https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4476

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCLC CASE NO. E016 OF 2026** **GEORGE MWAMNENO NYALE…………………………………….PLAINTIFF** **VERSUS** **CHEN KUN……………………………......…………………….1ST DEFENDANT** **DAVID THEURI…………………………..…………………….2ND DEFENDANT** **RULING** **Introduction** 1. This Ruling determines the Plaintiff's Notice of Motion dated 29th January 2026 and the 1st Defendant's Notice of Preliminary Objection dated 23rd February 2026. 2. In the Notice of Motion dated 29th January 2026, the Plaintiff seeks the following substantive orders: 3. ***A temporary injunction restraining the Defendants, whether by themselves, their agents, servants or otherwise, from selling, subdividing, charging, constructing upon, leasing, cultivating, quarrying or in any other manner interfering with or altering the status of L.R. No. 8856/4 I.R. No. 280581 pending the hearing and determination of the application.*** 4. ***A temporary injunction restraining the Defendants, whether by themselves, their agents, servants or otherwise, from selling, subdividing, charging, constructing upon, leasing, cultivating, quarrying or in any other manner interfering with or altering the status of*** ***L.R. No. 8856/4 I.R. No. 280581 pending the hearing and determination of the suit.*** 5. ***A mandatory injunction compelling the Defendants to remove the structures allegedly erected upon the suit property, vacate therefrom, restore the uprooted beacons and repair the damaged perimeter fence pending the hearing and determination of the suit.*** 6. The Application is supported by the Supporting Affidavit of George Mwamneno Nyale sworn on 29th January 2026, the Supplementary Affidavit sworn on 8th April 2026 and the Further Affidavit sworn on 12th June 2026. 7. The Plaintiff's case is that he is the registered proprietor of the suit property being L.R. No. 8856/4 I.R. No. 280581. He contends that the Defendants unlawfully entered the property, erected structures thereon, uprooted boundary beacons and damaged the perimeter fence. 8. The Plaintiff further asserts that the 1st Defendant is implicated in the acts in question, despite the 1st Defendant's denial of any interest in the suit property. To substantiate this assertion, the Plaintiff refers to a notice purportedly erected on the suit property displaying the Defendants’ phone numbers, as well as pleadings filed in **Machakos ELC Case No. E077 of 2026.** 9. The 1st Defendant opposes the application through a Replying Affidavit sworn on 23rd February 2026 by Chen Kun, as well as a Notice of Preliminary Objection dated the same day. The 1st Defendant asserts that he has no interest in the suit property. Additionally, he alleges that the Plaintiff has misrepresented the facts and argues that the application is misconceived, legally untenable, and amounts to an abuse of the court process. 10. In the Preliminary Objection, the 1st Defendant raises the following grounds: 11. ***The Plaintiff's application does not disclose any reasonable cause of action against the 1st Defendant which is in contravention to the provisions of Order 2 Rule 15 of the Civil Procedure Rules, 2010, which provides for striking out of pleadings that do not disclose a reasonable cause of action against the sued party.*** 12. ***The orders sought by the Plaintiff against the 1st Defendant lack legal basis and are unenforceable in the absence of proof of proprietary interest over the suit property by the 1st Defendant.*** 13. ***The Court lacks jurisdiction to grant any relief that would have the effect of promoting or giving legal sanction to an illegality.*** 14. The 2nd Defendant neither filed a response to the application nor participated in these proceedings. 15. The Court directed that the Notice of Motion and the Preliminary Objection be heard together by way of written submissions. Both the Plaintiff and the 1st Defendant duly filed their submissions. 16. In their written submissions, counsel elaborated on the parties' respective positions. The Plaintiff maintains that the material before the Court establishes a prima facie case warranting the grant of the relief sought. The 1st Defendant, on the other hand, contends that no factual or legal basis has been established for the grant of relief against him and urges the Court to uphold the Preliminary Objection and dismiss the Application. **Issues for Determination** 1. I have considered the Notice of Motion, the affidavits on record, the Notice of Preliminary Objection, the written submissions and the authorities cited by the parties. In my view, the following issues arise for determination: 2. Whether the Notice of Preliminary Objection dated 23rd February, 2026 raises pure points of law. 3. Whether the Applicant has satisfied the conditions for the grant of the reliefs sought. **Analysis and Determination** **Whether the Notice of Preliminary Objection raises pure points of law** 1. The law governing preliminary objections is settled. In ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,*** **Law JA** stated: ***"A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit."*** 1. In the same decision, **Newbold P** observed: ***"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."*** 1. A preliminary objection, in its proper sense, addresses a pure point of law. It must be based on uncontested facts or facts assumed to be correct, and should not involve disputed factual matters that require evidentiary proof. Where the determination of an objection depends on the ascertainment of contested facts, evaluating affidavit evidence or exercising judicial discretion, it ceases to be a true preliminary objection. 2. I have considered the 1st Defendant's Notice of Preliminary Objection. It raises three grounds. First, that the Plaintiff's application discloses no reasonable cause of action against the 1st Defendant. Secondly, the orders sought against the 1st Defendant lack a legal basis and are unenforceable in the absence of proof that he has a proprietary interest in the suit property. Thirdly, that this Court lacks jurisdiction to grant any relief that would have the effect of promoting or giving legal sanction to an illegality. 