Ashiundu v Sunshine Courts Limited & 2 others (Land Case E027 of 2026) [2026] KEELC 3041 (KLR) (21 May 2026) (Ruling)

Ashiundu v Sunshine Courts Limited & 2 others (Land Case E027 of 2026) [2026] KEELC 3041 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3041 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E027 of 2026 CA Ochieng, J May 21, 2026 Between John Akonya Ashiundu Plaintiff and Sunshine Courts Limited 1st Defendant Wall To Wall Company Limited 2nd Defendant and Chief Land Registrar Interested Party Ruling 1.What is before the Court for determination is the Plaintiff’s Notice of Motion application dated 23rd January 2026 where he seeks the following Orders:a.Spent.b.Spent.c.That pending the hearing and determination of this suit, this Honourable court be pleased to issue an order of temporary injunction restraining the 1st and 2nd Respondents/ Defendants whether by themselves, agents, servants, employees, assigns, cronies, or any other person claiming through them from accessing, selling, charging, entering upon, threatening to enter, laying to claim to, dealing with, interfering with and /or in any manner whatsoever disturbing the Applicant/ Plaintiffs quiet possession, use, occupation and enjoyment of the suit property.d.That costs of the application be provided for. 2.The application is premised on grounds on its face and on the Plaintiff’s supporting affidavit. He avers that he is the registered proprietor of LR No. 209/11326 situated at Loresho, Nairobi, held on leasehold tenure from 1st June 1990, acquired through a Sale Agreement dated 22nd December 1997 and a Transfer registered on 14th April 1998 from Darius Msaga Mbela. Further, that he is in possession of the original title and in occupation and actual control of the suit property. 3.He claims that he has learnt that the 1st and 2nd Defendants acting jointly and/or severally, caused a subdivision of the suit property which allegedly created fraudulent titles namely LR No. 209/11326/1 in the name of the 1st Defendant and LR No. 209/11326/2 allegedly in the name of the 2nd Defendant. He points out that he has never surrendered his original title, never applied for subdivision and never consented to, or authorized any dealings. 4.He asserts that upon discovery of the fraudulent activity, he lodged a complaint with the Director of Surveys who directed the Director of Land Administration to investigate Deed Plans 344833 and 344834 which were found to be irregular thus their revocation was recommended. He claims that through letters dated 16th October 2024 and 31st October 2024, his advocates notified the Interested Party of the fraudulent subdivision and the aforementioned findings but no action has been taken thus the fraudulent titles remain on record and the 1st and 2nd Defendants have relied on them to trespass on the suit property thereby infringing on his right to property under Article 40 of the Constitution. He reiterates that unless the Court restrains them, they may unlawfully deal with the suit property exposing him to irreparable loss and damage. Responses 5.The application is opposed by the 1st Defendant vide the replying affidavit of its director, one Piyush Ratil Shah. He avers that Darius Msaga Mbela (deceased) was allocated LR No. 209/11326 in the year 1990 and in 1991, he caused it to be subdivided into two plots, LR No. 209/11326/1 and 209/11326/2, thus the original parcel number is closed and ceased to exist seven (7) years before the Plaintiff allegedly purported to purchase it, from the deceased. He contends that the Plaintiff’s alleged Sale Agreement points to clear fraud as there is no proof of payment of purchase price or stamp duty or payment of land rates and rent from the time he claims to have taken possession Further, that in respect to LR No. 209/11326/1, the deceased was issued with a new certificate of title on 14th June 1991. 6.He claims that the 1st Defendant purchased LR No. 209/11326/1 from Darius Msaga Mbela (deceased) but he passed away before completion of the transaction thus his wife, Beatrice Mgoi Mbela upon obtaining a Grant of representation to his estate and with the consent of all beneficiaries agreed to complete the transaction vide a Sale Agreement dated 11th June 2o08 and the 1st Defendant thereafter took physical possession. 7.He states that however, on 1st April 2020, the Government of Kenya through the Ministry of Lands published a Gazette Notice No. 3460 revoking the said title on contention that the property together with LR No. Number 209/11326/2, had encroached on a riparian reserve. Further, that aggrieved, he wrote to the Permanent Secretary Ministry of Lands, requesting for a re-survey and undertaking to demolish any of the 1st Defendant’s structures that would be deemed to have encroached on the riparian reserve and to co-operate with the Ministry in any subsequent controlled development with a view to restoring the said title. He explains that in response, the Ministry of Lands directed the 1st Defendant to demolish the wall that had encroached on the riparian reserve and to re-survey the property to ensure that it is delineated to a minimum of 10 metres from the edge of the river, which the 1st Defendant did and a Deed Plan in that respect was approved. 8.He reiterates that the National Land Commission then gazetted a public hearing for review of the Grant in respect to the suit property and thereafter approved allocation to the 1st Defendant subject to his surrender of the revoked title and obtaining approval from National Environment and Management Authority (NEMA), indicating that a minimum of 10 metres riparian reserve had been delineated. He reaffirms that upon obtaining necessary approvals from NEMA, the National Land Commission then re-allocated to the 1st Defendant the suit property vide a Letter of Allotment dated 17th December 2021. He claims that the 1st Defendant has been in control of the suit property and annexed a letter approving renovations on the property from Nairobi City County Government. 