https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4515

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC NO. E197 OF 2024** **DAVID GATHIGE GITAU……………………………………….…….PLAINTIFF** **VERSUS** **MARGARET GATHONI MUIRURI……………………………1ST DEFENDANT** **JEREMIAH KOBIA M’MUNORU…………………….……...2ND DEFENDANT** **BETH WANJIRU WAHIGI…………………………….………3RD DEFENDANT** **SCHOLA WANGUI MUCHIRI……………………….……….4TH DEFENDANT** **SIMON MUTHARA NGIGI…………………………….……..5TH DEFENDANT** **LOISE WANJIKU GAKINYA……………………..……………6TH DEFENDANT** **NANCY WAKINI WACHIRA………………………………….7TH DEFENDANT** **GILBERT KARIUKI WACHIRA………………………………..8TH DEFENDANT** **THE ATTORNEY GENERAL (sued on behalf of** **THE LAND REGISTRAR, RUIRU SUB-COUNTY……………9TH DEFENDANT** **RULING** 1. This Ruling is in respect of the Notice of Motion Application dated 31/10/2025 and brought under Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act, Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules seeking the following: 2. ***Spent.*** 3. ***That this Honorable Court be pleased to issue an order of restriction/inhibition to be registered against all subplots to wit RUIRU KIU BLOCK 2(GITHUNGURI) 27967-27976 emanating from RUIRU KIU BLOCK 2 (GITHUNGURI)2991 pending the hearing and determination of this suit.*** 4. ***That this Honorable Court be pleased to make any further or other orders it may deem just and expedient in the circumstances of this case.*** 5. ***That costs of this application be in the cause.*** 6. The Application is based on the grounds on the face of it and supported by the Affidavit sworn by David Gathige Gitau on 31/10/2025. 7. In the Affidavit David Gathige Gitau deposes that he swears the Affidavit in his capacity as the Plaintiff and the duly authorized Personal and Legal Representative of the Estate of Wambui Muoria Ithiri (Deceased), having been granted Limited Grant of Letters of Administration Ad Litem in **SPM Ruiru Succession Cause No. E049 of 2024**. 8. The substratum of the Plaintiff's claim, as averred in the Affidavit is that the cause of action arose in November 2024 when the Deponent discovered that unknown individuals were frequently trespassing onto the suit property. Upon inquiry, these individuals purported to have purchased the suit land from the 2nd Defendant, Jeremiah Kobia M'Munoru. That the 2nd Defendant is allegedly asserting ownership over the property by relying on title deed documents that the Deponent strongly contends are illegal, null, and fraudulently acquired. 9. The Deponent further states that the underlying suit is ongoing and was scheduled for a mention on the 4/12/2025. As deponed further, prior to the institution of these proceedings, a formal restriction was duly registered against the main parcel of land, namely **RUIRU KIU BLOCK 2(GITHUNGURI)2991**, as well as its subsequent subdivisions, specifically **RUIRU KIU BLOCK 2(GITHUNGURI) 27967–27976**. This statutory caution was lodged intentionally to preserve the substratum of the suit property pending the final hearing and determination of the matter, as evidenced by copies of the official land register Green Cards annexed to the Affidavit and marked as **"DGG 1"**. 10. The Deponent further avers that he recently discovered fresh acts of trespass and encroachment on the suit property, where unknown third parties have constructed a temporary semi-*mabati* structure while the main suit remains pending determination before the Honourable Court, a fact corroborated by a photograph annexed as **"DGG 2"**. 11. Another critical grievance raised by the Deponent concerns the conduct of the 6th Defendant. It is averred that the 6th Defendant, acting surreptitiously and without disclosure to either the Honourable Court, the Deponent, or the cautioner the Company, Githunguri Constituency Ranching filed **Miscellaneous Application E017 of 2025** before the Ruiru Law Courts seeking the removal of the aforementioned restriction. The Deponent contends that this miscellaneous application was irregularly allowed and the restriction subsequently vacated. Following the removal of the caution, the 6th Defendant immediately proceeded to transfer her specific subplot, **RUIRU KIU BLOCK 2(GITHUNGURI) 27971**, to a third party on the 25/04/2025, a transaction documented in the Green Card annexed as **"DGG 3"**. 12. The Deponent strongly deposes that these calculated actions by the 6th Defendant are deliberately intended to defeat the ends of justice, subvert the pending judicial proceedings, and unlawfully dispossess the Estate of its rightful interest in the suit land. Consequently, the Deponent moves the Honourable Court on the ground that there exists an imminent danger that the remaining Defendants may employ similar machinations to remove the restrictions and fraudulently transfer or dispose of their respective subplots. The Deponent avers that unless the Court intervenes, such actions will inevitably render the main suit nugatory, presenting the Plaintiff with a *fait accompli* and occasioning irreparable loss, damage, and extreme prejudice. 