3. In my view, the first ground does not raise a pure point of law. The determination of whether the application discloses a cause of action against the 1st Defendant depends on the specific factual allegations made against him and the evidence presented by the Plaintiff to establish his connection to the acts in question. These issues remain contested and cannot be resolved without evaluation of the material on record. 4. The second ground also relies on contested facts. The 1st Defendant asserts that he holds no proprietary interest in the suit property, whereas the Plaintiff argues that he remains connected to the disputed development. Determining whether the 1st Defendant possesses a proprietary interest in the suit property requires examination of the evidence. 5. As regards the third ground, although jurisdiction is ordinarily a pure point of law, the objection as framed is not. The argument that granting the relief would sanction an illegality assumes either the lawfulness of the impugned construction or the lack of merit in the Plaintiff's allegations. These are disputed factual issues that necessitate evidentiary review and are not suitable for resolution at the preliminary stage. 6. For the foregoing reasons, I find that none of the grounds advanced in the Notice of Preliminary Objection raises a pure point of law. The determination of those grounds depends upon the resolution of disputed questions of fact and the evaluation of the affidavit evidence. They therefore do not constitute a true preliminary objection. The Notice of Preliminary Objection dated 23rd February 2026 is accordingly dismissed. **Whether the Applicant has satisfied the conditions for the grant of the reliefs sought.** 1. The law on grant of interlocutory injunctions is set out under **Order 40 Rule 1 (a) and (b)** of the Civil Procedure Rules 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 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.”*** 1. For an injunction to be issued, the court is guided by the trilogy in ***Giella v Cassman Brown & Co. Ltd [1973] EA 358:*** 2. ***First, the applicant must establish a prima facie case with a probability of success.*** 3. ***Second, the court must consider whether the applicant would suffer irreparable injury that cannot be adequately compensated by damages.*** 4. ***Third, if the court is in doubt, the matter is to be decided on a balance of convenience****.* 5. The position in ***Gilella v Cassman Brown* (*supra*)** was explained in the case of [***Nguruman Limited v Jan Bonde Nielsen & 2 Others***](https://kenyalaw.org/caselaw/cases/view/10428/)**CA No.77 of 2012 (2014) eKLR** where the Court of Appeal held that; ***“in an interlocutory injunction application the Applicant has to satisfy the triple requirements to (a) establishes his case only at a prima facie level (b) demonstrates irreparable injury if a temporary injunction is not granted and (c) allay any doubts as to b, by showing that the balance of convenience is in his favour.*** ***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 states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially.”*** 1. I now turn to consider whether the Applicant has satisfied the foregoing requirements. 2. The first question is whether the Applicant has established a *prima facie* case with a probability of success. The Applicant's claim is founded upon its registered proprietorship of the suit property. It alleges that the Respondents have entered upon the land without lawful authority, commenced construction thereon, interfered with the boundary beacons and damaged the perimeter fence. Those allegations are denied. The 1st Respondent maintains that he neither owns nor occupies the suit property and denies any involvement in the acts complained of. 3. It is not disputed that the Applicant is the registered proprietor of the suit property. The dispute is whether the Respondents have interfered with the Applicant's proprietary rights and whether they are responsible for the acts complained of. 4. The Applicant has also presented pleadings from **Machakos ELC Case No. E077 of 2026,** in which claims concerning the suit property or land alleged to overlap with it have been raised. While those proceedings are distinct from the current suit, they underscore the presence of issues that necessitate determination based on evidence. 5. In the circumstances, I am satisfied that the Applicant has placed before the Court material demonstrating an apparent interference with its proprietary rights over the suit property. Accordingly, I find that the Applicant has established a prima facie case with a probability of success. 6. The next question is whether the Applicant is likely to suffer irreparable injury if the relief sought is not granted. The Applicant alleges ongoing construction and interference with the suit property. As this dispute concerns interests in land, the Court must recognize the unique nature of land and the proprietary rights asserted by the parties. Should the alleged activities continue during the pendency of the suit, the character and condition of the suit property may be materially altered, rendering any ultimate relief less effective. In these circumstances, the Court is satisfied that the injury apprehended may not be adequately compensated by an award of damages and that the Applicant has established the second limb of the ***Giella*** test. 7. Even if there were doubt on the foregoing requirements, the balance of convenience would favour preserving the suit property pending the hearing and determination of the suit. The parties have placed before the Court competing versions of the material facts. The course least likely to occasion injustice is one that preserves the subject matter of the litigation until those issues are determined. 