https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5150

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCLC NO. E588 OF 2025** **STEPHEN KIBERE GATHIRU…..………...........….PLAINTIFF/APPLICANT** **-VERSUS-** **LYDIA WANJIRU...……..…………...........….…DEFENDANT/RESPONDENT** **RULING** 1. Before me is the notice of motion dated 20th November, 2025 filed by the plaintiff/applicant and it is expressed to be brought under **Order 51 Rule 1** of the **Civil Procedure Rules** and **Section 152A, 152B and 152E of the Land Act** seeking the following orders:- 2. ***That the respondent and/or her agent,nominee, assignee be evicted from land parcel no. Nairobi/Block 15/298 (formerly known as LR. no. 330/612) situated along Argwings Kodhek road within 7 days from the date of the ruling on this application.*** 3. ***That pending the hearing and determination of the main suit, a temporary injunction do issue restraining the respondent and/or her agent, nominee, assignee from entering, occupying, encroaching and/or trespassing onto Nairobi/Block/15/298 (formerly known as L.R No. 330/612) situate along Argwings Kodhek road in Nairobi.*** 4. ***That the costs and expenses incurred be borne by the respondent.*** 5. ***That OCS Kilimani Police Station do assist in enforcing the orders of the court.*** 6. ***Any other order that this honourable court may deem fit and just to grant.*** 7. The application is premised on the grounds on its face. It is further supported by the affidavit of the plaintiff/ applicant sworn on even date. The plaintiff/ applicant deposed that he is the registered owner of the land parcel Nairobi/Block/15/298 (formerly LR No. 330/612), located along Argwings Kodhek road in Nairobi. 8. He further deposed that his marriage with the defendant/respondent was dissolved in 2019 vide a ruling in the high court (Matrimonial Cause No. E003 of 2021). He added that the court explicitly declared that the suit property was not matrimonial property and belonged exclusively to him. The plaintiff/ applicant deposed that the defendant/respondent unlawfully entered the suit property and she is currently residing in one of the houses without any legal justification. He further deposed that the defendant/respondent’s actions of trespass has causedhim psychological torture, mental anguish and emotional distress. 9. The plaintiff/applicant further deposed that he had made several futile attempts to persuade the defendant/ respondent to voluntarily vacate the suit property including to pay for her alternative accommodation, an offer she rejected prompting his advocates to issue a seven-day eviction notice. He deposed that the suit property has since accumulated huge land rate arrears totaling to Kshs. 6,492,784/- and since he is unable to offset the same, the Nairobi county government is on the verge of auctioning the land so as to recover the funds. 10. He deposed that he had secured a tentative agreement with a real estate developer who was willing to clear the debt on condition that he hands over vacant possession of the property before the end of November 2025. Further, that the same was impossible since the defendant/respondent is currently in possession. 11. The defendant/respondent filed her replying affidavit sworn on 3rd December, 2025 where she deposed that the final division of their matrimonial property was still unresolved, and that the initial decision (Matrimonial Cause No. E003 of 2021) had been appealed at the Nyeri Court of Appeal under case number COACA E168 of 2025. She deposed that granting the plaintiff/applicant the orders could prejudice the appellate case and render the upcoming decision null, leaving her desolate. 12. The defendant/respondent denied being a trespasser on the suit property whose matrimonial status was still under appellate review. She added that she has resided on the property with their son since 2012, long before the Nyeri matrimonial cause was instituted. She deposed that she had contributed to the maintenance and improvement of the property's structures both before and after their divorce was confirmed. 13. She deposed that thecorrect arrears amount for the suit property was Kshs.1,585,224/-, and that the plaintiff/applicant deliberately stopped paying these rates as a malicious tactic to force her and their son off the property, where she had found solace after being driven out of their matrimonial home. She went on to depose that there were tenants on the suit property and that the plaintiff/applicant was the sole recipient of their rent, making him fully capable of clearing the rates. 14. The defendant/respondent deposed that together with their son, Abraham Kibere, with whom they live together have since pooled their limited resources to make payments toward the rates. She urged the court to instead maintain the *status quo* so that she is not left homeless while awaiting the appellate court's final determination. 15. In response thereto, the plaintiff/applicant filed his supplementary affidavit sworn on 23rd February, 2026. He deposed that the judgment in the matrimonial case in Nyeri already confirmed that the suit property was not matrimonial property. He denied any maintenance or improvements to the suit property by the defendants/respondent and further deposed that the pending appeal (Nyeri Court of Appeal Case No. COACA E168 of 2025) was a non-starter and fatally defective. He added that the appeal was filed out of time and without the court's leave and that there was no order of stay against the matrimonial court judgment. 