13. In concluding his depositions, the Deponent, David Gathige Gitau, moves the Honourable Court on the grounds that it is just, fair, and equitable for a restriction or inhibition order to be issued. This statutory order is urgently sought to restrain the Defendants from engaging in any further dealings, alienations, or transactions concerning the suit property pending the full hearing and final determination of this suit. 14. Only the 5th Defendant/Respondent opposed the Application by filing a Preliminary Objection dated 6/08/2025. Other Defendants and Respondents did not file any response. 15. The gravamen of the 5th Defendant's Preliminary Objection dated 6/05/2025 rests purely on a point of law, specifically challenging the competency of this Honourable Court to adjudicate upon the matter. The 5th Defendant contends that this Honourable Court fundamentally lacks the requisite jurisdiction to entertain, hear, and determine the instant claim as currently couched. This legal contestation is anchored on the strict constitutional and statutory dictates of Articles 165(5), (6), and (7), as well as Article 169(1)(a) and (2) of the Constitution of Kenya, when read conjunctively with Section 7 of the Magistrates' Courts Act. The 5th Defendant posits that the subject matter or pecuniary value of the claim falls within the statutory mandate of the subordinate Courts, thereby divesting this superior Court of original jurisdiction. 16. On account of the lack of jurisdictional competence which is a threshold issue and the lifeblood of any judicial proceeding the 5th Defendant prays that the Plaint dated 14/11/2024be struck out in its entirety with costs being awarded to the 5th Defendant. 17. In response to the Preliminary Objection through the Replying Affidavit of their Counsel, **Crispus Kanyi Kiruchi** sworn on 24/03/2026, opposes the application and prays for its dismissal with costs. The Plaintiff deposes that the Preliminary Objection lacks legal merit and fails to satisfy the established threshold for such an application as it does not raise a pure point of law. Counsel asserts that the instant Court is fully seized of jurisdiction to entertain the suit, noting that allegations to the contrary are legally unsound. 18. Regarding the specific issue of pecuniary and subject-matter jurisdiction, the Plaintiff contends that the dispute revolves around the land parcel known as RUIRU KIU BLOCK 2 (GITHUNGURI) 2991, which measures approximately 11.5 acres. The Plaintiff posits that by virtue of the size and nature of the subject matter, the dispute falls squarely within the jurisdiction of this Honorable Court and is well beyond the statutory limits of the Ruiru Law Courts. 19. Furthermore, the Plaintiff avers that the Preliminary Objection, as framed, is vague, ambiguous, and incapable of sustaining a coherent legal argument. It is the Plaintiff's position that the 5th Defendant has failed to clear the legal hurdles necessary to impeach the Court’s jurisdiction, as the issues raised cannot be discerned from a plain reading of the pleadings without necessitating the ascertainment of facts. The Plaintiff emphasizes that a proper Preliminary Objection must arise from the undenied implications of the pleadings and cannot rely on matters that require proof through evidence or further deposition. 20. Finally, the Plaintiff laments that the application constitutes a somatic abuse of the Court process and an unwarranted expenditure of precious judicial time. Counsel notes that despite writing a formal letter, annexed as **"CKK 1"** to the 5th Respondent's Counsel seeking clarification on the import of the objection, no response was forthcoming. Consequently, the Plaintiff invites this Honorable Court to find that the application is bad in law, incompetent, and fit for summary dismissal with costs to the Plaintiff. 21. Both the Application and the Preliminary Objection was canvassed by way of written submissions. I however note that only the Plaintiff filed their written submissions dated 26/05/2026 in support of the Notice of Motion Application dated 31/10/2025 and in opposition to the Preliminary Objection dated 6/08/2025. 22. In brief, the written submissions of the Plaintiff regarding the Preliminary Objection, the Plaintiff contends that the 5th Defendant’s challenge to this Court’s jurisdiction predicated upon Articles 165 and 169 of the Constitution alongside Section 7 of the Magistrates’ Court Act is entirely unmerited and legally unsound. The Plaintiff asserts that the suit involves an extensive land claim over RUIRU/RUIRU KIU BLOCK 2 (GITHUNGURI) 2991 measuring approximately 11.5 acres, which has since been subdivided into ten smaller portions including parcels 27969 and 27970 claimed by the 5th Defendant. 