8. Having found that the Applicant has satisfied the conditions for the grant of temporary injunction, relief, the Court must now decide the appropriate form of relief in this case. **Order 40 Rule 1** authorizes the Court to grant a temporary injunction or to issue any other order deemed necessary to prevent the wasting, damage, alienation, sale, removal, or disposition of the disputed property. 9. In my view, the order that best serves that purpose is one preserving the *status quo* obtaining on the suit property pending the hearing and determination of the suit. Such an order safeguards the subject matter while leaving the parties' respective rights to be determined upon evidence at the trial. 10. That approach is consistent with the decision of the Court of Appeal in ***Mugah v Kunga* [1988] KLR 748,** as well as Practice **Direction 23(l) Practice** Directions to Standardise Practice and Procedures in The Environment and Land Court, 2025 contained in Gazette Notice No. 3461 of 2025, both of which recognise the importance of preserving the subject matter of litigation through appropriate preservatory orders where the circumstances of the case so require. 11. Accordingly, having considered the material placed before the Court and the applicable legal principles, I am satisfied that this is a proper case for the exercise of the Court's discretion under **Order 40 Rule 1** of the Civil Procedure Rules. The interests of justice will best be served by preserving the status quo obtaining on the suit property pending the hearing and determination of the suit. 12. I now turn to the Applicant's prayer for an interlocutory mandatory injunction. Unlike a prohibitory injunction, a mandatory injunction compels the performance of a positive act before the dispute has been finally determined. It is, by its nature, a more intrusive remedy and therefore attracts a substantially higher threshold. 13. The distinction between the two remedies has been consistently recognised by the courts. In [***Maher Unissa Karim v Edward Oluoch Odumbe***](https://kenyalaw.org/akn/ke/judgment/kehc/2015/4029)(2015) eKLR the court stated that:- *“****The test for granting a mandatory injunction is different from that enunciated in the Giella v Casman Brown case which is the locus classicus case for prohibitory injunctions. The threshold in mandatory injunctions is higher than in the case of prohibitory injunctions…”*** 1. The governing principles are well settled. An interlocutory mandatory injunction will only issue in exceptional circumstances where the case is clear and the Court possesses a high degree of assurance that, upon trial, it will appear that the order was rightly granted. In ***Kenya Breweries Limited & Another v Washington O. Okeyo [2002] eKLR*** the Court of Appeal stated:- *“****a mandatory injunction can be granted on an interlocutory application as well as at the hearing but should not normally be granted in the absence of special circumstances but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application.”*** 1. I must therefore assess whether the present dispute falls within the narrow class of cases in which the exceptional jurisdiction to grant an interlocutory mandatory injunction ought to be exercised. 2. In my view, it does not. The identity of the persons alleged to have erected the notice, constructed the temporary structure, interfered with the boundary beacons and damaged the perimeter fence remains disputed. Equally contested is whether those acts, if established, are attributable to the Respondents and whether they are connected to the competing claim asserted in ELC No. E077 of 2026. Those disputed issues are central to the controversy before the Court. Their resolution will necessarily depend on the evaluation of oral testimony, documentary evidence and, where appropriate, expert evidence regarding the alleged overlap of the two parcels. 3. The Court is equally mindful that the mandatory orders sought would require the Respondents to remove the alleged structures, vacate the suit property, restore the boundary beacons and repair the perimeter fence. These actions constitute the substantive relief requested by the Applicant in **prayer 2** of the Plaint dated 29th January, 2026. Except in the clearest cases, an interlocutory mandatory injunction should not be used to grant substantially the same relief that may ultimately be awarded after a full trial. Granting such relief while material facts remain genuinely contested risks prejudging issues that are properly reserved for determination at the hearing of the suit. 4. Accordingly, the court is not persuaded that special circumstances exist in this matter to justify the grant of a mandatory injunction, nor that the case is sufficiently clear to warrant immediate determination. Consequently, the Applicant has not established an adequate basis for the grant of an interlocutory mandatory injunction. The prayer for mandatory injunction is therefore declined. 5. Based on the foregoing, the court makes the following orders: 6. ***The Notice of Preliminary Objection dated 23/02/2026 is dismissed.*** 7. ***Pending the hearing and determination of the suit, the parties shall maintain the prevailing status quo in respect of L.R. No. 8856/4 I.R. No. 280581.*** 8. ***For the avoidance of doubt, the parties shall not undertake any further construction on the suit property, interfere with the existing boundary beacons, or sell, transfer, charge or otherwise alienate the suit property pending the hearing and determination of this suit.*** 9. ***Costs of the Notice of Motion shall abide the outcome of the suit.*** It is so ordered. **Delivered and Dated at Machakos this 16th day of July, 2026.** **HON. J. N. KUYIONI** **JUDGE** **16.07.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Catherine Court Assistant. Mr. Gichuki holding brief for Kiarie for 1st Defendant. Mr. Koyokko for the Plaintiff.