https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4328

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIVASHA** **ELC LAND CASE NO. E017 OF 2026** **ISAAC OGUTU OGUTU……………...……….….……….……..………..….PLAINTIFF** **VERSUS** **STEPHEN NDUNGU KARANJA….……………………………..……1ST DEFENDANT** **RAHITO INVESTMENT LTD…..………………………………….…2ND DEFENDANT** **AGRICULTURAL DEVELOPMENT CORPORATION…………...3RD DEFENDANT** **CHIEF LAND REGISTRAR…………………………………………....4TH DEFENDANT** **RULING** 1. Through a Notice of Motion Application dated 6th March 2026 brought pursuant to the provisions of Order 40, Rules 1, 2,3, 4 & 8 and Order 51, Rule 1 of the Civil Procedure Rules, Sections 1B and 3 of the Civil Procedure Act and the Inherent powers of the Court, the Plaintiff herein has sought that pending the hearing and determination of the suit, the Honourable Court be pleased to issue an order of temporary injunction restraining the Defendants herein either by themselves or their agents, staff or any person howsoever from remaining upon, invading, trespassing on, destroying, developing, selling, transferring, charging, leasing, gifting, cultivating and or in any manner whatsoever dealing or transacting with the properties known as L.R No. 28068/69 and L.R No. 28068/70 situated in Ndabibi within Nakuru County (the suit properties), which order should be enforced by the Officer Commanding Police Station , Naivasha Sub-County. 2. The Application was supported by the grounds therein and a Supporting Affidavit of even date, sworn by Isaac Ogutu Ogutu, the Plaintiff herein, who deposed that he is the lawful registered owner of the properties known as L.R No. 28068/69 and L.R No. 28068/70, situated in Ndabibi within Nakuru County (the suit properties). He explained that he had acquired the suit properties from the 3rd Defendant herein by transfer instruments, both dated 18th December, 2013, and registered on 22nd July 2014, following a lawful allocation process and due compliance with the attached conditions. 3. That prior to the purchase of the suit properties, he had tendered an application for land allocation to the 3rd Defendant by a letter of Application dated 6th January 1977. That thereafter, the 3rd Defendant, by a letter dated 11th February 1997, communicated its approval of his request for allocation, wherein it allocated him a parcel of land known as 20591/129, measuring approximately 13 acres. That he had duly accepted the said allocation and remitted the required allocation fees of Kshs. 195,000/= by his letter dated 27th February 1997. That subsequently, he was issued with a payment receipt dated 27th February 1997, confirming that the required purchase price for the parcel had been paid in full. 4. Subsequent to the said allocation, the 3rd Defendant through its letter dated 19th April 2007 notified him of an amalgamation and subdivision of parcels within the Ndabibi complex wherein his parcel No. 20591/129 had given rise to two plots being 274 and 275 measuring10 and 3 acres respectively. That thereafter, vide its letter dated 16th May 2007, the 3rd Defendant demanded additional charges for the plots to cover survey, consent, stamp duty, and other disbursements, which he paid, and was issued with an official receipt confirming the said payments. That thereafter, the 3rd Defendant had applied for and was issued with the Land Control Board (LCB) Consent dated 14th May 2013 authorizing the transfer and registration of the suit properties in his favour. 5. He deposed that following the survey of the suit properties and issuance of titles in the name of the 3rd Defendant, the said 3rd Defendant in a letter dated 28th March 2012 notified him of the new L.R numbers that had been assigned to the suit properties and requested him to visit their offices to execute the transfer instruments. Consequently, he had executed transfer instruments dated 18th December 2013 with the 3rd Defendant relating to the suit properties, which were registered on 22nd July 2014, wherein the transfer of interest was noted as entry number 2 in the respective Certificates of Title. That the 4th Defendant had, on several occasions, issued him with official searches, including those issued on 2nd March 2026, confirming that he is the lawful registered proprietor of the suit properties. 6. He contended that he had maintained a peaceful occupation and use of the suit properties until recently when the 1st and 2nd Defendants conspired to dispossess him of the land for ulterior motives. He argued that the 1st and 2nd Defendants’ forcible possession of his properties is contrary to the law and that there is imminent risk that the said illegal possession of the suit properties will persist and the same will be disposed of to unsuspecting 3rd parties unless the Court intervenes by granting an order of temporary injunction as prayed herein. 7. He argued that the 1st and 2nd Defendants, in their concerted scheme to dispossess him of the suit properties, had occasioned extensive damage to his vast and costly developments thereon unjustly and without regard to the law and his property right. That he stood to suffer irreparable harm and loss should he be blocked and/or restrained from the suit properties, as the same were his sources of livelihood where he had been carrying out farming activities to sustain and take care of his family. 