https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3491

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KILGORIS** **ELCLC E024 OF 2025** **NEEL ASHWIN GUDKA ……………………………………………..1ST APPLICANT** **AKASH KIRIT GUDKA ……………………………………………...2ND APPLICANT** **VERSUS** **OSCAR KIPCHUMBA SUDI ………………………………………1ST RESPONDENT** **MARA GOLF AND WILD RESORT LIMITED…………………….2ND RESPONDENT** **NAKUYIET NDOROTET KURA …………………………………….3RD RESONDENT** **STEPHEN PARTARETO OLE BARTA ……………………..………4TH RESPONDENT** **THE LAND REGISTRAR, TRANSMARA…………………..………5TH RESPONDENT** **RULING** 1. This Ruling relates to the Notice of Motion Application dated 12th of March 2024 seeking temporary injunctive orders was initially slated for delivery on the 15th of June 2026 but is being delivered earlier by notice as the court shall not be sitting on the said date. The orders sought in the application are as follows: - 1. spent 2. spent 3. that pending the hearing and determination of this suit, this honourable court be pleased to issue a temporary injunction restraining the 1st Defendant whether by himself, his agents, servants, employees, and /or any other persons acting under his authority from entering upon, trespassing onto constructing upon, developing, alienating, transferring, charging, leasing, selling and/or in any manner whatsoever interfering with the Property Title no. Transmara / Kerinkani/772 4. that pending the hearing and determination of this suit, this honourable court be pleased to issue a temporary injunction restraining the 2nd, 3rd and 4th Defendant whether by themselves their directors, officers, agents, servants, and /or any other persons acting under their authority from asserting ownership, exercising control over, dealing developing alienating, charging, leasing and/or in any manner whatsoever interfering with the Property Title no. Transmara / Kerinkani/772 5. That pending the hearing and determination of this suit, the 3rd and 4th Defendants, whether personally or through any company nominee, agent proxy or related entity, be restrained from entering upon, remaining on, developing, alienating, charging, leasing, selling or otherwise dealing with Title no. Transmara/ Kerinkani/772. 2. At the exparte stage on 16th April 2026, the court issued directions on service of the Application and filing of responses and written submissions and slated the matter for *Interparte* hearing on 27th April 2026 at 8.30 a.m by way of highlighting of the oral submissions. The Court equally issued an order of maintenance of the prevailing status quo on the ground to mean that the person currently in occupation to remain so but not to undertake any new developments, while the status quo on the register of the suit parcel to remain in the name of the current registered owners so as not to transfer and/or charge to a third-party pending determination of this application. 3. On 27th of April 2026, at the i*nterparte* only the Applicants Advocates were present, the court was satisfied as to service of the Application and there being no response to the Application, the court deem the same to be unopposed but directed the same to be heard on its merits in line with the observation of the Court of Appeal in its decision in the case of **Karugi and others vs Kabiya & 3 others 1983 (eKLR)** where the Court held ***“the burden on a Plaintiff to prove his case remains the same throughout the case even though the burden may became easier to discharge where the matter is not validly defended, the burden of proof is not way lessened because this is heard by way of formal proof.”*** 4. The court thus heard oral submissions from Mr. Ahmed Nassir Abdullahi learned Senior Counsel who appeared alongside Ms. Mulwa for the Applicant and also considered the written submissions filed by the Applicants. In a nutshell the Applicants submit as follows; 1. That there are no competing titles over the suit property as the Applicants title had been upheld in a previous judgment of this court delivered in Kilgoris ELC E008 of 2022 between Neel Gudka and Osika Ole Roitei, which judgment had settled the issue of ownership and was annexture NAG12 in the Supporting Affidavit while annexture NAG 10 and 11 were purported transfer by the 2nd and 3rd Defendants to the 1st Defendant. The Applicant submitted that a party without a valid Title could not pass any title to another. And that the 1st Defendants title was legally non-existent. Learned counsel placed reliance on the decision in the case of Giella vs Cassman Brown Limited, Mrao Limited vs First American Bank Limited as well as Nguruman Limited v s Jan Bonde Nielsen 2014 eKLR among other decisions. 2. The Applicant In his written submissions identified, framed and submitted on 4 issues for determination. Bearing in mind that the matter comes up for a ruling on an interlocutory Application the first three issues framed for determination as framed and submitted by the applicant as well as the authorities cited in support of the first three issues shall not be taken into consideration at this stage of the suit as they are issues relating to the merits of the main suit. **Issues for determination** 1. Having considered the Application, the supporting affidavit the annextures thereto as well as the submissions, and considering the relevant provisions of the law. The court frames the following as the issues for determination: * + 1. whether or not the application is merited, in deciding this issue the court shall firstly determine whether the threshold for issue of a temporary injunction has been met? 2. what reliefs ought to issue? 