https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5188

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELCLC NO. E016 of 2025** **ETHICS AND** **ANTI- CORRUPTION COMMISSION………………….APPLICANT** **-VERSUS-** **JOHN MUYESU KAISHA &** **SUSAN IMINZA KAISHA & 1 OTHER …………RESPONDENTS** **RULING** **Introduction** 1. Before court is a Notice of Motion application dated20th May 2025 filed by the plaintiff seeking the following orders: 2. **Spent.** 3. **Spent.** 4. **That pending inter-partes hearing and determination of this suit the 1st and 2nd Defendants/ Respondents by themselves, their agents, servants and/or assigns be restrained from alienating, selling, charging or further charging, leasing, developing, sub-dividing, transferring, wasting, disposing or in any other manner dealing with land parcel Kakamega Municipality Block III/218( the suit property).** 5. **That the costs of this application be provided for.** 6. The application is supported by the affidavit of Jackson Kaptum, sworn on 20th May 2025. He describes himself as a forensic investigator working with the applicant. He depones that the applicant received information that land parcel No. Kakamega Municipality Block III/218, situated in the Milimani area of Kakamega Town, is public land that was illegally allocated to the late Jemimah Khavere Kaisha, and upon succession of her estate, it devolved to the 1st and 2nd respondents. That following investigations, the applicant established that the parcel measures approximately 0.4971 hectares and contains a residential house marked KAK/HOU/MG/72, which was completed in 1970. That the investigations further revealed that the property had been allocated to the late Jemima Khavere and was subsequently transferred to the 1st and 2nd respondents through Succession Cause No. 1077 of 2000. 7. The applicant further avers that the suit property is currently occupied by a public officer, Mr. Joseph Satia, the Deputy County Commissioner, Navakholo Sub-County, who pays a monthly rent of Kshs. 8,000 to the State Department for Housing. It is deponed that, notwithstanding the Government’s occupation of the premises, the title documents remain in the possession of the 1st and 2nd respondents, who, by a letter dated 5th November 2021, issued a notice requiring the occupant to vacate the property. The applicant further states that investigations established that on 1st November 1994, the 3rd respondent irregularly issued a letter of allotment in respect of the suit property to the deceased, Jemima Khavere, and thereafter processed and registered a lease in her favour. According to the applicant, the suit property had been reserved as Government housing for public use and was therefore not available for allocation or alienation to a private individual. 8. It is the applicant’s contention that the title held by the 1st and 2nd respondents was unlawfully acquired and is therefore invalid. The applicant further contends that unless the orders sought are granted, the 1st and 2nd respondents may alienate, transfer, or otherwise deal with the suit property in a manner that would render these proceedings nugatory and occasion irreparable loss to the public through the continued unlawful occupation and dealing with public land. 9. The application is opposed. The 2nd respondent, Susan Iminza Kaisha, swore a replying affidavit on 18th September 2025 on her own behalf and on behalf of the 1st respondent, her co-administrator in respect of the estate of the late Jemima Khavere Kaisha. She depones that the application is misconceived and founded on untrue allegations concerning the suit property. She states that the process of acquiring the property commenced on 27th February 1992, when the deceased, then serving as the Deputy Secretary to the Cabinet, wrote to the late President Daniel Toroitich arap Moi requesting allocation of a plot within Kakamega Municipality. 10. She further avers that the deceased identified the suit property as suitable for allocation, which request was subsequently approved by the then President. According to the respondents, although the property had been reserved for Government residential housing, the deceased lawfully qualified for its allocation by virtue of her position as a senior public officer. That she thereafter occupied the premises and paid rent to the Municipal Council until her demise, following which the administrators of her estate leased the property to tenants who continue to pay rent to the estate. 11. The respondents further contend that the applicant’s assertion that the premises are occupied by a public officer is unsupported, as no particulars of the alleged officer have been provided. They maintain that, pursuant to the letter dated 26th April 1994, the deceased was the lawful occupant of the property, and that following her demise, the administrators became the lawful registered proprietors. That consequently, any person occupying the premises without the administrators’ authority is a trespasser. The respondents further argue that the applicant has failed to produce any documentary evidence demonstrating that the title was acquired illegally. They add that the estate depends on rental income generated from the property for its livelihood and that restraining them from accessing or managing the property would occasion them substantial financial hardship. 