud had been proven which the Applicant was alluding to but had not proven and would need adjudication on full trial and not on an interlocutory application relying in the case of Airland Tours & Travels Ltd versus National Industrial Credit Bank Milimani High Court Civil Case No. 1234 of 2002On the issue of irreparable loss, the 1st Respondent submitted the Applicant had not demonstrated that it stands to suffer irreparable harm incapable of compensation by an award of damages if the orders sought are declined being that the suit properties are immovable hence their existence is not in danger of being destroyed neither had they proved that the 1st Respondent was utilizing it for the wrong purposes. He submitted the balance of convenience tilted in not granting the orders. Analysis and determination 10.Having considered the pleadings, the replying Affidavit, and the submission of the Applicant, the Court finds that the only substantive issue for determination is whether the Applicant is entitled to the injunctive ordersThe conditions governing the grant of an interlocutory injunction in this jurisdiction are firmly anchored in the celebrated East African decision of Giella Vs Cassman Brown & Co Ltd (supra)where the Court pronounced that an Applicant must first establish a prima facie case with a probability of success, secondly demonstrate that he stands to suffer irreparable injury that would not adequately be compensated by an award of damages, and thirdly, that if the Court is in doubt on the foregoing, the application ought to be determined on the balance of convenience. These three conditions have since been consistently applied by our Courts as the governing standard for injunctive relief. 11.The threshold for establishing a prima facie case was authoritatively settled by the Court of Appeal in Mrao Ltd Vs First American Bank of Kenya & 2 Others (2003) KLR 125 where the Court held that a prima facie case is one in which, on the material presented before the Court, a tribunal properly directing its mind 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. This Court is in full agreement with that formulation and adopts it as the applicable standard 12.In the present case, the Applicant sees injunctive orders on the basis that 1st Respondent in collusion with the 2nd and 3rd Respondents transferred the suit property fraudulently to the 1st Respondent which property is government land incapable of being allocated to private entities parties .It is undisputed that the suit properties are registered in the name of the 1st Respondent and as rightly submitted by the 1st Respondent, the title is protected under section 26(1) of the Land Registration Act unless allegations of fraud are proved . 13.In this case the Applicant has highlighted some discrepancies that lead up to the acquisition of the Applicant ’s title. For instance, the timing of the allotment letter to the 1st Respondent to by Nairobi city council precedes the transfer of the suit property from Pillar Amusement park the initial owners to Nairobi city council. This then raises a question of how the Nairobi city council could have allotted the suit property to the 1st Respondent without itself having acquired the suit properties .These are questions that challenge the process of issuance of title and need to be ventilated on trial. 14.I hold the view that this proof of prima facie case on the Applicant ’s side. A prima facie case does not mean a case that must succeed. If there is enough basis for the court to return a verdict that the Applicant ’s case raises an issue which would require consideration with likelihood of success, a prima facie case is established. In Pius Kipchirchir Kogo v Frank Kimeli Tenai (2018) KEELC 2424 (KLR), Honourable Justice Ombwayo held that;‘Prima Facie case has been explained to mean that a serious question is to be tried in the suit and in the event of success, if the injunction be not granted the Plaintiff would suffer irreparable injury. The burden is on the Plaintiff to satisfy the court by leading evidence or otherwise that he has Prima facie in his favor of him. A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed.’ 15.The Plaintiff is a public body which carries out mandate of protecting public property and enforcing ethical conduct of public officers. In the event the Defendants will be found to have received the suit properties on the basis of fraud, the law provides that it shall be deemed to have been obtained corruptly and resort back to the government. This means that the suit properties if not preserved by this court, will be exposed to danger of disposal and dissipation. In these circumstances, I believe that the Plaintiff/Applicant and the taxpayers will not be able to reach the properties by the time the main suit herein is determined unless orders of injunction prayed in the application are granted. 16.Having found that the Applicant has established a prima facie case with a probability of success and that there is a likelihood of irreparable damages, I do not think that I need to interrogate the test of balance of convenience.The upshot of the above discussion is that the Plaintiff’s application dated 3rd September 2023 is allowed in the following terms;i.That pending the hearing and determination of this suit, an order of injunction be and is hereby issued restraining the 1st Respondent himself, his agents, servants and/or employees or any other person interested in the suit premises herein be restrained from trespassing upon, transferring, leasing, wasting, developing, charging and/or dealing in any manner whatsoever with the suit properties LR No19952/4 and LR No 19952/5.ii.Costs of the application shall be in the cause.It is so ordered. DATED, SIGNED and DELIVERED via e-mail at NAIROBI on this 15th day of July 2026.MOHAMMED N. KULLOWJUDGE