https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3052

Ibrahim & another v County Government of Garissa & 4 others (Land Case E008 of 2025) [2026] KEELC 3052 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3052 (KLR) Republic of Kenya In the Environment and Land Court at Garissa Land Case E008 of 2025 SM Kibunja, J May 21, 2026 Between Rahamo Mohamed Ibrahim 1st Plaintiff Mumina Oaman Lohos 2nd Plaintiff and County Government Of Garissa 1st Defendant HE Nathif Jama Adam 2nd Defendant County Secretary, County Government Of Garissa 3rd Defendant Board of Management Garissa Primary School 4th Defendant Chief Land Registrar 5th Defendant Ruling 1.The plaintiffs moved the court through the notice of motion dated 10th March 2025 seeking for orders that:a.Spent.b.A temporary injunction does issue to restrain and or prohibit the defendants, jointly or severally, whether by themselves, servants, contractors, employees, agents, assigns or otherwise howsoever, from entering, depositing materials, constructing, or developing, remaining upon, leasing, transferring, or in any manner whatsoever dealing in the suit properties known as Title No. Garissa Municipality/Block 111/465 and 466 pending the hearing and determination of the suit.c.A temporary injunction does issue to stop the 1st to 4th defendants, jointly and or severally, whether by themselves, servants, contractors, employees, agents, assigns or otherwise howsoever, from constructing, or developing or continuing the construction or development of the suit properties known as Title No. Garissa Municipality/Block 111/465 and 466 pending the hearing and determination of the suit.d.Pending the hearing and determination of the suit, the court conduit a visit of the suit properties known as Title No. Garissa Municipality/Block 111/465 and 466 to establish the encroachment, trespass and the illegal developments thereon.e.Pending the hearing and determination of the suit, the court do order a joint survey of the suit properties known as Title No. Garissa Municipality/Block 111/465 and 466 and the parcel reserved for Garissa Primary School, at the parties joint costs. In the event the defendants fail to nominate a surveyor or cover costs thereof, the plaintiffs be at liberty to appoint a surveyor at their costs, to be recovered in the cause.f.Costs to be provided.The application is premised on the ten (10) grounds on its face marked (1) to (10) respectively, and supported by the affidavit of Rahamo Mohamed, 1st plaintiff, sworn on the 10th March 2025. It is the plaintiffs case inter alia that they are the registered proprietors of the two suit properties; that sometimes in 2013, the 4th defendants claimed the said parcels and lodged complaints with the National Land Commission and the Directorate of Criminal Investigations, and further had the 5th defendant lodge a restriction against the titles; that though the National Land Commission and the Directorate of Criminal Investigations resolved the complaints in favour of the plaintiffs, the 4th defendant has continued with its claim over the said properties and the 5th defendant has continued to maintain the restriction; that the 4th defendant colluded with the other defendants and developed the said properties claiming it owned them; that on 23rd December 2024 the 1st to 3rd defendants advertised a tender for construction of a stadium/pavilion on the suit properties, and on 25th February 2026 entered thereon without their authority; that the 2nd defendant threatened to have their titles revoked and caused Mohamed Sahal Nunow, a son to 1st plaintiff to be assaulted by Quick Police Response unit, while resisting the 1st to 3rd defendants’ illegal occupation; that a report was lodged with the police on the assault on 25th February 2025; that the acts of 1st to 4th defendants amounts to trespass and the prayers sought should be granted. 2.Nathif Jama Adam, the 2nd defendant, opposed the application through the replying affidavit sworn on 23rd April 2025, deposing inter alia that the plaintiffs’ claims that the defendants had trespassed upon the suit properties is not true; that the 1st defendant in collaboration with the 4th defendant intended to construct a pavilion, masonry perimeter fence and targeted improvement of recreational facilities for the benefit of Garissa Primary School and the wider community on the school grounds, part of which the plaintiffs claim as the land; that he had not issued threats to the plaintiffs, or caused Mohamed Salah Nunow to be assaulted, or threatened to revoke the plaintiffs’ titles; that the prior investigations by the National Land Commission and the Directorate of Criminal Investigations are not binding on the development being undertaken by the 1st defendant in the public interest, and do not preclude continued verification and engagement over the boundary dispute; that the application is speculative and intended to stifle legitimate development for the benefit of the larger public and should be dismissed with costs. 