12. The application was canvassed by way of written submissions. The court has considered the applicant’s submissions dated 19th October 2025 and the 1st and 2nd respondents’ submissions dated 10th February 2026, both of which are duly on record. The 3rd respondent elected not to participate in the application and did not file any pleadings or submissions in response thereto. **Analysis and determination** 1. The court has carefully considered the Notice of Motion, the affidavits filed in support thereof and in opposition thereto, together with the parties’ respective submissions. The sole issue for determination is whether the applicant has satisfied the legal threshold for the grant of a temporary injunction pending the hearing and determination of the suit. 2. Order 40 Rule 1 of the Civil Procedure Rules vests this court with the jurisdiction and discretion to grant temporary injunctive relief where it is demonstrated that the property in dispute is in danger of being wasted, damaged, alienated, wrongfully sold in execution of a decree, or otherwise disposed of. The court may also grant such relief where it is shown that, unless restrained, the respondents’ actions are likely to obstruct or delay the execution of any decree that may ultimately be issued in favour of the applicant. 3. The law governing the grant of interlocutory injunctions is now settled. An applicant seeking such relief must satisfy the well-known principles set out in **Giella v Cassman Brown & Co. Ltd [1973] EA 358,** which have since been reaffirmed and elaborated upon by the superior courts. An applicant must establish a prima facie case with a probability of success, demonstrate that they stand to suffer irreparable injury which cannot adequately be compensated by an award of damages if the injunction is withheld, and where the court is in doubt, the application is to be determined on a balance of convenience. 4. The meaning of a *prima facie* case was authoritatively considered by the Court of Appeal in **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125,** where the Court stated: **“*A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to 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.”*** 1. The Court of Appeal further expounded on the principles governing interlocutory injunctions in **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR,** where it held that the three conditions set out in **Giella v Cassman Brown & Co. Ltd [1973] EA 358** are distinct, sequential and mandatory hurdles. The Court stated: ***“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…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 are 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. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise.”*** 1. In the instant case, the applicant’s argument is that the suit property is Government land reserved for the State Department of Housing and urban development for purposes of construction of residential Government housing to be utilized by civil servants. It maintained that the Government constructed a house on he suit property marked as KAKA/HOU/MG/72 completed in 1970. According to the applicant, the suit property was not available for allocation and that therefore the allocation to the late Jemimah Khavere was unlawful. It maintained that it was apprehensive that the suit property may be disposed before the determination of the suit. 2. On their part, the respondents confirmed in their replying affidavit that indeed the suit propery had been reserved for residential for Government housing but maintained that the deceased who was a Deputy Secretary to the Cabinet applied to the former President His Excellency the late Daniel Arap Moi and when asked to find a plot for allocation, she identified the suit property whereof the same was allocated to her. Both parties presented evidence of ownership. 3. This being the position, and both parties having confirmed that before allotment to the deceased, the suit property belonged to the Government and had been reserved for civil servants’residential housing, therefore, the central issue to this dispute is whether the acquisition of title by the deceased was lawful. To that extent, I am persuaded that the applicant has established a prima facie case with chances of success. 4. On whether there is demonstraion of irreparable injury, it is clear that the respondens hold a lease to the title and the possibility of disposal is apparent. Regarding the balance of convenience, the Government having demonstrated having been in ownership and possession, he balance of convenience tilts in favour of granting the injunction. 5. In the premises, I am saisfied that the application dated 20th May 2025 is merited and the same is hereby allowed as follows; 6. **That an order of temporary injunction is hereby issued restraining the 1st and 2nd Defendants/ Respondents by themselves, their agents, servants and/or assigns from alienating, selling, charging or further charging, leasing, developing, sub-dividing, transferring, wasting, disposing or in any other manner dealing with land parcel Kakamega Municipality Block III/218( the suit property) pending the hearing and determination of this suit.** 7. **That the costs of this application shall be borne by the 1st and 2nd respondents.** 8. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 29TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Mr. Ombeo holding brief for Mr. Kibet for the Plaintiff/applicant Mr. Thuo for the 1st and 2nd defendants/ respondents No appearance for the 3rd defendant/respondent. Court Assistant: Delphine