8. That having demonstrated a prima facie case and the irreparable harm that he would suffer if the orders herein are not granted, the balance of convenience tilts in favour of granting the same in the interest of justice. 9. In response and opposition to the said Application, the 1st Defendant through his Replying Affidavits dated 15th April 2026 deposed that he is also the Plaintiff in Naivasha ELC 011 of 2016 Stephen Ndungu Karanja v Rahito Investment Limited & Others that the court had ordered that the same be heard together with the instant case since it involves the same subject matter. He stated that the land parcels L.R. No. 28068/69 and L.R. No. 28068/70, formerly plot Nos. 274 and 275 respectively were owned by the 3rd Defendant herein. 10. That sometime back, the 3rd Defendant decided to hive off parcels of its land to settle some of its employees, and to sell other parcels to members of the public. He deposed that one Nicholas Kipngetich Kirwa had been allocated the suit plots, as per various allocation receipts as annexed herein, wherein he had taken possession of the same, and thereafter sold them to him (1st Defendant) herein for a valuable consideration, through a sale agreement dated 11th October 2006, in which he paid in full. 11. He contended that upon purchase and taking possession of the suit plots, he had embarked on serious commercial farming, sunk a borehole, installed solar panels, built greenhouses and had carried out extensive work thereto. That however, while he was in the course of his Agri-Business project, some people visited the land claiming ownership. That thereafter, he had received a request to avail himself at the 2nd Defendant’s advocate's offices in Nakuru with his ownership documents. He complied. 12. There had ensued an argument on who was the rightful proprietor of the suit parcels after he was informed that the 2nd Defendant had titles to the same wherein, after a lengthy deliberation, the 2nd Defendant’s Counsel had asked if they could buy him off so that it could consolidate the parcels with other neighbouring parcels that it owned. 13. He sought time to value his land, which was valued at about Kshs. 27,000,000/=. The 2nd Defendant’s counsel sought to pay him Kshs. 3,000,000/=, which he rejected, and the offer was increased to Kshs. 5,000,000/=, which he also rejected. 14. That subsequently, on or about the 12th February 2026, he had been served with a demand letter giving him 14 days to vacate the suit premises, claiming that he had been occupying the same illegally wherein his Advocate thus filed suit No. E011 of 2016 and served the pleadings upon the Respondents. 15. That the Applicant herein lied under oath since he had never seen him, nor had he ever visited the land. That, on the contrary, He (1st Defendant) has always been in possession of the suit parcels and has carried out extensive developments therein. 16. He contended that the Plaintiff’s registration must have been acquired fraudulently, explaining that there were numerous cases within the neighbors of such episodes whereby people were fraudulently acquiring titles in people’s land and evicting them forcefully and that the same had happened to his two neighbours who had been forcefully evicted without a court order in the year 2025. That, considering the investments he had made in the land, untold suffering would be occasioned to him; hence, he urged the court to protect his investments by granting the conservatory orders sought. 17. In his Supplementary Affidavit dated 3rd June 2026, he reiterated the contents of his Replying Affidavit as to the chronology of events leading to the filing of ELC Case No. E011 of 2026 to contend that upon serving the said suit upon all the parties, they had chosen to neither enter appearance nor respond and that it was only when the same was coming for inter-partes hearing that he had been served with the pleadings in the instant suit. He stated that it was just a coincidence that he had been summoned over the land by the 2nd Defendant, filed a case, the defendants choosing not to defend the same and that on 29th April 2026, orders had been granted in the said suit to the effect that the Defendants therein should not interfere with his possession. 18. He alleged that the Plaintiff and the 2nd Defendant are one and the same person or serving the same master, as there was no way that both of them could have titles to the same parcel of land and approach the court simultaneously protecting each other. He reiterated that there were numerous land-grabbing cases in the Ndabibi area involving the 2nd Defendant. 19. He maintained that the Applicant herein had never entered the suit properties and urged the Court to dismiss the Plaintiff’s Application herein and allow his peaceful stay on the land until the fraudulent issue is settled, just as it had granted him the same in ELC No. E011 of 2026. 20. The 2nd to 4th Defendants did not participate in the Plaintiff's Application herein. 21. The instant application was disposed of by way of written submissions herein summarised. **Plaintiff’s Submissions.** 1. The Plaintiff’s Submissions dated 24th April 2026, framed one issue for determination, to wit; whether the Plaintiff has met the threshold for issuance of temporary injunction orders. 