https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/114

Kilile v Makau (Environment and Land Case E001 of 2025) [2026] KEMC 114 (KLR) (5 May 2026) (Ruling) Neutral citation: [2026] KEMC 114 (KLR) Republic of Kenya In the Makindu Law Courts Environment and Land Case E001 of 2025 YA Shikanda, SPM May 5, 2026 Between Januaris Kilile Plaintiff and Josephat Makau Defendant Ruling The Application 1.The application before me is dated 14/10/2025 and was filed on 15/10/2025. It was filed by the plaintiff who seeks the following main orders, other prayers having been spent:1.That an order of Permanent Injunction restraining the Defendant, by himself, his agents and or servants from disposing, alienating, sub-diving, leasing out, selling, transferring or in any manner howsoever from dealing with all that parcel of land known as Plot Number 181B under reference number M.A.T.C 13/10/B (181B) whose size is 20ft to 100ft pending the hearing and determination of this suit;2.That the costs of and incidentals to this Notice of Motion be borne by the Defendant/Respondent. 2.Prayer number 5 was a duplication of prayer number 4. The application is supported by an affidavit sworn by the Plaintiff and is premised on the following grounds:a.The Plaintiff/Applicant and the Defendant/Respondent are co-joined vide a valid and still existing Sale Agreement entered into in terms of Section 3 of the Law of Contract;b.The Plaintiff/Applicant has an absolute purchaser’s interest on land parcel number known as Plot Number 181B under reference number M.A.T.C 13/10/B (181B) whose size is 20ft to 100ft hence protected under section 25(1) of the Land Registration Act 2012; and Article 40 of the Constitution;c.The defendant has intimated and threatened to resale from a binding Sale Agreement between him and the Defendant over parcel of land during the subsistence of the said Agreement and knowing quite well that the completion period is not yet over;d.The law of contract does not simply empower a party to a contract to rescind a valid contract at will;e.The Plaintiff/Applicant has a good case with extreme high chances of success and that unless an Order of Injunction is granted, the Defendant /Respondent shall definitely resile from the contract, dispose of the very same parcel of land to a third party thereby jeopardizing the Plaintiff’s position and compromising the Plaintiff’s/ Applicant’s interest. 3.In the affidavit in support of the application, the Plaintiff reiterated the grounds on the face of the application and annexed copies of documents in support of the application. The plaintiff deposed that he bought the suit parcel of land from the defendant at a consideration of Ksh. 1,500,000/= and paid Ksh. 100,000/= as the initial deposit. That the defendant declined to collect a cheque for part of the balance and purported to unilaterally cancel the sale then proceeded to sell the suit land to a third party. The plaintiff further deposed that their agreement with the defendant remains valid and that he is willing to complete the purchase price. That unless the defendant is restrained, the plaintiff will suffer irreparable loss and damage as he has paid a substantial amount of money. The Defendant’s Response 4.The Defendant opposed the application by filing a Replying affidavit sworn by himself. He deposed that he was the owner of the suit parcel of land but denied having entered into a sale of land agreement with the plaintiff over the same. That there was an intention to enter into a sale of land agreement but the same did not materialize. The defendant stated that he was ready and willing to refund the Ksh. 100,000/= that was advanced to him by the plaintiff. The plaintiff further deposed that the application was meant to coerce him into selling his land to the plaintiff. The defendant deposed that the plaintiff has caused him untold torture and suffering by causing him to be arrested and charged. That there is no law that mandates parties to enter into agreements against their wishes. Main Issues for Determination 5.In my view, the main issues for determination are:a.Whether the plaintiff is entitled to orders of injunction as against the defendant as prayed for in the application;b.Who should bear costs of the application? Submissions by the Plaintiff/Applicant 6.The plaintiff reiterated the contents of his affidavits and submitted that although section 3(3) of the Law of Contract Act requires contracts for disposition of interests in land to be in writing, Kenyan courts have consistently held that equity will intervene to prevent injustice where a party has performed obligations under an agreement and relied thereon to their detriment, giving rise to equitable interests such as constructive trust or proprietary estoppel. That Equity, as a principle of justice, is elevated under Article 10(2) (b) of the Constitution and must guide the exercise of judicial authority. The plaintiff argued that once a party has performed his obligations and the other has accepted consideration but seeks to renege, equity intervenes to protect the performing party’s interest. 