3.The 3rd respondent opposed the application through the replying affidavit sworn by Mohamud Mursal on 23rd April 2025 deposing to among others that he did not trespass on the suit properties; that he intended to construct a pavilion and masonry perimeter fence in Garissa Primary School in corroboration with the 4th respondent; that if the application is allowed, the 4th respondent and the people of Garissa County will be at risk of losing on the development as the allocated monies will be returned back to the Treasury. That the application should therefore be dismissed with costs. 4.The 4th respondent also opposed the application through the replying affidavit of Ahmed Abdi Hassan, Secretary of Board of Management, Garissa Primary School, sworn on 26th April 2025, deposing inter alia that the suit properties, Garissa Municipality/Block 111/465 and 466, form part of the land historically, publicly and officially reserved for use by Garissa Primary School, and delineated as PDP No. 326/2001/11; that the disputed portion has always been occupied by the school and utilized as a playground and the 4th respondent could not trespass on what belongs to it; that the suit properties are within the fenced land occupied by the school as per survey reports including that by the Provincial Surveyor, North Eastern Province dated 18th September 2012 that confirmed that Plots 465, 466 and 467 fall within the school compound; that the purported acquisition and registration of the suit properties in the names of the plaintiffs was irregular and in contravention of the Commissioner of Lands directives of 20th June 2005 revoking allocations to third parties; that the Ministry of Education had through letter dated 24th July 2008 to Ministry of Lands requested for title to the land to be processed; that the National Land Commission had through its letter dated 20th December 2013 acknowledged its complaints over the impugned titles and recommended placement of restrictions until the dispute is conclusively resolved; that the continuation of the stay orders would result to the cancellation of the project, thereby placing the 4th respondent to suffer irreparable harm and the application should be dismissed with costs. 5.The court issued directions on filing and exchanging submissions on 24th June 2025, 30th July 2025, 23rd September 2025, and 25th November 2025. Consequently, the learned counsel for the plaintiffs, 1st & 4th, 2nd & 3rd defendants filed their submissions dated 29th October 2025, 24th February 2026 and 25th February 2026 respectively, that the court has considered. 6.The following are the issues that arise in the application for the court’s determination:a.Whether the plaintiffs have met the threshold for the prayers sought to be granted at this interlocutory stage.b.Who pays the costs? 7.The court has carefully considered the grounds on the notice of motion, affidavit evidence, submissions by the three learned counsel for the parties, the record and come to the following findings:a.The record shows that when the application first came before the court on 14th March 2025, directions on service and inter parties hearing on 26th March 2025 were issued.The parties appeared before the court through their respective counsel on 26th March 2025 and after making their submissions, the court issued directions on filing of replies and directed that “to preserve the sanctity of the property, I order that all further construction be stopped forthwith pending the determination of the present application.” The court also fixed the matter a further mention on 28th April 2025.b.On 28th April 2025, the court heard the parties’ counsel and inter alia:i.Restated the construction stoppage orders of 26th March 2025;ii.Directed that the County Surveyor visits the suit properties and carry out a survey showing the dimensions of Garissa Municipality/Block 111/465 and 466 and Garissa Primary School plot, and draw a sketch thereof illustrating the three plots and the position of the proposed development. That the parties be at liberty to be represented by their independent private surveyors to work in corroboration with the County Surveyor.iii.That the County Surveyor to file a report in court within 45 days, and the parties be at liberty to file separate reports in case there is any difference of opinion between the surveyors.iv.The matter was fixed for another mention on 24th June 2025.c.On 24th June 2025, the court heard the counsel and inter alia:i.Confirmed receipt of two survey reports;ii.Issued directions on filing and exchanging submissions;iii.Extended the interim injunction order, with a rider that “the respondents are free to carry out developments within the school land as long as the plaintiffs' Land Parcels 465 and 466 are not affected and or interfered with in any manner.” The next mention was fixed for 30th July 2025. That interim order is still in force as it was extended on 25th March 2026 when the ruling date was fixed.d.From the findings in (b) and (c) above, the prayer (e) in the notice of motion seeking for an order for a joint survey of the suit properties known as Title No. Garissa Municipality/Block 111/465 and 466 and the parcel reserved for Garissa Primary School, is for practical purposes spent.It is a fact that temporary injunction order issued on 26th March 2026 has been in force since that date, with