2. To answer this, he relied on the classic three-tier test established in the landmark case of **Giella Vs. Cassman Brown (1973) EA 358**. 3. He furtherrelied on the definition from **Mrao Limited Vs. First AmericanBank of Kenya (2003) KLR 125** to argue that he had a clear, unmistakable right over the land that deserved protection: that he was the registered owner of L.R. Nos. 28068/69 and 28068/70, having legally acquired and transferred them from the 3rd Defendant. He argued that the 1st Defendant has failed to establish a *prima facie* case as he had no Certificate of Title to show registered ownership. 4. That the 1st Defendant's predecessor (Nicholas Kipngetich Kirwa) was allocated the land on 14th January 1998 with a strict condition to pay within 30 days, wherein payment was done on 3rd February 1999, well outside the 30-day window, as depicted by the 1st Defendant's own evidence. Therefore, the original offer automatically lapsed, and no valid title could have legally passed to the 1st Defendant. 5. Citing the case in **Nguruman Limited vs Jan Bonde Nielsen and 2 Others (2014) eKLR**, the Plaintiff argued that he will suffer severe, irreversible harm if the injunction is denied because the 1st and 2nd Defendants were actively conspiring to dispossess him, destroy his costly developments, and sell the land to unsuspecting third parties, which would effectively destroy the subject matter (substratum) of the suit. 6. Secondly, that farming on the suit land was hisprimary source of income used to feed and sustain his family and therefore being barred from it would cause immediate financial ruin. He maintained that the Defendants had never actually occupied the land, meaning an injunction will cause them no harm. 7. On the issue of Balance of Convenience, the Applicant relied on the decision in **Chebii Kipkoech v Barnabas Tuitoe Bargoria & Another [2019] eKLR**, to submit that the balance of convenience heavily tilts in his favour because he was currently the officially registered legal proprietor of the properties wherein he was partly in physical possession and stood to lose everything if he was evicted without cause. 8. Finally, the Applicant submitted that because he had fully satisfied all three legal requirements under the law, the Court should grant the temporary injunction orders as prayed in his application dated 6th March 2026, with costs. **1st Defendant’s Submissions.** 1. The 1st Defendant, on the other hand, vide his submissions dated 10th June 2026 summarized the factual background of the matter before framing his issues for determination as follows: * 1. What is the impact of the titles held by the Plaintiff and the 2nd Defendant? 2. Whether the Plaintiff’s Application is merited. 3. What orders should issue? 4. Costs. 2. The 1st Defendant pointed out that both the Plaintiff and the 2nd Defendant hold different sets of titles over the exact same piece of land. He questioned the legitimacy of both titles, arguing that oral evidence (not just affidavits) was required to uncover how they were acquired. 3. He alleged that both the Plaintiff and 2nd Defendant were acting in concert to protect each other’s interests. That, in contrast to paper titles, he had been in uninterrupted physical possession of the land since 2006 based on allocation documents from the 3rd Defendant. 4. He relied on the decision in **Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others [2016] eKLR** to support his claim regarding collusion and the suspect nature of the two competing titles. 5. He also relied on the decision in **Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR)** to assert that his long-term possession and extensive developments cannot simply be disregarded or abruptly disturbed. 6. On the evaluation of the merit for the prayer for injunction, the 1st Respondent submitted that the Applicant/Plaintiff had failed to meet the legal threshold for an injunction. That because he (1st Defendant) had been on the ground undisturbed for 20 years, the current state of affairs must be protected. He argued that the balance of probabilities favoured keeping the situation exactly as it has been (status quo ante) until a full trial with oral testimony on who holds the legitimate title is heard and determined. He relied on the decisions in **Giella v. Cassman Brown (1973) EA 358** and **Mrao Ltd v. First American Bank of Kenya (2003) KLR 125** to argue the classic test for an injunction, emphasizing that the Applicant/Plaintiff failed to establish a prima facie case with a probability of success given the disputed facts. 7. He submitted that he had deep roots and massive investments on the land, arguing that monetary compensation would not suffice. He also noted that the court had already issued orders on 29th April 2026 in his own suit (ELC No. E011 of 2026) protecting him from eviction by the 2nd Defendant. Granting the Plaintiff's current application would therefore conflict with those active safety orders. He relied on the decision in **Waithaka v Industrial & Commercial Development Corporation [2001] KLR 374** to support the weight of his long-term occupancy and to argue that the court must safeguard his physical possession and developments. 