7.The plaintiff contended that he had demonstrated a prima facie case grounded in equity, justifying the injunctive relief sought. On irreparable loss, the plaintiff submitted that unless restrained, the defendant will dispossess, alienate, or otherwise deal with the suit property in a manner that defeats the plaintiff’s equitable interest as the defendant is in the process of selling the same property to third parties. Once the property is dealt with, particularly if transferred to third parties, the plaintiff’s claim will be irretrievably compromised, and damages will not provide adequate redress. The plaintiff argued that the balance of convenience tilts in favour of preserving the status quo pending hearing and determination of the suit. That granting the injunction will cause minimal prejudice to the defendant, whereas refusal risks irreversible loss to the plaintiff. The plaintiff urged the court to allow the application. He relied on a number of authorities but did not annex copies thereof. Submissions on Behalf of the Defendant 8.The defendant also filed written submissions. The defendant submitted that the applicant seeks far-reaching injunctive and equitable orders founded on a non-existent contract, bare allegations and a deliberate misrepresentation of facts. That the application is not only legally unsustainable but is also a textbook example of an abuse of the court process deployed as a coercive tool to force the Respondent into a transaction he never agreed to and which the law expressly forbids. The defendant submitted that whereas he had a discussion with the plaintiff regarding the sale of land, the discussions never crystallized into a binding agreement. That no terms were agreed upon with finality, no completion timelines were set and no completion documents were ever prepared or exchanged. 9.The defendant further submitted that at no time was any agreement for sale negotiated, reduced into writing, executed, or attested by the parties as required by law. That the applicant has not produced, and indeed cannot produce, any written agreement signed by the parties evidencing a contract for the disposition of an interest in land. The defendant admitted having received Ksh. 100,000/= but submitted that the said sum of money did not constitute a deposit in law, noting that the alleged deposit was neither agreed upon nor paid upon signing of a binding agreement for sale as it is the norm. 10.The defendant relied on section 3(3) of the Law of Contract Act and contended that the suit is unsustainable in the absence of any agreement or document in compliance with the provision. That the applicant’s case is therefore built entirely on oral discussions and unilateral assumptions, which the law expressly excludes. The defendant argued that a court of law cannot convert negotiations into a contract by sympathy, conjecture or force of equity. That to do so would be to rewrite the parties’ intentions and undermine statutory safeguards designed to prevent fraud in land transactions. It was submitted by the defendant that in the absence of a written, executed, and attested agreement, the applicant has no proprietary interest in the suit property, has no equitable interest capable of protection and has no enforceable contractual right whatsoever. That to restrain a registered owner from dealing with his land on the basis of a fictional contract would be to elevate speculation above law. 11.The defendant submitted that the applicant has failed to demonstrate any irreparable harm. That the only identifiable loss alleged is Kshs. 100,000/=, which is purely monetary, has been expressly acknowledged by the respondent and has been offered for immediate refund without condition. According to the defendant, loss that is quantifiable and refundable is, by definition, compensable by damages and cannot ground the grant of an injunction. The defendant contended that even assuming that the Court were in doubt, the balance of convenience tilts overwhelmingly in favour of the respondent, who is the lawful and registered owner of the suit property and is being unjustly restrained from exercising proprietary rights on the basis of misrepresentation. The defendant added that in any event, the application has been overtaken by events as the defendant has sold the suit land to third parties. The defendant urged the court to dismiss the application with costs. The defendant also relied on several authorities but did not bother to attach copies thereof. Analysis and Determination The Legal provisions 12.Section 1A of the Civil Procedure Act provides as follows:(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court". 13.Section 1B provides as thus:(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology". 14.Section 3A provides:Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court". 15.Order 40 rule 2 provides as follows:(1)In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right.(2)The court may by order grant such injunction on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court deems fit". 