23. Relying on the locus classicus case of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,** the Plaintiff submits that a proper Preliminary Objection must consist of a pure point of law arising by clear implication out of the pleadings and cannot be sustained where the Court is forced to ascertain or investigate facts. The Plaintiff posits that if the 5th Defendant’s intention was to argue that the subordinate Court at Ruiru has primary jurisdiction over the matter, such an argument does not oust the concurrent statutory and constitutional jurisdiction of this Environment and Land Court over titles, use, and occupation of land as explicitly anchored under Article 162 of the Constitution, meaning the objection must fail with costs. 24. Turning to the Plaintiff's Notice of Motion Application dated 31/10/2025, the Plaintiff highlights that save for the 5th Defendant's incompetent preliminary challenge, the application for conservatory orders remains wholly unchallenged and unopposed by any of the other parties. Submitting on the legal threshold for the grant of interlocutory relief, the Plaintiff argues that a compelling *prima facie* case with a high probability of success has been established, tracing the deceased’s root of ownership back to Githunguri Constituency Ranching Co. Ltd via Ballot No. 1947 and Share Certificate No. 1578 dated 15/12/1988. The Plaintiff argues that the Defendants subsequently obtained illegal registrations over the subdivided parcels and have begun disposing of the land to unsuspecting third parties, which necessitates the urgent preservation of the suit property. 25. In reinforcing this standard, the Plaintiff invokes the foundational principles set out in **Giella v Cassman Brown [1973] EA 358**, the clear definitional boundaries of an arguable case elaborated in **MRAO Ltd v First American Bank of Kenya Ltd (2003) eKLR,** and the recent jurisprudential affirmation in **Green and Another v Mangi [2023] KEELC 17223 (KLR),** where the Courts reiterated that the evidence presented must robustly demonstrate an apparent infringement of a right. 26. The Plaintiff concludes by urging this Court to distinguish the unique and superior nature of constitutional conservatory orders from ordinary civil law injunctions, inviting the Court to adopt the reasoning of Odunga J. (as he then was) in **Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR**. That decision confirms that conservatory orders operate as remedies *in rem* meant to preserve a particular state of affairs and keep the subject matter of the dispute *in situ* rather than merely binding an individual *in personam*. The Plaintiff avers that the balance of convenience heavily favors the preservation of the land to prevent its further alienation pending the final hearing and determination of the suit. Consequently, the Plaintiff prays for the summary dismissal of the 5th Defendant's Preliminary Objection and the immediate allowing of the Application dated 31/10/ 2025, with costs of both tranches of litigation being awarded to the Plaintiff as the successful party in line with standard judicial practice. **Analysis and Determination** 1. I have analysed the application, Preliminary Objection, Affidavits filed and the written submissions of the Plaintiff and come to the conclusion that the following are the issues I should consider in determining the two-pronged applications before me: 2. *Whether this Court possess jurisdiction to hear and determine a dispute concerning title, use, occupation, and alleged fraudulent dealings in respect of land parcel RUIRU KIU BLOCK 2 (GITHUNGURI) 2991 measuring approximately 11.5 acres and its ten resultant subdivisions?* 3. *The first issue in turn raises the anterior question of whether the challenge as raised constitutes a proper Preliminary Objection in law within the meaning of the established jurisprudence on that subject.* 4. On its part, the substantive application presents the following key issues for determination: 5. *Whether the Plaintiff has established a prima facie case with a probability of success so as to warrant the grant of conservatory and/or interlocutory relief in the nature of an order of restriction or inhibition over the suit properties.* 6. *Whether the Plaintiff stands to suffer irreparable injury that cannot be adequately compensated by an award of damages should the orders not be granted.* 7. *Whether the balance of convenience favours the grant or refusal of the orders sought.