8. Finally, the 1st Respondent concluded by submitting that it was prudent for the Court to maintain the status quo ante, leaving him in possession to safeguard his developments until the rightful owner is definitively determined at trial. He ought to dismiss the Applicant/Plaintiff's Application dated 6th March 2026, with costs. **Determination.** 1. I have considered the Plaintiffs' application, the response by the 1st Defendant only, as the other Defendants decided not to participate in the application. I have also considered the submissions by counsel, the authorities cited and the applicable law. 2. The Applicant/Plaintiff’s case centres on a claim of lawful registered ownership and an attempt to protect his land from alleged illegal encroachment and trespass wherein he argued that he is the undisputed, legally registered owner of L.R No. 28068/69 and L.R No. 28068/70 in Ndabibi, Nakuru County. That in 1977, he formally applied for land allocation from the 3rd Defendant, who allocated him 13 acres (Parcel No. 20591/129) for which he paid Kshs. 195,000/=. In 2007, the 3rd Defendant amalgamated and subdivided the land into plots 274 and 275, for which he paid all demanded statutory fees (survey, Land Control Board consent, stamp duty). 3. In 2014, following official surveys, the properties were registered, and Certificates of Title were issued in his name. He has maintained peaceful, uninterrupted physical occupation and use of the suit properties since he acquired them, and the land is his primary source of livelihood, on which he has invested in extensive, costly developments and actively conducts farming to sustain his family. 4. He alleged a conspiracy between the 1st and 2nd Defendants to unlawfully dispossess him of his land wherein they had forcefully and illegally intruded upon his land, and caused extensive damage to his developments. That there was imminent risk that they would permanently displace him and sell the land to unsuspecting third parties, which would destroy the subject matter (substratum) of the legal suit. 5. That because he holds the legal title deeds, he had a prima facie case and sought from the court to issue a temporary injunction to kick the Defendants off the land and restrain them from interfering with the property until the court can permanently determine the ownership dispute. 6. The 1st Respondent's case, on the other hand, was that he was the rightful occupier and purchaser of the land (formerly plot Nos. 274 and 275). That the land originally belonged to the 3rd Defendant, who hived it off to settle employees and sell to the public, one of them being Nicholas Kipngetich Kirwa, who subsequently sold it to him via a valid sale agreement dated 11th October 2006 for valuable consideration, and he had fully paid the amount and took immediate physical possession in 2006 where he had lived and worked on the land uninterrupted for roughly 20 years and had established a major Agri-Business project and heavily developed the property by, Sinking a borehole, installing solar panels, constructing greenhouses and conducting serious commercial farming. 7. That the Applicant/Plaintiff's claim was fraudulent in that both the Plaintiff and the 2nd Defendant hold different sets of title deeds to the exact same land, which points to systemic fraud or land-grabbing thereby raising suspicion that both the Plaintiff and the 2nd Defendant were "serving the same master" and acting in concert to forcefully evict him and insulate each other. He maintains that the Applicant/Plaintiff lied under oath about being in possession, stating the Plaintiff has never set foot on the property or been seen on the ground. 8. He pointed out that he had already sought the court's intervention regarding this exact land in a parallel suit (Naivasha ELC No. E011 of 2026) where, vide the court's orders of 29th April 2026, the Defendants had been restrained from interfering with his possession. 9. That a paper title alone could not override his long-term physical possession and massive economic investments. He asks the court to dismiss the Plaintiff's application and maintain the status quo ante until a full trial is heard and determined. 10. From a summary of the above, I find that the sole issue for determination at this interlocutory stage is whether the Plaintiff has met the threshold for the grant of a temporary injunction based on the timeless principles set out in **Giella v. Cassman Brown & Co. Ltd (1973) EA 358,** which are: 11. Whether the Applicant has established a prima facie case with a probability of success; 12. Whether the Applicant stands to suffer irreparable injury which cannot be adequately compensated by an award of damages; and 13. If the court is in doubt, it will decide the application on a balance of convenience. 14. A prima facie case was described in the case of **Mrao vs First American Bank of Kenya Limited & 2 Others (2003) KLR 125**, as follows: *“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. A prima facie case was defined in **the Mrao Ltd case** (supra) as one which is more than arguable, showing a right which has been infringed and carries a probability of success. 