https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4440

Waite v Mukindu (Environment and Land Case E036 of 2025) [2026] KEELC 4440 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 4440 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Case E036 of 2025 EK Makori, J June 10, 2026 Between James Kanja Waite Applicant and Esther Mumbi Mukindu Defendant Ruling 1.The Applicant filed an application dated October 1, 2025, seeking the following orders:a.Spent.b.Spent.c.That pending the hearing and termination of the suit, the Defendant/Respondent, its agents, servants, and/or employees be restrained from entering, trespassing, and/or interfering with the Plaintiff and/or the deceased (Simon Waite Mukundi) heir's enjoyment of Title No. Thegenge/Karia/5274 (formerly Plot No. 22 Kiamwathi Market).d.That costs be provided for. 2.The Application is supported by the Applicant's affidavit, in which he deposed that he is one of the administrators of the late Simon Waite Mukundi (Deceased), along with his elderly mother, Christina Wachugu Waite. 3.Prior to the registration of the suit property, titled No. Thegenge/Karia/5274, on January 8, 2019, in the name of the defendant, the parcel of land was known as Plot No. 22, Kiamwathi Market, and was under the County Council of Nyeri. 4.That in the year 1991, the transfer fee for Plot No. 22, Kiamwathi Market, was paid by the then owner to Simon Waite Mukundi (Deceased), and that the transfer had been approved by the then Nyeri County Council. 5.Since 1991, the Applicant deposes that his late father, Simon Waite Mukundi, took possession of the Suit Plot, and to date, the family remains in possession of the property. When the succession proceedings for the late Simon Waite Mukundi were instituted, the Plot was included among the properties. 6.Further, in 2024, the County Government of Nyeri approved the registration of the suit property’s lease under Simon Waite Mukundi, and to date, the County Government records have not changed. 7.During July and August 2025, some persons who were strangers to the Applicant claimed the suit property was theirs and attempted to invade it. This act was resisted, and the matter was reported to the Police at Ruringu Police Station. 8.Upon conducting an inquiry at the Land Office, he verified that Plot No. 22 Kiamwathi was issued a title deed in favor of the defendant, with the transaction occurring on 8th January 2019. 9.The Applicant believes that this registration was fraudulent if not made in error, as the County Government of Nyeri records reflected the owner, and the person(s) in occupation were the family of Simon Waite Mukundi. 10.The Applicant pleads that, to prevent acts of violence, intimidation, etc., it is only fair that the status quo be maintained until the hearing on the determination of the suit. The Defendant/Respondent’s Replying Affidavit 11.The Defendant/Respondent submitted a Replying Affidavit opposing the current application on October 23, 2025, affirming that she is the registered proprietor of the parcel of land known as Thegenge/Karia/5274. 12.According to the Respondent, on or about August 30, 2007, plot number 97-Kiamwathi, an informal settlement scheme (Nyeri Municipality), was allotted to her deceased husband, James Mukindu Imaria, and they have taken actual possession and occupation of the plot to date. 13.Following the allocation of the aforementioned plot to her husband on September 12, 2007, he remitted an allotment fee of Ksh. 500, as mandated. Subsequently, he learned that the costs associated with the plot totaled Ksh. 7,500, and that it had been subdivided, which he settled on February 1, 2008. 14.In 2010, her husband, James Mukindu Imaria, died, and as his surviving spouse, she became the rightful owner of Plot 97 in Kiamwathi Village. After his death, she attempted to take possession of the land, but the applicant herein denied her possession. 15.On or about December 20, 2018, she submitted a complaint to the Kenya Informal Settlements Improvement Project (KISIP) requesting intervention regarding the applicant's challenges to her ownership of plot 97 in Kiamwathi village. She accompanied the complaint with documents establishing ownership. Ultimately, the Kenya Informal Settlements Improvement Project (KISIP) determined that the Respondent was the lawful owner of plot 97 in Kiamwathi village. 16.After the relevant authorities had resolved the dispute, she was issued with a Title Deed for Thegenge/Karia/5274, formerly plot 97 Kiamwathi village, in 2019. 17.On 4th January 2023, the Respondent and her children fenced the land, and while doing so, some police officers came to the land where they claimed the plaintiff had made a report that they were trespassing on his land. 18.On or about September 1, 2017, her son, Patrick Koigi Mukindu, wrote to the Director of Lands, Housing & Physical Planning, seeking intervention because the applicant herein had encroached on her land and denied her access. After her children produced all ownership documents, they continued to fence her plot. 19.However, in 2024, the Applicant herein cut down trees she had planted during her late husband's lifetime and also sold napier grass she had cultivated, all without her consent. Furthermore, on 14th August 2025, they were dismayed to discover that the fence her children had built had been demolished and the fencing poles stolen. The incident was officially reported to the police under OB No. 05/14/08/25, and an inquiry was mandated to be conducted within 21 days, given that the matter pertains to a land dispute. 20.However, before the inquiry could be concluded, the applicant herein filed this suit seeking to restrain trespassing on plot 22 at Kiamwathi Market. 