16.I have carefully considered the application together with the documents in support thereof as well as the response by the defendant. I have further considered submissions by the parties and directed my mind to the applicable law. In the case of Assand v Pettitt [1989] KLR 241, it was held that the object of a temporary injunction is to keep things in status quo so that if at the hearing the plaintiff obtains a judgment in his favour, the defendant will have been prevented from dealing in the meantime with the property in such a way as to make that judgment ineffectual. 17.The principles to be considered by the court when considering an application for a temporary injunction were laid down in the leading authority of Giella v Cassman Brown & Co. Ltd [1973] EA 358. The principles are that:i.The applicant must establish a prima facie case with a probability of success;ii.The applicant must show that he will suffer irreparable harm which cannot be adequately compensated by an award of damages;iii.If the court is in doubt, it should decide the application on the balance of convenience. 18.However, in considering such an application, the court should be careful not to decide substantive issues at the interlocutory stage. My view is fortified by the Court of Appeal's finding in the case of Shitakha v Mwamodo & 4 Others [1986] KLR 445. A similar view was held by the same court in the case of Mbuthia v Jimba Credit Finance Corporation & Another [1988] KLR 1 where the court held that the correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side's propositions. The court further held that where the disputed facts raised doubt in the court's mind as to which party would be proved right at the trial, the court would comfortably consider the balance of convenience. 19.The Court of Appeal in the case of Mureithi v City Council of Nairobi, Nairobi Civil Appeal No. 5 of 1979 (UR) held that the power to grant or deny an application for a temporary injunction is within the discretion of the court but such discretion must be exercised judiciously. It is a fundamental rule that the court will grant an injunction only to support a legal right. This position was buttressed in the English case of Montgomery v Montgomery [1964] 2 ALL ER 22. It has been held that the injunction sought must relate to the claim in the suit or rather the relief sought in the suit. The case of Winstone v Winstone [1953] 3 ALL ER 580 is germane on this point. In the said case, Winn J held as follows:In my view these words are to be construed and understood as limited to the granting of an injunction ancillary to and comprised within the scope of the substantive relief sought in the proceedings in which the application for injunction is made ". 20.A similar view was made in the case of McGibbon v McGibbon [1973] 2 ALL ER 836, where it was held that an injunction must bear some relationship to the cause of action. 21.From the above authorities, it is my considered view that while considering an application for a temporary injunction, the court must consider the plaint and the statement of defence alongside the affidavits in support of or in opposition to the application. The injunction must be based on the relief claimed by the plaintiff in the plaint. Numerous court decisions have held the position that an interlocutory injunction ought not to be granted if the prayers in the application are at variance with the suit. The leading case on this point appears to be the case of Dismas Oduor Owuor v Housing Finance Co. (K) Ltd & Another, HCCC No. 630 of 2001 where Ringera J (as he then was) held as follows:The plaintiff's interlocutory application of 7th June, 2001 is inconsistent with the prayers sought in the suit. Whereas in the suit he is seeking an injunction to restrain the sale of the charged property, in the application he is seeking to restrain the transfer of the said property to the auction purchaser and other consequential or subsequent dealings with the property. The plaintiff, in my opinion, cannot be granted interlocutory orders, which are at variance with the permanent orders sought. I think he goofed in not amending his plaint before amending the chamber summons. He could not be allowed to injunct a transfer by the chargee to the auction purchaser without amending his plaint to challenge the auction sale complained of..." 22.I have perused the plaint and find that the prayers sought have a bearing on the application. The Supreme Court of India in the case of State of Orissa v Madan Gopal Rungta [1952] AIR 12, 1952 SCR 28 held that it was a well stated principle of law that an interim relief can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his rights in a suit or any other proceeding. The foundation of an interlocutory application such as the instant one is the plaint. I have considered the averments made by both parties. 