* 8. *Whether the conduct of the 6th Defendant in secretly filing Miscellaneous Application E017 of 2025 at the Ruiru Law Courts, obtaining the vacation of the existing statutory restriction, and thereafter promptly effecting a transfer of RUIRU KIU BLOCK 2 (GITHUNGURI) 27971 to a third party on 25/04/2025, warrants this Court's intervention to forestall similar disposals of the remaining subplots by the other Defendants, so as to prevent the main suit from being rendered nugatory.* 9. It is settled law traceable to the locus classicus decision of the predecessor Court of Appeal of East Africa in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,** that a Preliminary Objection must consist of a pure point of law which has been pleaded or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. In that celebrated decision, Sir Charles Newbold, P. stated in terms that bear full repetition: ***"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. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues."*** 1. Law, JA., concurring in the same decision, further amplified the standard when he observed: ***"So far as I am aware, 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. Examples are an objection to the jurisdiction of the Court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."*** 1. It is from these twin pronouncements that the rules governing Preliminary Objections in Kenya derive their genealogy. Courts have consistently held that a Preliminary Objection cannot be raised where facts remain to be ascertained, or where the Court is called upon to exercise its judicial discretion. 2. It must be granted to the 5th Defendant that a jurisdictional objection is, in principle, one of the recognised categories of a pure point of law that may properly be raised by way of Preliminary Objection. Jurisdiction is indeed the threshold issue and the very lifeblood of every judicial proceeding. In **Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR**, the Supreme Court of Kenya stated: ***"A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law."*** 1. The principle that jurisdiction is a foundational prerequisite is therefore beyond controversy. The real question, however, is whether the 5th Defendant's challenge to this Court's jurisdiction is well-founded in law or is entirely misconceived. 2. The Environment and Land Court is a superior Court of record established by and deriving its jurisdiction directly from Article 162(2)(b) of the Constitution of Kenya, 2010, which mandates Parliament to establish Courts with the status of the High Court *"to hear and determine disputes relating to the environment and the use and occupation of, and title to land."* 3. Parliament gave effect to this constitutional mandate by enacting the Environment and Land Court Act, No. 19 of 2011. The preamble to that Act describes the Court as a superior Court established *"to hear and determine disputes relating to the environment and the use and occupation of, and the titles to, land and to make provision for its jurisdiction functions and powers and for connected purposes."* Section 13(1) of the Act is unambiguous. It provides: ***"The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land."*** 1. Section 13(2)(a) of the Act further specifies that the Court's jurisdiction extends to disputes *"relating to environmental planning and protection, climate issues, land use, planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources."* 2. The 5th Defendant's contention that Articles 165(5), 165(6), and 169 of the Constitution together with Section 7 of the Magistrates' Courts Act deprive this Court of jurisdiction fundamentally misapprehends the constitutional architecture. Article 165(5) of the Constitution restricts the High Court from entertaining matters that are reserved for the subordinate Courts under that Article or for other Courts or Tribunals established by the Constitution. 3. Critically, however, land disputes are not reserved for subordinate Courts; they are, by the explicit command of Article 162(2)(b), reserved for this Environment and Land Court. This Court is not the High Court; it is a distinct superior Court of co-equal status established under Article 162(2)(b). The provisions of Article 165(5), which speak to the High Court's jurisdictional limits, have no bearing on or application to the Environment and Land Court. 4. This Court addressed the very same structural question in **Francis Mbugua Kimani v. Attorney General & 3 Others [2022] eKLR (originating as Murang'a ELC Constitutional Petition No. 15 of 2020)** where it was observed that the ELC and the High Court are *"different and autonomous Courts exercising different and distinct jurisdictions,"* and that the constitutional bar that prevents the High Court from entertaining matters reserved for the ELC cannot, by parity of reasoning, be inverted to prevent the ELC from exercising the jurisdiction conferred upon it by the same Constitution. 