21.On September 24, 2025, after reviewing her documents regarding ownership of the land, the DCIO officers declared that the Respondent is the legal owner and that the applicant herein should keep off our land. 22.The Respondent asserts that she is in occupation and possession of plot 97 in Kiamwathi Village, a distinct parcel of land from plot 22 in Kiamwathi Market, which she has never occupied. 23.Thus, she contends that the orders sought by the applicant cannot be granted because the parcel of land the applicant refers to, Plot 22, is not the same as Plot No. 97, now Thegenge/Karia/5274, registered in her name. The Applicant’s further affidavit 24.The Applicant filed a further affidavit in response to the Respondent’s reply affidavit. He deposed that it is false for the Respondent to allege that her deceased husband took possession and occupation of the suit property on August 30, 2008, and, at the same time, to purport that in 2010 the Respondent tried to take possession and that he refused her. 25.He denied that either the Applicant or her husband had ever been in possession or occupation of the suit property. He averred that if, in 2010, the Applicant had tried to occupy the Plot and been denied, nothing would have prevented her from lodging a complaint about the same. 26.That Plot No. 22 Kiamwathi is a commercial plot and borders parcel Nos. 5276 and 5275, and he avers that the Respondent’s allegation that Plot No. 97 and Plot No. 22 are two distinct entities is misleading. 27.The Applicant further denies that the Applicant or her children have fenced the suit Plot and that the blurred images annexed to the purported fence's replying affidavit are misleading. 28.In response to the allegation that he brought the Respondent’s trees down, the Applicant deposed that in 2024, the road was tarmacked, and he was directed by the relevant authorities to cut down trees encroaching onto the road, which he did, and to fence the portion with barbed wire. 29.In August 2025, he deposed that he did not destroy the Respondent's fence because she had none. The Respondent's children attempted to force entry onto the property, and upon his refusal, they reported the matter to the police. 30.The Applicant deposed that the investigations are still ongoing, but from 2002 to date, his late father's family has been in possession of the Plot. The Applicant’s written submissions 31.Counsel for the Applicant submitted that it cannot be disputed that the person in possession was initially the Applicant's father (deceased), who took possession in 1991. After his death, the Applicant and his family remained in possession. To date, the Applicant and his family remain in possession. This is why, as late as August 2025, the Respondent/children/agents reported the matter to the police when the Applicant refused to permit them to enter the land forcibly. It is submitted that the Applicant has a prima facie case for this reason. 32.The Applicant added that there is no reason the Respondent cannot await the judgment of the main suit to determine who is the lawful owner of Plot No. 22 or Plot No. 97 Kiamwathi, and that the balance of convenience tilts in favor of the Applicant. 33.The Applicant’s submission is that if the Respondent were allowed to take the parcel of land before the suit is determined, and the Court ultimately finds in favor of the Applicant/Plaintiff, the Applicant would suffer irreparable injury. The Applicant prays that the Court exercise its discretion in the Applicant’s favor, pending the outcome of the suit. The Respondent’s written submissions 34.The counsel for the Respondent refuted the applicant’s assertion that land parcel number L.R No. Thegenge /Karia/5274 was previously designated as Plot Number 22 at Kiamwathi Market. It was clarified that the land in question was historically known as Plot Number 97 in Kiamwathi Village and was allocated to Mr. James Makindu Imaria on 30th August 2007 by the Government through the Department of Lands. 35.The respondent submits that she has never, at any time, made any claim to Plot Number 22 at Kiamwathi Market, as it does not belong to her. Rather, it is the applicant herein who has prevented her from fencing her land, thereby preventing her from developing it. 36.That the Applicant’s claims that the land plot 97 Kiamwathi Village, now land parcel LR Thegenge /Kiria/5274, was formerly plot No. 22 Kiamwathi Market are without any supporting evidence, and that the Applicant now seeks only the help of this Honorable Court to perpetuate his illegal encroachment on the respondent's land. 37.It was highlighted that the respondent reported this issue to the Kenya Informal Settlement Improvement Project on 20th December 2018, and all parties were instructed to bring documents in support of ownership of land plot 97. Upon hearing the parties and reviewing the supporting documents, the said authority concluded that the respondent herein is the legal owner of Plot Number 97, now known as Thegenge/Karia/5274. 38.That seven (7) years later, the applicant herein did not lodge any appeal against the said decision and only rushed to court to challenge the said ownership after the respondent attempted to fence off her land to enable her to begin developing it. 39.That when the Applicant destroyed the fence, the same was reported at Kiamwathi police post vide OB No 05/14/05/2025. The DCI Nyeri investigated the said incident. It was found that the respondent was the legitimate owner of the parcel of land, and the DCI advised any aggrieved party to go to court. It is then that the plaintiff/applicant herein filed the present application since all illegal attempts to take the respondent's land had failed. 