3. Who bears the cost of the Application? **Analysis and determination** 1. The principles for grant of a temporary injunction as stated in Giella Vs. Cassman Brown Ltd are ***“Firstly, an Applicant must show a primafacie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer ireparable 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.”*** 2. With respect to a *primafacie* case, the same was defined in Mrao Limited Vs.First American Bank Limited ***“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 part so as to call for an explanation or rebuttal from the latter.”*** 3. The question thus, is has the Applicant established a primafacie case, in terms of establishing a right that has been infringed? The Applicants, have exhibited a copy of a title of Transmara Kerinkani/772 issued on 26th June 2014 the same is annexture NAG1 in their names, a copy of the LCB consent, copy of official search and copy of green card and a copy of the judgment in Kilgoris ELC E008 of 2022 4. In view of the annextures exhibited by the Applicants, to wit, a copy of the title together with the search certificate and a copy of the green card, noting further that the Applicants equally exhibited a copy of title issued in 2025 in the name of 1st and 2nd Respondents which was purportedly transferred to them by the 3rd and 4th Respondents, as well as copy of the judgment in the previous suit which judgment confirmed ownership of the suit property to the Applicants, the applicants have thus established that they are the registered owner of the suit property which registration confers upon them the rights and privileges belonging or appurtenant thereto under section 24(a) of the Lands Registration Act. It is these rights that the Respondents are infringing on. On the strength of the said documents the court finds that the Applicant has made out *a prima facie* case with probability of success and the court shall now consider the other elements in Giella vs cassman Brown. 5. On irreparable injury, the Court Corn Products Limited vs [Corn Products Kenya Limited & another [2014] KECA 302 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/302/eng%402014-10-24) quoting the decision in **FLM Rover International Limited and others versus Common Film Sales Limited 3ALLER 772)**stated irreparable injury to be *”****By irreparable loss is meant that the injustice that would be caused to the defendant if the applicant were granted the injunction and later failed at the trial does not outweigh the injustice that will be caused to the plaintiff if the injunction were to be refused but he succeeded, at the end of the trial****”.* 6. Applying the said definition to the facts herein and recognising the Applicants are the bonafide registered owner of the suit property pursuant to the previous judgment(annexture NAG 12 ) that he has exhibited the Applicants are entitled to rights conferred on them by Statute as observed in the preceding paragraph including the right of quiet possession of the suit property, if the Respondents are to proceed with their injurious actions of trespass using a fraudulently procured title as complained of in the grounds in support of the Application and the Applicants are eventually to succeed it would thus occasion irreparable injury on the Applicants as defined above, the Applicants have thus demonstrated irreparable injury. 7. Lastly on the third principle the balance of convenience the same is to weighed against the interests of the Applicants and the Respondents.as was observed in the case of Paul Gitonga Wanjau vs Gathuthis Tea Factory where the court in respect of balance of convenience stated **"the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction.**” The Applicants having demonstrated a prima facie case as well as irreparable injury to be suffered, the balance of convenience when weighed between the two interests of the two parties favours the Applicant. 8. Thus, In answer to issue number 1 the court finds that the Applicants have meet the threshold for grant of an injunction and answers issue in the affirmative that the Application is merited. 9. On issue number 2 on what reliefs ought to issue, the court finds that although it had issued an order for maintenance of Status quo the said order would be inadequate in view of the injurious conduct of the respondents and therefor substitutes the orders for maintenance of status quo with the orders of the injunction sought in prayers 3, 4, and 5 of this Application pending hearing and determination of this suit. 10. The Applicant having succeeded in the Application is awarded the costs of the Application. Dated at Kilgoris this 9th day of June 2026 M.N. Mwanyale Judge. **In the presence of** CA Sylvia/Clara Ms. Mulwa h/b for Mr. Ahmed Nassir Abdulilahi for the Plaintiff N/A for the Defendant