the variation of 24th June 2025. The prayer remaining for determination is over whether the said injunction order should remain in force pending the hearing and determination of the suit.e.The learned counsel for the parties herein have submitted on among others the threshold the plaintiffs have to establish to be found deserving of the injunction order sought. They have cited among others the locus classicus cases of Giella versus Casman Brown & Company Limited [1973] EA 358, Mrao Limited versus First American Bank of Kenya Limited & 2 Others [2003] KECA (KLR) 125, Nguruman Limited versus Jan Bonde Nielsen & 2 Others [2014] eKLR, on the three principles the plaintiffs have to establish to succeed of prima facie case, irreparable harm and balance of convenience.f.That even without making any final finding on the questions of fact and law at this stage, as that need to wait for the parties to present their cases during the hearing of the main suit, the following are however, apparent:i.That a perusal of the two surveyors’ reports dated 4th June 2025 and 21st June 2025 that were prepared and filed with the court pursuant to the court order of 28th April 2025, parts of the suit properties claimed by the plaintiffs have been fenced off as part of the 4th respondent’s land, for the disputed project.ii.That from the replying affidavits by Nathif Jama Adam, Mohamud Mursal, and Ahmed Abdi Hassan, for the 1st to 4th defendants herein, the construction project the plaintiffs are complaining off is to be done with funds from the Treasury, and therefore public resources.g.That it follows that if the prayer for temporary injunction pending the hearing and determination of the suit is not granted, the construction will continue on the contested or disputed portions of the suit properties. If the plaintiffs emerge successful at the conclusion of the suit, it will mean any part of the respondents’ developments that may fall on the suit properties will have to be removed at a costs, thereby resulting to wastage of public resources used in its construction and demolition.Conversely, if the plaintiffs lose in their claim and the defendants emerge victorious, public resources that could have been used in the developments on the disputed portions of the suit properties will have been saved and available for the development. If the resources will have been recalled, others will be availed through the usual budgeting process, and wastage will have been avoided.h.That noting that it is a fact the dispute between the plaintiffs and 4th defendant over the suit properties has been there for a reasonably long period of time, and that it has been a subject of investigations and determinations by the National Land Commission and the Directorate of Criminal Investigation before the filing of this suit, and as the plaintiffs have titles reportedly issued by the relevant government institution, which titles are contested by the defendants as irregularly acquired, and applying the principles amplified in the above superior court decisions among others to the facts in his application, the court finds in the circumstances of the case, justice will better be served to both sides by maintaining the obtaining status over the suit properties.Accordingly, the court hereby extends the temporary injunction order issued on 26th March 2025 as varied on the 24th June 2025 to remain in force pending the hearing and determination of this suit. That order suffices to compromise both prayers (b) & (c) of the notice of motion.i.In respect of prayer (d) for the court to conduct a locus visit on Parcels Garissa Municipality/Block 111/465 and 466 to establish the encroachment, trespass and illegal developments, I find it is premature as parties are yet to start presenting their evidence through witnesses so as to help the court decide whether such a visit would serve any evidential purposes, in view of the two survey reports that have already been filed with the court. Though the prayer is not granted at this stage, the parties will however be at liberty to move the court for a visit once the hearing commences.j.Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya provides inter alia that costs follow the events unless where the court orders differently on good reasons being presented. Though in the instant application, the plaintiffs have emerged successful, I find it fair and just that the costs abide the outcome of the suit, in view of the nature of the dispute. 8.In view of the foregoing determinations on the notice of motion dated 10th March 2025, the court finds and orders as follows:a.That the court finds the application has merit and temporary injunction prayed for in prayers (b) & (c) is granted in the terms of the injunction order issued on 26th March 2025 as varied on 24th June 2025, pending the hearing and determination of the suit.b.The costs to abide the outcome of the suit.It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 21ST DAY OF MAY 2026.S. M. KIBUNJAELC JUDGEIn the presence of:Plaintiffs – Mr. MialeDefendants – M/s Makori for Ondambo for 2nd and 3rd defendants and holding brief for 1st and 4th defendantsMohamed - Court AssistantS. M. KIBUNJAELC JUDGE