40.Further, it is submitted that the applicant has not adduced any documents in support of the claim that plot 97 Kiamwathi Village was ever owned by his father. The County Government of Nyeri has always owned the said land and allotted it to persons who had been living in the colonial villages after applying for allotment. 41.In conclusion, the respondent prays that she be permitted to continue using her land until this Honorable Court makes a finding on the ownership issue. Analysis and Determination. 42.The application herein seeks an injunction against the Defendant/Respondent herein from entering onto the suit land known as LR. Thegenge/Karia/5274. However, both parties herein lay claim to the same suit parcel, with the Applicant herein claiming that it was initially known as Plot No. 22 Kiamwathi Market, allotted to his late father, Simon Waite Mukundi (Deceased). In contrast, the Respondent herein, on the other hand, claims that it was earlier known as Plot No. 97, Kiamwathi Village Informal Settlement Scheme (Nyeri Municipality), allotted to her deceased husband, James Mukindu Imaria. 43.Section 63 of the Civil Procedure Act provides for the court's power to grant temporary injunctions and states that:“In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold.” 44.Order 40, Rule 1 of the Civil Procedure Rules sets out the circumstances in which temporary injunctions may be granted and provides as follows:“Where in any suit it is proved by affidavit or otherwise—that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or……..the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 45.Further, the conditions for considering the grant of an injunction are now well settled in the case of Giella v Cassman Brown & Company Limited (1973) E. A 358, where the court set out the conditions a party must satisfy for the court to grant an interlocutory injunction: -“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.” 46.The Court of Appeal in Mrao Ltd v First American Bank Of Kenya Limited And 2 Others [2003] eKLR, cited by the Applicant, explained that a prima facie case is one described as follows in the case.“A case in 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 to call for an explanation or rebuttal from the latter.” 47.Similarly, in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal stated:“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation.” 48.In analyzing the documents presented by the parties herein to determine who has the prima facie right to the suit title, the Applicant has annexed a Report of the sub-committee of town planning and markets, which visited the plots intended for transfer from 29th July 1991 to 5th August 1991 and recommended that Plot No. 22 Kimawathi Market be transferred from Paul Mbai Wachira to Simon Waiti Mukundi, along with a letter from the now-defunct Nyeri Municipal Council dated 26th August 2002 confirming the transfer. However, there is nothing in the annexed documents indicating that Plot No. 22, Kimawathi Market, is known as LR. Thegenge/Karia/5274. 49.On the other hand, the Respondent has produced a title deed to suit title, which indicates that she is the registered owner. The Land Registration Act Cap 300 provides at Section 26 that:“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 50.Thus, under the law, the Defendant/Respondent has a prima facie right to the suit property unless it is proven that it was acquired through fraud or misrepresentation, or illegally, unprocedurally, or through a corrupt scheme, which can only be done at the full hearing and determination of this suit and not at this preliminary stage. 51.Regarding the second limb for the grant of an injunction, that the Applicant must show that they will suffer irreparable harm that damages cannot compensate, I am of the view that the Applicant has failed to establish the type of irreparable harm they are likely to suffer if the injunction is not granted. 52.In Nguruman Limited v Jan Bonde Nielson [Supra], it was observed that:“The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 53.Therefore, my opinion is that the balance of convenience does not lie in the Applicant’s favor. 54.On whether to issue status quo orders. The court observed in Thugi River Estate Limited & another v National Bank of Kenya Limited & 3 others [2015] eKLR that a status quo order must be specific and clear to the parties. The court observed as follows:“Status quo” in this respect, as maintained by an injunctive or conservatory or stay order, is the then existing state of affairs. Often the order is very specific and descriptive in such instances and parties are expected, nay bound, to observe the order. The order will often be issued after a balance of all the factors and circumstances. As was stated by Lord Diplock in American Cynanid Co.–v- Ethicon [1975] 1 All ER 504 at 511 “where factors appear to be evenly balanced, it is a counsel of prudence to take such measures as are calculated to preserve the status quo.......” The second or alternative order for status quo is the one issued by the court as a case management strategy. It is issued to provide assistance to the case. It also maintains a particular state of affairs or set of facts 55.In this matter, as stated, the respondent remains the registered owner of the suit property, who is in occupation – it is not clear whether it is an issue for trial. 56.Consequently, the applicant's October 1, 2026, motion lacks merit and is dismissed with costs. DATED, SIGNED, AND ELECTRONICALLY DELIVERED IN NYERI ON THE 10TH DAY OF JUNE, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Kiminda for the ApplicantMs. Ndiangui for the RespondentDennis: Court Assistant