Horeria v Murigu & 3 others (Land Case E247 of 2026) [2026] KEELC 5249 (KLR) (6 August 2026) (Ruling)

**REPUBLIC OF KENYA.** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COURTS, NAIROBI** **ELCLC E247 of 2026** **JAMES KIMANI HORERIA......................................................PLAINTIFF/APPLICANT** **-VERSUS-** **MARGARET NYAKINYUA MURIGU……………..……1ST DEFENDANT/RESPONDENT** **WEGA HOLDINGS LIMITED………………………...2ND DEFENDANT/RESPONDENT** **WILLY KIHARA NJOKI KANYOTU…………………...3RD DEFENDANT/RESPONDENT** **CHARLES MACHARIA………………………………….4TH DEFENDANT/RESPONDENT** **RULING** **Introduction** 1. The matter is coming up for the determination of the notice of motion application dated 9th June 2026 which seeks the following orders 2. **Spent.** 3. **THAT** the honourable court be pleased to order that this Application be heard and determined on a priority basis owing to the continuing acts of trespass, destruction, and interference with the Plaintiff’s occupation of the suit property. 4. **THAT** pending hearing and determination of this application inter parties the Defendants/Respondents, their agents, servants, employees, or persons acting under their authority be restrained from entering upon, trespassing onto, alienating, transferring, disposing of, developing, wasting, damaging, interfering with or in any manner whatsoever disturbing the Plaintiff’s possession, occupation, use and quiet enjoyment of his portion of land LR NO 20528 Garden Estate Ruaraka. 5. **THAT** pending hearing and determination of this suit, the Defendants/Respondents, their agents, servants, employees, or persons acting under their authority be restrained from entering upon, trespassing onto, alienating, transferring, disposing of, developing, wasting, damaging, interfering with or in any manner whatsoever disturbing the Plaintiff’s possession, occupation, use and quiet enjoyment of his portion of land LR NO 20528 Garden Estate Ruaraka. 6. **THAT** the officer commanding station Kasarani police station or any other officer whose jurisdiction covers the area in which LR NO 20528 Garden estate Ruaraka is situated assist with the compliance and enforcement of these orders 7. Costs of the application. 8. The application was premised on grounds as in the supporting affidavit. He deponed that he is the legally registered owner of the suit property being in possession for over 30 years and having been granted the rights through orders of the court in Nairobi HCC NO 399 of 2001 and Nairobi civil appeal No 41 of 2004 between himself and the 1st Defendant. That he is in the process of effecting transfer from the 1st Defendant through orders of the court issued on the 28th April 2025. 9. He deponed that despite being the owner, he has been subjected to acts of intimidation, trespass occasioning destruction upon the property amounting to loss which acts he attributes to the Defendants hence the need for the injunctive orders in this application 10. The 1st Defendant/Respondent opposed the application via the replying affidavit sworn on the 14th July 2026.She deponed that the application was an abuse of the court process and a way of forum shopping being that there was ELC 215 of 2026 where the Applicant had sought for joinder awaiting determination and that the Applicant should have filed this application in the said suit. 11. She deponed that she has always been the registered owner of the suit property and the Applicant through fraudulent means had caused for the title to be transferred to his name. She further deponed that the Applicant is using the court process to sanitise an illegally acquired title and defeat her legitimate interests in the suit property and hence not entitled to the orders sought in his applications 1. The 3rd Respondent swore an affidavit on the 9th July 2026 as the director of the 2nd Defendant’s company. He reiterated the averments of the 1st Defendant that the application was an abuse of the court process being that there was ELC 215 of 2026 where the Applicant had sought for joinder awaiting determination and that the Applicant should have filed this application in the said suit 2. He deponed that the 2nd Respondent was a lawful tenant on the suit property having entered into a lease with the 1st Defendant and they were at risk of being evicted by the Applicant. 3. The application was dispensed off by way of written submissions with the Applicant filing submissions dated 23rd July 2026, the 1st Defendant filing submissions dated 28th July 2026 whereas the 2nd and 3rd Respondent filed submissions dated 27th July 2026. Appellants submissions 1. The appellant submitted that he had established a prima facie case as in **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR** having established he has been in exclusive uninterrupted possession in the suit property and having established his home and developing on the same including cultivating the land, planting trees and made developments on the same establishing proprietary rights. 2. Counsel submitted that having established a prima facie case, if the orders are not granted, he tends to suffer irreparable harm. That the destruction already conducted on the suit property has tampered with the topography of the land and if allowed to continue, will cause loss that damages cannot compensate. 3. He submitted that the balance of convenience tilted in granting the orders having proved prima facie case and irreparable harm 1st Respondent’s submissions 1. The 1st Respondent submitted that the Applicant had not established a prima facie case being that the instrument of title the basis for which he claimed proprietary rights was under challenge to have been acquired illegally being that she was still the registered owner of the suit property. That the terms consent relied upon in Nairobi Civil Appeal 41 of 2004were not adhered to hence consent lapsed and ceased to be of enforcement. 2. That the appellant had not proved he was in physical possession of the suit property and hence the requirement for proof of irreparable harm also fails. Lastly counsel submitted since the issue of ownership was yet to be decided and the title of the appellant under scrutiny the balance of convenience tilted in not granting the injunctive orders 2nd and 3rd Respondent’s submissions. 1. The 2nd and 3rd Respondents reiterated the contents in their replying affidavit. That the Applicant has not established a prima facie case reason being that the he has failed to establish that the provisional title he possesses is indeed good title from its root and that the 1st Defendant still has a title to the suit property which has not been cancelled, relying in **Mrao Ltd. Vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR** 2. It was submitted that failing to proof a prima facie case, then the Applicant has also failed to proof what loss he will suffer that damages cannot compensate **Analysis and determination** 1. Having considered the pleadings, the responses thereto and the submissions filed, the Court finds that the only substantive issue for determination is whether the Applicant is entitled to the injunctive orders. 