9.He contends that the Director of Surveys had no authority to direct the revocation of titles and Leases issued to the 1st and 2nd Defendants, as it is a preserve of Courts. Further, that upon discovering that the Plaintiff was fraudulently claiming ownership, he reported the matter to the police and in a letter dated 12th February 2026, the Directorate of Criminal Investigations wrote to the Lands Department seeking confirmation of the authenticity of documents held by the Plaintiff and in correspondence dated 23rd February 2026, the Interested Party confirmed that LR 209/11326/1 solely belongs to the 1st Defendant and the documents held by the Plaintiff pertaining to LR 209/11326 were not authentic. Further, that the 1st Defendant’s title was converted to Title No. Nairobi Block 95/614. 10.The 2nd Defendant also filed a replying affidavit sworn by its director, Robert Ndungi Kamuti. He avers that the 2nd Defendant is the bona fide and registered owner of L.R No. 209/11326/2 vide purchase from one Darius Msaga Mbela (deceased) as per the agreement for sale between them dated 27th June 2007. Further, that the said Darius Msaga Mbela passed away before the sale and transfer of the suit property was completed thus his successor in title one Beatrice Mgoi Mbela took over the transaction and Supplementary Agreements dated 10th September 2007 and 22nd May 2008 were executed for the successful registration of the suit property. 11.He explains that vide a Gazette Notice dated 16th November 2007, following the loss of the Original Grant issued to Darius Msaga Mbela(deceased) by virtue of a Grant I.R Number 52847/1, a provisional Certificate of Title with respect to the property was issued. 12.His averments largely mirror those of the 1st Defendant, that the 2nd Defendant’s title to parcel, LR No. 209/11326/2, had been revoked on the basis of being on riparian land but it was later reinstated upon compliance with NEMA requirements and the Ministry of Lands. 13.In rejoinder to the responses filed by the Defendants, the Plaintiff filed a further affidavit in which he reiterates his averments as per his affidavit in support of the instant Notice of Motion and insists that there is no evidence of lawful subdivision of LR No. 209/11326. He insists that Beatrice Mgoi Mbela could not pass any proprietary interest to the Defendants prior to Confirmation of Grant in respect to the estate of her deceased husband, Darius Msaga Mbela and in any case, the property had already passed to him in 1998. Further, that the Defendants’ titles are not supported by a demonstratable root of title. 14.The application was canvassed by way of written submissions Submissions 15.The Plaintiff submits that he has established a prima facie case since he is the lawful proprietor of LR No. 209/11326 evidenced by the sale agreement between Darius Msaga Mbela(deceased) and himself and there is a transfer in that respect. Further, that he is in actual possession of the suit property, while the Defendants have unlawfully procured a subdivision creating two (2) titles and have trespassed on his property yet the root of their title cannot be demonstrated as required in the case of Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 KLR. 16.He also submits that the Defendant’s reliance on Darius Msaga Mbela’s (deceased) succession proceedings and supplementary agreements between the widow Beatrice Mgoi Mbela and themselves, offend section 45 of the Law of Succession Act, which prohibits interference with estates of deceased persons and contemplates that administrators’ are to await Confirmation of Grant thus their alleged transactions are void ab initio and incapable of conferring rights or interest. To this end, he relied on re estate of Yohana Anyika (deceased) [2019] eKLR. 17.The Plaintiff also submits that he stands to suffer irreparable harm if the injunction is not granted since land is unique and he had already commenced development works thereon prior to the encroachment by the Defendants whose actions will hinder his lawful utilization of the property. To this end, he relied on the case of Paul Gitonga Wanjau v Gaguthi Tea Factory Company Ltd & 2 others [2016] KEHC 7263 KLR. 18.He further submits that he stands to suffer greater prejudice if the injunction is refused since he is in possession of the suit property and will be exposed to continued trespass, interference and possible alienation, which will disrupt his quiet possession and irreversibly alter the suit property as well as complicate the substratum of the dispute while on the other hand, the Defendants will suffer no prejudice that cannot be compensated by damages. 19.On its part, the 1st Defendant submits that to establish a prima facie case, the Plaintiff had to demonstrate that he had a beneficial or registered interest in the suit property, that he was in possession and that the Defendants interfered with it. However, he could not do so as LR No. 209/11326, which he seeks to litigate upon does not exist and it did not exist at the time of his alleged purchase as it had long been closed upon subdivision. Further, that his documents of title have been confirmed not to be authentic by the Land Registrar. It further submits that the fact of subdivision has never been declared void by any Court thus the Defendants’ hold valid certificates of title thus they must be taken to be absolute and indefeasible owners unless the contrary is proved. 20.It also submits that there is no evidence supporting the Plaintiff’s possession, while the Defendants have produced evidence of payment of land rates and rent demonstrating that they have been in possession of the suit property. 21.On whether the Plaintiff stands to suffer irreparable loss, it is submitted that he has not demonstrated that there is any danger of alienation to warrant interference of the Defendants’ proprietorship by the Court and that even if he had demonstrated the same, such injury can be adequately compensated by damages as the value of the suit property is known. 