Gacheru & 2 others v Kinuthia & another (Land Case E014 of 2026) [2026] KEELC 4319 (KLR) (9 July 2026) (Ruling)

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLC/E014/2026 JANE WANGARI GACHERU AND JUDY WAMBUI NYAMBURA AND 1 OTHERS VS SHEILA WANJIKU KINUTHIA AND KENYA COMMERCIAL BANK LTD RULING This ruling is in respect of the Plaintiff/Applicants Notice of Motion application dated 16th December, 2025 which seeks the following orders: 1. Spent 2. THAT pending the hearing and determination of this application, and the main suit, an order of inhibition do issue inhibiting any dealings with FLATs B7, B8, B9, B10, B11, B12, B13, B14 and B15 erected on LR (MSA) No. Mainland, North Section 1/21799 Original No 973/202 situate in Mombasa County and LR Muguga/Gitaru/1112 situate in Kiambu County. 3. THAT pending the hearing and determination of this application, and the main suit, an order of injunction do issue prohibiting the defendants/applicants acting by herself, her agents or anyone claiming through her from wasting, damaging, or alienating or in any way dealing with FLATs B7, B8, B9, B10, B11, B12, B13, B14 and B15 erected on LR (MSA) No. Mainland, North Section 1/21799 Original No 973/202 situate in Mombasa County and LR Muguga/Gitaru/1112 in a manner inconsistent with the beneficial interests claimed by the plaintiffs over the properties. 4. THAT pending the hearing and determination of this application and the main suit, an order of injunction do issue prohibiting the 2nd Defendant/Respondent from exercising a statutory power of sale or indeed any of the statutory powers of a chargee over LR Muguga/Gitaru/1112 consequential on a charge created on the same to secure a facility in favour of the 1st Defendant. 1. Pending the hearing and determination of this application and of this suit, an order of injunction do issue restraining the respondent by herself, or persons claiming through her from interfering with the management of B7, B8, B9, B10, B11, B12, B13, B14 and B15 erected on LR (MSA) No. Mainland, North Section 1/21799 Original No 973/202 by the 1st and 2nd Plaintiffs as administrators of the estate of LEORNARD KIBINGE KIRURI. 2. THAT suitable orders intended to serve the interests of justice be made. The application is supported by the annexed affidavit of Jane Wangari Gacheru, the 1st Plaintiff sworn on 16th December, 2025. The 1st Plaintiff deponed that together with the 2nd Plaintiff, they were wives of the deceased, Leonard Kibinge Kiruri. She deponed that the 1st Defendant and the deceased were married under the Marriage Act. She deponed that the 1st Defendant was charged with the murder of the deceased in Original NRB HC CR C No 31 of 2014 and duly convicted. The 1st Plaintiff deponed that the 2nd Defendant appealed against her conviction in CACA CR APPEAL No 71 A of 2017 which was allowed and the conviction quashed and sentence set aside. The 1st Plaintiff deponed that the suit properties are presently the subject of NRB Succession Cause No 626 of 2022. She deponed that FLATs B7, B8, B9, B10, B11, B12, B13, B14 and B15 erected on LR (MSA) No. Mainland, North Section 1/21799 Original No 973/202 were acquired during the subsistence of marriage between the deceased and the 2nd Plaintiff and herself and the same were incapable of being registered in the joint names of the deceased and the defendant to the exclusion of the 2nd Plaintiffs and herself without their consent. The 1st Plaintiff deponed that the registration was void for lack of spousal consent as required by Section 93 of the Land Registration Act and Section 12 of the Matrimonial Property Act. The 1st Plaintiff deponed that the deceased was also the proprietor of the parcel of land known as Muguga/Gitaru/1112. She deponed that following a grant of letters of administration intestate to the estate of the deceased, the 1st Defendant transferred LR No Muguga/Gitaru/1112 to her name and took a loan from the 2nd Defendant using the said property as collateral. She deponed that the 2nd Defendant is a charger of LR No Muguga/Gitaru/1112. It was her deposition that the said charge is void for lack of spousal consent. She asked the court to grant the orders sought. Sheila Wanjiku Kinuthia, the 1st Defendant, filed a Replying Affidavit sworn on 18th March, 2026. The 1st Defendant deponed that there are no conservatory orders in HC SUCC 626 of 2015 and the court will be proceeding to distribute that parcel of land Muguga/Gitaru/1111 