23.It is not in dispute that the defendant received Ksh. 100,000/= from the plaintiff. What is in dispute is the purpose of the sum of money. Has the plaintiff established a prima facie case with a probability of success? My answer would be in the negative. I say so because from the pleadings and the application as well as the affidavits in support thereof, it is clear that there was no formal agreement for sale of land between the parties. Without an agreement, the terms and conditions thereof cannot be known. No wonder the plaintiff did not disclose the exact date of the agreement. There is nothing to show, at the prima facie level, that there existed a contractual relationship between the parties. 24.The plaintiff has strongly submitted and urged the court to invoke the principles of equity. In my view, equity does not operate in a vacuum. It always needs a legal foundation or context. In the tradition of Common Law, equity developed to supplement, and not to replace the law. Courts of equity intervene where strict legal rules would produce unfair results, but they do not act randomly or without structure. For equity to operate, there must be a legal or factual foundation and a recognized equitable principle that justifies intervention. The court cannot just invoke the principles of equity to cure a substantive legal deficiency. In the circumstances of this case, it would not be easy to state at this stage that the plaintiff has a prima facie case with a probability of success. I do not see any edge that the plaintiff has over the defendant, unless evidence is taken herein. There is room for an argument that the defendant could have an edge over the plaintiff by virtue of being the owner of the property and in the absence of a written sale agreement. 25.What of irreparable loss? The plaintiff has made a frail attempt, and struggled at it, to explain the issue of irreparable loss or damage. The plaintiff has not explained how he is likely to suffer irreparable loss if the orders sought are not granted. He claimed that the likely loss cannot be compensated by way of damages. The plaintiff paid Ksh. 100,000/= only. His loss is quantifiable and the defendant has made it clear that he is willing to refund the money immediately. The plaintiff has not, at this stage, established any recognizable and enforceable proprietary interest in the land. There is no indication that he ever took possession of the same. Which is this irreparable loss or damage is he likely to suffer? Whatever loss that the plaintiff is likely to suffer if the application is refused can be remedied in monetary terms. I find that the plaintiff has failed to satisfy the second condition. 26.The plaintiff having failed to satisfy the two conditions for the grant of a temporary injunction, it would be unnecessary to consider the balance of convenience. However, for academic sake, I would also find that the balance of convenience does not tilt in favour of the plaintiff. The plaintiff’s position is fluid. He is not even in occupation of the suit land. I agree with the defendant that if the orders are granted as prayed for by the plaintiff, it is the defendant who is likely to suffer loss and damage, since he will have been prevented from occupying and utilizing a parcel of land that belongs to him. This is not the kind of application in which stories would suffice. Without evidence, there is no prima facie case. In the authority of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, the Court of Appeal observed:It must also be remembered that it is a serious thing to restrain a registered proprietor of a property over what is undeniably his unless there are justifiable grounds to do so…………….In conclusion, we stress that it must always be borne in mind that the very foundation of the jurisdiction to issue orders of injunction vests in the probability of irreparable injury, the inadequacy of pecuniary compensation and the prevention of the multiplicity of suits and where facts are not shown to bring the case within these conditions the relief of injunction is not available”. 27.Incidentally, the plaintiff relied on this authority, not realizing that it worked against him. 28.Furthermore, the plaintiff himself indicated and the defendant confirmed, that the suit land has already been sold to a third party or parties. The plaintiff went to the extent of naming them in his further affidavit but did not join them to the suit. It would improper for the court to make orders that would be detrimental to third parties without their participation in the proceedings. They would have been condemned unheard, contrary to the principles of natural justice. I do not wish to delve further, lest I prejudice the case for either party. However, I find that the plaintiff has failed to satisfy the threshold to warrant granting of the orders sought. This is not a case where the court will consider preserving the subject matter in the manner proposed by the plaintiff. Disposition 29.In view of the foregoing, I find that the application dated 14/10/2025 is devoid of merit. For the reasons given hereinabove, it is my opinion that the plaintiff has failed to meet the threshold of granting a temporary injunction. Consequently, I proceed to dismiss the application. The plaintiff shall bear the costs of the application. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 5TH DAY OF MAY, 2026.Y.A. SHIKANDASENIOR PRINCIPAL MAGISTRATE.