2. The Plaintiff has produced Certificates of Title demonstrating that he is the registered proprietor. On paper, this establishes a strong statutory right. However, the 1st Defendant has challenged the legitimacy of these titles, raising serious allegations of systemic fraud and land-grabbing within the Ndabibi complex. He points to double-titling involving the 2nd Defendant and highlights structural anomalies in the historical allocation timelines. 3. Where there are deep, conflicting assertions of fraud and competing sets of titles over the same parcel of land, such complex issues cannot be summarily resolved at an interlocutory stage purely on affidavit evidence. They require comprehensive probing, examination of the land registry records, and oral testimony during a full trial. Therefore, while the Plaintiff holds a paper title, the probability of success remains severely clouded by the triable issues raised by the 1st Defendant. 4. 2. On Irreparable Injury and the Status Quo 5. The Plaintiff claims that the 1st Defendant is a trespasser threatening his source of livelihood. However, the 1st Defendant has presented substantial evidence on affidavit demonstrating extensive physical infrastructure on the ground, greenhouses, solar installations, and a borehole, dating back well before the current dispute escalated. 6. If this Court issues a blanket temporary injunction as prayed by the Plaintiff, it will effectively evict the 1st Defendant before the root of the title is determined. Conversely, if the 1st Defendant is permitted to further alter the land, the Plaintiff's claim could be compromised. 7. The primary purpose of an interlocutory injunction is to preserve the substratum (subject matter) of the suit. I am guided by the Court of Appeal in **Njiriri & 5 others v County Government of Nairobi & another [2023] KECA 419 (KLR)** where it held as follows; *‘’We take to mind the fact that the suit properties comprise land allegedly reserved for a bus terminus; that the competing claims are that the applicants are in occupation thereof while the respondents claim that, at present, the plots are collectively in use as a bus terminus, and that none of the applicants have developed any of them as claimed. To disturb the status quo would, in our view, pose the risk of rendering the intended appeal (if successful) nugatory. The balance of convenience dictates that it be maintained so as to preserve the substratum of the intended appeal. This Court in [Mugah v Kunga](https://new.kenyalaw.org/akn/ke/judgment/keca/1988/28%22%20%5Ct%20%22_blank) [1988] KLR 748 held that “in land matters status quo orders should always be issued for purposes of preserving the subject matter.”* 1. This court’s practice directions vide Gazette Notice No. 3461/2025 Practice Direction No. 23(l) also gives the court the leeway and discretion to make an order for status quo to be maintained until determination of the case. With this in mind, and whilst cautioning myself on the preservation of the status quo. I must prevent the property from being wasted, damaged, or alienated before the parties' rights are fully ventilated. 2. From the parties' pleadings, their allegations of double-titling stand side-by-side with long-term physical possession; the balance of convenience dictates that the court must freeze the situation on the ground to prevent chaos, breach of peace, or the economic ruin of either party. The balance of convenience strongly favours maintaining the status quo as it currently exists on the ground. 3. Consequently, rather than granting the specific restraining orders sought by the Plaintiff, which would disrupt active possession and conflict with subsisting orders in ELC No. E011 of 2026, the court finds that the ends of justice will be best served by an order preserving the current state of affairs pending trial. 4. Accordingly, I make the following orders: 5. The Plaintiff's Application dated 6th March 2026 is partially allowed to the extent that an order of maintenance of the status quo is hereby issued. 6. For the avoidance of doubt, the status quo to be maintained is that the 1st Defendant, Stephen Ndungu Karanja, shall remain in quiet physical possession and occupation of the suit properties (L.R No. 28068/69 and L.R No. 28068/70) and shall continue with his current agricultural activities without any interference from the Plaintiff, the 2nd Defendant, or any of their agents. 7. The 1st Defendant is strictly restrained from carrying out any new structural developments, erecting new buildings, or altering the nature of the land beyond his current operational infrastructure. 8. All parties to this suit, including their agents, servants, or staff, are strictly restrained from selling, transferring, charging, leasing, gifting, sub-dividing, or in any manner whatsoever dealing or transacting with the titles or the land mass of the suit properties pending the final hearing and determination of this suit. 9. The Officer Commanding Police Station (OCS), Naivasha Sub-County, is directed to ensure strict compliance with this order and maintain law and order on the ground. 10. The costs of the application shall be in the cause. 11. Parties to comply with the provisions of Order 11 of the Civil Procedure Rules within the next 21 days for the hearing of the main suit herein. **Dated and delivered via Microsoft Teams at Naivasha this 9th day of July 2026.** **M.C. OUNDO** **ENVIRONMENT & LAND COURT– JUDGE**