5. The argument founded on Article 169 and Section 7 of the Magistrates' Courts Act must also fail for the same reason. While Magistrates' Courts may have jurisdiction over civil land disputes where the value of the subject matter does not exceed the pecuniary limits set by the Magistrates' Courts Act, that concurrent jurisdiction of the Subordinate Courts in matters of lesser value does not strip the Environment and Land Court of its original and unlimited jurisdiction in land matters. The two jurisdictions may overlap in the lower end of the spectrum but the ELC's jurisdiction is never ousted by the existence of a concurrent Subordinate Court jurisdiction. 6. In the instant matter, the dispute centres on land parcel RUIRU KIU BLOCK 2 (GITHUNGURI) 2991, measuring approximately 11.5 acres, and its ten resultant subdivisions. This is a dispute relating squarely to title, use, occupation, alleged fraudulent registration, and trespass to land matters that fall precisely and without question within the original jurisdiction of this Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 7. There is an additional infirmity in the Preliminary Objection as framed. The 5th Defendant's challenge to jurisdiction is premised, at least in part, on the assertion that the pecuniary value of the claim falls within the statutory mandate of the Subordinate Courts. A determination of the pecuniary value of land its valuation for jurisdictional purposes is inescapably a matter of fact, not a matter of law. It cannot be resolved by a mere reading of the pleadings; it requires evidence. This consideration alone renders the Preliminary Objection defective under the **Mukisa Biscuit** (**supra**) test, which expressly provides that a Preliminary Objection *"cannot be raised if any fact has to be ascertained."* 8. The Plaintiff is therefore correct in submitting that the Preliminary Objection as framed, to the extent it invites this Court to make findings on the pecuniary value of the suit property, necessitates an inquiry into facts, and is for that reason incapable of sustaining itself as a proper Preliminary Objection. 9. For the foregoing reasons, this Court finds that the Preliminary Objection dated 6/08/2025 is fundamentally misconceived both in law and in its application to the instant suit. This Court is constitutionally and statutorily seized of jurisdiction to hear and determine the main suit. The objection does not raise a pure point of law capable of disposing of the suit without factual investigation. The Preliminary Objection is accordingly dismissed. 10. The principles governing the grant of interlocutory injunctions are settled and derive from the East African Court of Appeal decision in **Giella v Cassman Brown & Co. Ltd [1973] EA 358**, where the Court laid down the tripartite test in the following terms: ***"First, an Applicant must show 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 an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience."*** 1. The standard for what constitutes a *prima facie* case was subsequently refined by the Court of Appeal of Kenya in **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR,** where Omolo, JA. stated in terms that have since become part of the foundational jurisprudence: ***"A prima facie case in a civil application includes but is not confined to a 'genuine and arguable case.' It is a case 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. The same Court further stated that a prima facie case is ***"more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the Applicant's case upon trial."*** 2. An order of restriction or inhibition against land is additionally governed by Section 76 of the Land Registration Act, No. 3 of 2012, which empowers the Court to make an order prohibiting, either absolutely or conditionally, the making of any entry in the register in respect of any dealing with land. The Court's powers under Order 40 of the Civil Procedure Rules equally empower it to grant injunctive relief restraining a party from committing any breach of contract or other injury of any kind. These provisions, read with the inherent powers of the Court under Sections 1A, 1B, and 3A of the Civil Procedure Act, give this Court ample jurisdiction to grant the relief sought in the Application. 3. The Plaintiff deposes that the title of the deceased, Wambui Muoria Ithiri, to land parcel RUIRU KIU BLOCK 2 (GITHUNGURI) 2991 traces its root to Githunguri Constituency Ranching Co. Ltd, through Ballot No. 1947 and Share Certificate No. 1578 dated 15/12/1988. The Plaintiff further deposes that the 2nd Defendant is asserting ownership over the suit property by relying on title deed documents that the Plaintiff strongly contends are illegal, null, and fraudulently acquired, and that following the discovery of these claims, unknown individuals began trespassing onto the suit property, purportedly having purchased portions of the land from the 2nd Defendant. 