22.On where the balance of convenience tilts, it urges the Court to opt for the lower risk and seek to maintain the status quo prevailing. To buttress its averments, the 1st Defendant relied on the following decisions: Muranga v Rumisitu Investment Company Limited & 2 others [2026] KEELC 430(KLR); Otieno v Onyango & 5 others (Civil Appeal E022 of 2024) [2025] KEELC 5085(KLR) and Paul Gitonga Wanjau v Gathuthi Tea Factor Company Ltd & 2 others [2016] eKLR. Analysis and Determination 23.I have considered the instant Notice of Motion application including the respective affidavits and rivalling submissions and the sole issue for determination is whether the Plaintiff has demonstrated the threshold for issuance of a temporary injunction restraining the Defendants from interfering with LR No. 209/11326, pending the outcome of this suit. 24.In line with the principles on injunctions as established in the case of Giella vs Cassman Brown & Company Ltd (1973) EA 358 including the definition of a prima facie case as stated in Mrao Ltd vs First American Bank Ltd (2003) KLR 125, I will proceed to determine whether the Plaintiff has demonstrated a prima facie case as against the Defendants to warrant the orders of temporary injunction as sought. 25.The Plaintiff claims that he is the registered proprietor of LR No. 209/11326, Nairobi, held on leasehold tenure from 1st June 1990, acquired through a Sale Agreement dated 22nd December 1997 and a Transfer registered on 14th April 1998 from Darius Msaga Mbela. He contends that the Defendants have trespassed on the said land and interfered with his possession. 26.On their part, the 1st and 2nd Defendants claim that LR No. 209/11326 does not exist and it did not exist at the time of the Plaintiff’s alleged purchase, as it had long been closed upon subdivision to create LR No. 209/11326/1 registered to the 1st Defendant and LR No. 209/11326/2 registered to the 2nd Defendant. They claimed to have purchased their respective parcels from the late Darius Msaga Mbela who passed away before both parties could complete their respective transactions thus his wife, Beatrice Mgoi facilitated completion by signing further documents with the consent of all beneficiaries. 27.The Plaintiff has termed the said transactions facilitated by Beatrice Mgoi as void ab initio on the basis that she had no capacity to enter into them. The Defendants contend that the two subdivisions had been gazetted as riparian land but they were re-allocated the said two plots, upon compliance with directions from the Ministry of Lands and NEMA. 28.Looking at the documents as presented by the respective parties, I note the Plaintiff still has the original Grant hence it is not clear at what point the said title was subdivided to create the 1st and 2nd Defendants’ title. The Defendants however insist that the Plaintiff’s title ceased to exist before Darius Mbela died. They contend that they also entered into fresh sale agreements with the widow of the deceased owner as she had acquired a Certificate of Confirmed Grant. Further, that the two subdivisions had been gazetted as riparian land but reallocated upon compliance with directions from Ministry of Lands and NEMA. The question we need to ponder is that if there was already a title in the name of a private person, how would the property be reallocated again without evidence of cancellation of the existing title. I note the Plaintiff presented a letter from Director of Surveys that indicated that the Deed Plans used by the 1st and 2nd Defendants to acquire their parcels of land were irregular. If indeed there was a reallocation, then why would the Director of Surveys declare the Deed Plans used to process the 1st and 2nd Defendants titles irregular. However, the Land Registrar who is the custodian of the titles on the other hand confirmed vide letter dated 23rd February 2026 that the 1st Defendant’s title was authentic. The Defendants on the other hand claim the Plaintiff’s land is not authentic. I note the 1st Defendant’s title is dated the 4th July, 2022 while the 2nd Defendant’s title is dated the 10th June, 2022. Further, they have also presented documents on how they acquired their respective titles and at this juncture, I opine that there is indeed need for viva voce evidence to enable the Court determine the real owner of the suit property. 29.However, from the facts before Court, noting that the Plaintiff still has in his possession the original Grant and there being no evidence of cancellation of the said title, surrendering of the original Grant as well as subdivisions, but from the various communication from the late original owner of the title indicating his title was lost, I am unable to hold that the Plaintiff has indeed established a prima facie case as against the Defendants who also have competing titles. 30.Since there are competing titles, noting that the 1st and 2nd Defendants have presented documents where the deceased vendor indicated that his title to the suit property was lost and there was a gazette Notice dated 16th November 2007 to that effect. At this juncture, I opine that it would be proper if the obtaining status quo was maintained to protect the substratum of the suit. 31.It is against the foregoing that I find the Plaintiff’s Notice of Motion application dated the 23rd January 2026 unmerited and will disallow it.I will proceed to make the following Orders:a.That pending the hearing and determination of this suit, the obtaining status quo be maintained where the party on the suit property to remain thereon, but not change the topography. Further, no party should dispose off their respective titles, pending outcome of this suit.b.Costs will be in the cause. DATED SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF MAY, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Ms Munguti for Baka for PlaintiffKhaemba for 1st DefendantKabuchio for 2nd DefendantCourt Assistant: Catherine