as it is the only known free property of the deceased. It was her deposition that the Plaintiffs are in full control of and possession of and are collecting the rental income of those properties that FLATs B7, B8, B9, B10, B11, B12, B13, B14 and B15 erected on LR (MSA) No. Mainland, North Section 1/217999 after they were appointed administrators on 12th November 2018 whilst the Court of Appeal matter No 71 A of 2017 was still ongoing and which matter exonerated the 1st Defendant on 24th May, 2019. She deponed that the danger that the estate is currently facing is lack of accounts of the rental income for the past ten years. It was the 1st Defendant’s deposition that the Plaintiffs are not recognized as wives of the deceased in law and their claims over the property are unfounded and lack any legal basis. It was her deposition that she in support that the court should issue an injunction prohibiting either party from dealing, wasting, alienating the FLATs B7, B8, B9, B10, B11, B12, B13, B14 and B15 erected on LR (MSA) No. Mainland, North Section 1/21799 and therefore the rental income be deposited either with the court or in a joint account of the two advocates in the matter. The 1st Defendant deponed that the Plaintiffs application is an abuse of court process and the same ought to be dismissed with costs. The 2nd Defendant filed Grounds of Opposition dated 23rd March, 2026. It stated that no wrong doing or breach of applicable laws and regulations has been demonstrated as against the 2nd Defendant and there would be no basis for the issue of an order of injunction as against it from exercising its statutory power of sale. The 2nd Defendant stated that the death of a charger does not defeat the security of the bank over any of his properties. It stated that the application has no merit and is an abuse of court process. Jane Wangari Gacheru, the 1st Plaintiff, filed a Supplementary Affidavit sworn on 24th March, 2026. She deponed that Muguga/Gitaru/1111 is not part of these proceedings. She deponed that the deceased estate is in no danger with regards to rental income as the estate account is domiciled at Diamond Trust Bank Ltd, Westgate branch Nairobi as ordered by the succession court. She deponed that together with the 2nd Plaintiff, they are wives of the deceased. She deponed that the 1st Defendant cannot claim not to be able to service the loan she took with the title MUGUGA/GITARU/1112 as she has never accounted for the loan proceeds and also Ksh 5,633,641.25 she received from Group Mortgage Life Insurance of the deceased. It was the 1st Plaintiff’s deposition that the 1st Defendant has also not accounted for the rent she collected from the Mombasa properties from the time the deceased met his death in April 2014 up to October 2018. PLAINTIFF/APPLICANTS SUBMISSIONS Counsel for the Plaintiff/Applicants filed submissions dated 24th March, 2026 and identified the following issues for determination: 1. Whether the orders sought in the application are valid and of necessity? 2. Whether status quo should be maintained? On the first issue, counsel submitted that Plaintiff/Applicants have demonstrated the urgency of issuing/granting the temporary injunction orders pending hearing of the suit. Counsel submitted that there is a need for conservation of the deceased’s estate and prevent waste at all costs. Counsel relied on the case of Siteyia vs Gitome & 3 others [2015] eKLR. On the second issue, counsel submitted that issuance of status quo orders would prevent wastage of the estate. Counsel submitted that the administrators are acting as trustees of the estate of the deceased and they are managing the property well. Counsel asked the court to allow the application as prayed. 2ND DEFENDANT’S SUBMISSIONS Counsel for the 2nd Defendant filed submissions dated 25th March, 2026. Counsel submitted that the property Muguga/Gitaru/1112 was offered as security to the 2nd Defendant wherein a loan of Ksh 5,000,000/= was advanced to the 1st Defendant upon execution of the letter of offer and charge. Counsel submitted that the said security was admitted by the bank upon conducing due diligence at the lands office that established the applicant as the sole owner of the said property. Counsel relied on the case of National Bank of Kenya Limited vs Pipeplastic Samkolit & Another [2001] KLR. Counsel submitted that the Plaintiff/Applicants have not satisfied the elements of granting a temporary injunction. Counsel