16. The plaintiff/applicant deposed that the defendant/respondent has failed to provide evidence of payment of the rates, and her continued interference exposed the property to the imminent risk of being auctioned which would cause him substantial and irreparable loss. 17. The defendant/respondent also filed her supplementary affidavit sworn on 10th March, 20206. She deposed that the suit property was the subject of an ongoing dispute over the distribution of matrimonial property, and that being dissatisfied with the lower court's ruling on how their property was distributed she had appealed against the decision. The defendant/respondent deposed that she had been granted leave by the Court of Appeal in Nyeri to file her appeal out of time vide application COACAPPL NO. E045/2025. She also confirmed that her appeal COACA/E168/2025 was currently active and awaiting the court's directions. 18. The defendant/respondent deposed that it would be legally unfair and highly punitive to enforce a lower court decision that is actively being appealed, and that being evicted without consideration of these financial contributions would be arbitrary. She added that she was sickly and without any means of income and that the suit property was the only home she has known since being removed from her matrimonial home. 19. She deposed that she was willing to resolve the issues out of court since the dispute involved their adult children. 20. The application was canvassed through written submissions. The plaintiff/applicant filed his submissions dated 23rd February, 2026 while the defendant/respondent filed written submissions dated 10th April, 2026. I have considered the application, the replies thereof and the written submissions. The issue for determination is *whether the application has merit.* 21. The principles upon which the court should grant an injunction were set out in the case of **Giella V Cassman Brown & Company Ltd 1973 EA 358** as follows:- ***“First, the applicant must show that he has a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by damages. Thirdly, if the court is in doubt, it will decide the application on a balance of convenience.”*** 1. Further, in the case of **Mrao V First American Bank of Kenya Limited (2003) eKLR Bosire JA** (as he then was) stated as follows: ***“A prima facie case is one 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”*** 1. It is not in dispute that the plaintiff/ applicant is the registered owner of the suit property Nairobi/Block/15/298 (formerly LR No. 330/612). It is also not in dispute that the suit property was subject to a matrimonial case where the court held that it was not matrimonial property. Particularly and as I note, the defendant/respondent resides on the suit property which she says she has lived since being evicted from her matrimonial home. 2. In the case of **Nguruman Limited V Jan Bonde Nielsen & 2 Others [2014] eKLR**, the court of appeal stated as follows: - ***“...these are the three pillars on which rest 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 sufficient 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 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.”*** 1. The facts presented by both parties present a unique case where, I note that both parties were once husband and wife. While it may be easy to find that the plaintiff/applicant has established a prima case by virtue of ownership and the decision of the court which found that the suit property is not matrimonial property, it is also not lost on me that there is pending an appeal before the court of appeal. In such a case, the court is being called to exercise caution in determining whether the orders of temporary injunction should be granted. 2. I note that the plaintiff/applicant had indicated that he had proposed to give the defendant/respondent alternative accommodation. On the other hand, the defendant/respondent has expressed intention to have the matter settled out of court. In my view, I find it necessary for parties to find an amiable solution to these issues. An appropriate remedy would be for the parties to explore alternative dispute resolution. It would be in the interest of both parties that the suit property is preserved through status quo in terms of possession to give a chance to ADR in whichever form the parties would choose. 3. To enable efficient disposal of this matter, I will grant the parties 60 days to engage in out of court settlement in the hope that an amicable solution will be found. For clarity, the determination of the notice of motion dated 20th November, 2025 is held in abeyance pending out of court settlement. I make no orders as to costs. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 4TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **04/08/2026.** ***In the presence of:*** *Ms. Benson Agunga - Court assistant* *Mr. Kaifa holding brief for Mr. Kithinji for the Plaintiff/Applicant* *No appearance for the Defendant/Respondent*