2. The conditions governing the grant of an interlocutory injunction in this jurisdiction are firmly anchored in the celebrated East African decision of **Giella Vs Cassman Brown & Co Ltd 1973 EA 358** where the Court pronounced that an Applicant must first establish a prima facie case with a probability of success, secondly demonstrate that he stands to suffer irreparable injury that would not adequately be compensated by an award of damages, and thirdly, that if the Court is in doubt on the foregoing, the application ought to be determined on the balance of convenience. These three conditions have since been consistently applied by our Courts as the governing standard for injunctive relief. 3. The threshold for establishing a prima facie case was authoritatively settled by the Court of Appeal in **Mrao Ltd Vs First American Bank of Kenya & 2 Others (2003) KLR 125** where the Court held that a prima facie case is one in which, on the material presented before the Court, a tribunal properly directing its mind 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. This Court is in full agreement with that formulation and adopts it as the applicable standard 4. In the present case, the Applicant seeks injunctive orders on the basis that he was declared the owner of the suit property by the orders of the court in Nairobi HCC NO 399 of 2001 and Nairobi Civil Appeal No 41 of 2004.That in the appeal, a consent judgement was entered into as between himself and the 1st Respondent which consent judgement is still in force. I have perused the said consent judgement attached to the supporting affidavit and noted that the Applicant was to pay a sum of Kenyan shillings nine million, five hundred thousand (Ksh 9,500,000/=) to the 1st Respondent and in return, the 1st Respondent was to surrender completion documents and to effect transfer in favour of the Applicant. 5. From the annexures filed and relied on by the Applicant to point to his ownership, this court delivered a ruling in ELC miscellaneous application E001 dated 28th April 2025.In the said ruling the issue of injunctions was being addressed which caused this court to go into the depths of whether the terms of the consent judgement had been adhered to in order to establish a prima facie case. The learned judge noted that the Applicant had paid some substantial amounts and had been in possession of the property for over 10 years since the consent judgement had been entered into and that the 1st Respondent had not challenged the terms of the said consent. In the end the court allowed the orders of injunction 6. Going by the above decision, the court found the Applicant to have proved a prima facie case having paid some amounts to secure the property and having been in possession hence had rights that ought to be protected. The Applicant is before the court still seeking for injunctive orders to Respondents from interfering with his quiet possession. The rights of the Applicants have not been extinguished as he is still in possession of the suit property and has alluded to being in the process of finalizing transfer of the suit property in his name. The 1st Respondent has raised the issue of the title having been procured by fraud which allegations need to be proved in a full hearing. 7. I find that the Applicant has established a prima facie case as in **Mrao Ltd. Vs First American Bank of Kenya & 2 Others (2003) KLR 125.** 8. On the issue of irreparable harm that cannot be compensated by way of damages I find that alienation and any form of interference with the property would cause harm that is actual, substantial, and incapable of adequate monetary compensation. The Applicant has submitted that he is constantly being threatened and harassed by goons armed with destructive weapons such as pangas and machetes who have also caused destruction of his property. The Applicant attached photos of his farm produce having been destroyed. These allegations have not been controverted by the Respondents. Accordingly, I find that the Applicant has satisfied the second limb of the “**Giella – Versus - Cassman Brown test (Supra)”** by proving irreparable injury. 9. Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in his favour. In the case of **“Pius Kipchirchir Kogo Vs Frank Kimeli Tenai [2018] eKLR** which defined the concept of balance of convenience as:“*The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed.* 10. The Plaintiff/Applicant holds having settled and been in occupation of the suit property for over 3 decades, he has established his home, cultivated crops and carried out developments. The Respondents on the other hand have not provided proof how the injunctive orders will prejudice them. 11. Accordingly, I find that the balance of convenience tilts in favour of the Applicant, and preservation of the status quo through injunctive relief is the lower risk of injustice awaiting the full trial. The decision of “**Amir Suleiman Vs Amboseli Resort Limited [2004] eKLR**” where the learned judge offered further elaboration on what is meant by balance of convenience and stated; -*“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”* **Final disposition** 1. **THAT** this court having granted injunctive orders in ELC E215/2026 which orders the Applicant has applied to be set aside and/or varied and having found that there is no basis to the varying the said orders, I find that the issues raised by the parties in this matter and ELC 215/2026 can be settled when the matter is conclusively heard and a merit determination is made and consequently, I order parties to maintain the status quo obtaining today pending the hearing and determination of the substantive suit. 2. **THAT** suo moto I order that both matters be consolidated and ELC E215/2026 be the lead file. 3. **THAT** parties are directed to comply with the provisions of Order 11 within 30 days and have this matter fixed for hearing within 60 days herewith. 4. Mention on 26th October 2026 to confirm. 5. Each party shall bear the costs of this Application. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **6th** day of **August, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Mr. Gaturu (SC) with Kimani** for the Plaintiff/Applicant **Mr. Kingori** for the 1st Defendant **Mr. Kingori holding brief for Muraya** for the 2nd and 3rd Defendants **Ms. Mwangi** Court Assistant