4. What emerges from the Affidavit evidence is that the land was registered in the name of the deceased prior to the Defendants obtaining their respective registrations over the resultant subdivisions. The Green Cards annexed as **"DGG 1"** purport to evidence both the existence of the original parcel and the earlier statutory restrictions that had been registered. The photograph annexed as **"DGG 2"** corroborates the Plaintiff's account of ongoing trespass and encroachment upon the suit property. 5. Perhaps most compelling in the present application is the averment regarding the conduct of the 6th Defendant, who is alleged to have filed **Miscellaneous Application E017 of 2025** at the Ruiru Law Courts for the removal of the existing restriction critically, without disclosing to that Court, to the Plaintiff, or to the cautioner, the pendency of the main suit before this Honourable Court. Following the surreptitious removal of that restriction, the 6th Defendant is alleged to have immediately transferred RUIRU KIU BLOCK 2 (GITHUNGURI) 27971 to a third party on 25/04/2025. This conduct, if proved, would constitute an instance of deliberate manipulation of Court processes calculated to defeat the ends of justice. 6. A Court of equity is entitled to draw reasonable inferences from proven conduct. As was observed in **Mbuthia v Jimba Credit Corporation Ltd [1988] KLR**, in an application for interlocutory injunction, the Court is not required to make final findings of contested facts and law but only needs to weigh the relative strength of the parties' cases. The Plaintiff's depositions, supported by documentary annexures, are sufficient at this interlocutory stage to satisfy the **Mrao (supra)** standard of a prima facie case. 7. The fact that the Application is entirely uncontested and unopposed by the 1st, 2nd, 3rd, 4th and 6th through remaining Defendants is itself a significant evidential consideration. A Court is entitled to draw adverse inferences from the failure of a party served with process to appear or file a response. In **Samuel Ndungu Ngugi & Others v Chief Land Registrar & Another[2021] KEELC 2439 (KLR),** my sister Judge Lucy Nyambura Gacheru in this Court confronted a similar factual matrix involving allegations of fraudulent registration and the urgency of restraining further disposals, and found that the failure to contest an application weighed substantially in the balance. 8. Thus, this Court is satisfied that the Plaintiff has crossed the threshold of a prima facie case with a probability of success. 9. As has been said before, land in Kenya is unique and irreplaceable. It has been observed in numerous decisions of this Court that where a suit land is being dissipated by piecemeal alienation to third parties during the pendency of proceedings, the harm caused to a Plaintiff is inherently irreparable. No award of damages would be adequate or commensurate with the loss of ancestral land. The Supreme Court, in **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR**, observed in the context of conservatory orders that: ***"The rationale of conservatory orders is to preserve the subject matter of the dispute pending final determination, so as to ensure that the dispute does not become a hollow academic exercise at the end of litigation."*** 1. In the instant matter, the Plaintiff has demonstrated that one subplot being RUIRU KIU BLOCK 2 (GITHUNGURI) 27971 has already been alienated by the 6th Defendant to a third party following the surreptitious vacation of the restriction. There are nine remaining subplots, parcels 27967–27970 and 27972–27976. The Plaintiff's apprehension that the remaining Defendants may replicate the 6th Defendant's stratagem and divest themselves of their respective subplots is neither speculative nor fanciful. 2. It is a reasonable apprehension grounded in events that have already occurred. Should such alienations be allowed to proceed unchecked, the main suit even if ultimately successful would be rendered a mere academic exercise against parties who have divested themselves of the land, leaving the Estate of the deceased with nothing but a hollow Judgment in personam. The Court is therefore satisfied that irreparable injury has been adequately demonstrated. 3. The balance of convenience in this matter is not evenly poised. On the one side, the Plaintiff seeks only the preservation of the status quo pending the hearing and determination of the main suit. The restriction sought is a temporary measure; it does not finally determine any rights. On the other side, the Defendants who have chosen not to appear or respond have offered no evidence of any prejudice, inconvenience, or legitimate transaction that would be frustrated by the grant of the orders. The principle enunciated in **Amir Suleiman v Amboseli Resort Limited [2004] eKLR** is instructive. In that case, the Court held that: ***"The Court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice."*** 1. Where, as here, the grant of a conservatory order carries a relatively low risk of injustice to the Defendants who have not adduced any evidence of hardship but the refusal of such orders carries a high risk of irreversible prejudice to the Plaintiff through loss of the suit property itself, the balance of convenience must tilt conclusively in favour of granting the orders sought. This Court adopts and applies that reasoning. 2. Further, the doctrine of *lis pendens*, recognized in **Naftali Ruthi Kinyua v Patrick Thuila Gachura & Another [2015] eKLR**, supports the proposition that a pending suit over land should itself constitute a sufficient basis for restraining transactions that may defeat the Court's jurisdiction and render its ultimate determination nugatory. The uncontroverted evidence that one subplot has already been transferred away during the pendency of these proceedings heightens rather than diminishes the urgency of preserving the remaining nine subplots. **Disposal Orders and Determination** 1. Having carefully considered the Application, the Preliminary Objection, the Affidavit evidence on record, the annexures thereto, and the written submissions of the Plaintiff, and being guided by the legal authorities discussed in this Ruling, the Court makes the following final determination and issues the following orders: 2. ***The Preliminary Objection dated 6/08/2025 raised by the 5th Defendant/Respondent is misconceived, legally untenable, and is hereby dismissed with costs. This Court is properly and constitutionally seized of jurisdiction to hear and determine the main suit by virtue of Article 162(2)(b) of the Constitution of Kenya, 2010, and Sections 4 and 13 of the Environment and Land Court Act, No. 19 of 2011.*** 3. ***The Notice of Motion Application is meritorious and is allowed by issuance of an order of restriction/inhibition for it to be registered against all the following subplots: RUIRU KIU BLOCK 2 (GITHUNGURI) 27967, 27968, 27969, 27970, 27972, 27973, 27974, 27975, and 27976 (excluding the already alienated RUIRU KIU BLOCK 2 (GITHUNGURI) 27971 which is subject to further directions).*** 4. ***All parties are restrained, including the Defendants, their agents, servants, representatives, assigns, and all persons claiming through or under them, from selling, alienating, transferring, sub-dividing, charging, leasing, or in any other manner disposing of or dealing with the said subplots referenced in the above Order (ii) pending the hearing and final determination of the main suit.*** 5. ***The Land Registrar, Ruiru, is hereby directed and notified of the terms of this order and is hereby restrained from registering or giving effect to any instrument or dealing in respect of RUIRU KIU BLOCK 2 (GITHUNGURI) 27967–27970 and 27972–27976 pending the hearing and final determination of the main suit.*** 6. ***The Plaintiff/Applicant shall, within fourteen (14) days of the delivery of this Ruling, file and serve upon the Land Registrar, Ruiru, a certified copy of this Ruling together with a formal application for the registration of this order against the respective titles, pursuant to Section 76 of the Land Registration Act.*** 7. ***Regarding RUIRU KIU BLOCK 2 (GITHUNGURI) 27971, which has allegedly been transferred to a third party following the purported vacation of the restriction in Miscellaneous Application E017 of 2025 at the Ruiru Law Courts, the Plaintiff is at liberty to apply by way of a substantive application to join the alleged transferee and/or to seek appropriate relief in respect of that subplot, and this Court reserves jurisdiction to make further orders thereon.*** 8. ***The main suit is to proceed to hearing and the parties are directed to take steps forthwith to comply with the relevant Pre-trial Conference directions so as to avoid undue delay. Pre-trial Conference on 20/07/2026.*** 9. ***Costs of the Application and the Preliminary Objection shall be in the cause.*** 10. It is so ordered. **DATED, SIGNED AND DELIVERED AT THIKA VIRTUALLY THROUGH MICROSOFT TEAMS ON THIS 13TH DAY OF JULY 2026.** **……………………….** **MOGENI J** **JUDGE** **In the virtual presence of:** Mr. Wachira holding brief for Kanyi for the Plaintiff/Applicant 1st, 2nd and 3rd Respondents – Absent Miss Waiyego for the 4th Respondent Mr. Mokaya for 5th Respondent 6th Respondent – Absent Miss Waiyego for the 7th Respondent/ Defendant Mr. Melita - Court Assistant **...........................** **MOGENI J** **JUDGE**