relied on the following cases: Giella vs Cassman Brown & Co. Ltd [1973] EA 358 and Vivo Energy Kenya Limited vs Maloba Petrol Station Limited & 3 others [2015] eKLR. Counsel prayed that the Plaintiff’s application dated 16th December, 2025 be dismissed with costs. ANALYSIS AND DETERMINATION The issue for determination is whether the Plaintiff/Applicants are entitled to the injunctive orders sought in the Notice of Motion application dated 16th December, 2025. The suit was initially filed at the Environment and Land Court in Nairobi and Hon. Justice Mohamed N. Kullow issued the following directions on 22nd December, 2025: “THAT the suit properties are all situated outside the jurisdiction of this court and I direct that the file be placed at the Mombasa ELC for further directions.” This court has looked at the pleadings and specifically the orders sought by the Applicant’s in the application herein and the Plaint dated 10th November, 2025. The court notes that the suit properties are located in Mombasa and Kiambu counties. FLATs B7, B8, B9, B10, B11, B12, B13, B14 and B15 erected on LR (MSA) No. Mainland, North Section 1/21799 Original No 973/202 are situated in Mombasa County while LR Muguga/Gitaru/1112 is situated in Kiambu County. The Plaintiffs in the Plaint dated 10th November, 2015 contend that the suit properties are situated in Kiambu, Nairobi and Mombasa and the parties live and work in Nairobi and Kiambu. Considering, the parties have already submitted to the jurisdiction of this court, I will determine the matter. In the case of Rockland Kenya Limited v Elliot White Miller [1994] eKLR, the court held as follows: “The object of an interlocutory injunction is to protect the Plaintiff against injury by violation of his legal right for which he could not be adequately compensated in damages recoverable in the action if the matters in dispute were resolved in his favour at the trial. However, his need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal right for which he could not be adequately compensated under the Plaintiff’s undertaking in damages if the subject-matter of the trial was decided in his favour. It is a remedy that is both temporary and discretionary. In cases where the legal rights of the parties depend on facts that are in dispute between them, the evidence available to the Court at the hearing of the application for an interlocutory injunction is given on affidavit and is therefore incomplete as it has not been tested by oral cross- examination. At that stage therefore, it is not the function of the Court to attempt to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. Such matters are to be dealt with at the trial. Nonetheless, the Court must in the exercise of its discretionary power in this regard be satisfied that the claim in respect of which an interlocutory injunction is sought is neither frivolous nor vexatious: in other words, that there is a serious question to be tried.” Order 40 Rule 1 of the Civil Procedure Rules 2010 provides as follows: Where in any suit it is proved by affidavit or otherwise— 1. 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; or 2. 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. It is incumbent upon the Applicants to establish that they have a prima facie case with a probability of success and that they will suffer irreparable loss and damage if the injunction is not granted and lastly, in case the court is in doubt, the balance of convenience tilts in favour of granting the order of injunction. The Applicants contend that there is a need for conservation of the deceased’s estate and prevent waste at all costs. It is their contention that the matrimonial home of the deceased is situated on LR No Muguga/Gitaru 1112 and the father and mother of the deceased together with the family of the 1st Plaintiff live on the property. The purpose of a temporary injunction is to preserve the substratum of the case. I find that it would be in the interest of justice for both parties for an order of status quo to be issued to preserve the suit properties pending the hearing and determination of this suit. For avoidance of doubt, status quo orders are hereby issued as it is on the ground and the register at the lands office in respect of the suit property, pending the hearing and determination of this suit. Costs in the cause. Mention on the 1st of October 2026 at 9.00 am. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-07-09 21:16:14