https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3602

Kamau & another v Chege & 3 others (Environment and Land Case E119 of 2026) [2026] KEELC 3602 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEELC 3602 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E119 of 2026 TW Murigi, J June 5, 2026 Between Michael Waweru Kamau 1st Plaintiff Alice Ngendo Waweru 2nd Plaintiff and Mary Chege 1st Defendant Erick Waweru 2nd Defendant Harron Mwangi 3rd Defendant Dennis Nderitu 4th Defendant Ruling 1.By a Notice of Motion dated 27th March 2026, brought under Sections 1A, 1B, 3, and 3A of the Civil Procedure Act, Order 40 Rules 1, 2, 3, and 4 of the Civil Procedure Rules, Sections 13 and 14 of the Environment and Land Court Act, and Article 40 of the Constitution, the Plaintiffs/Applicants seek the following orders:i.Spent.ii.Spent.iii.That a temporary injunction be issued restraining the Respondents from further trespassing on the suit property pending the determination of the main suit.iv.That the OCS of the Ruai Police Station do provide security to ensure compliance with these orders. 2.The application is based on the grounds appearing on its face together with the supporting affidavit of Michael Waweru Kamau, the 1st Plaintiff, sworn on even date. The Applicant’s Case 3.The deponent averred that the Plaintiffs are the registered proprietors of land parcel Nairobi/Block 126/544, the suit property herein. He deposed that they hold a leasehold interest for a term of 99 years commencing from 1st January 1993, with the title officially registered and a Certificate of Lease issued on 19th August 2025. 4.He further averred that the suit property originated from a subdivision scheme related to L.R No. 88/5, as confirmed by the Commissioner of Lands in a letter dated 27th April 2010. He asserted that the property was originally leased from the Government of Kenya to Ngundu Farmers Co-operative Society Limited, from whom they derived their interest. 5.He averred that on 16th December 2025, during a routine inspection of the suit property, he discovered that the Defendants had, without any colour of right or their consent, forcibly entered the suit property and commenced unlawful activities, including fencing, construction, and excavation. He argued that the Defendants are in the process of constructing permanent structures without the necessary approvals, which directly contravenes the Special Conditions of the Lease, which require prior written approval from the Commissioner of Lands and the relevant Local Authority before any building works may be undertaken. 6.The deponent asserts that the Defendants' trespass is a blatant violation of their property rights recognised for over sixteen years by both the Ministry of Lands and the Ministry of Co-operative Development. He stated that they have continued to fulfil their obligations as lessees, including paying annual rent. He asserts that unless the court intervenes, the Plaintiffs will suffer irreparable harm and the suit property risks being irreparably wasted or alienated. 7.Though duly served, the Defendants neither entered an appearance nor filed any response to the application. Analysis And Determination 8.Having considered the application and the supporting affidavit, the only issue that arises for determination is whether the Applicants have met the threshold for the grant of a temporary injunction. 9.The law governing applications for injunctions is outlined in Order 40 Rule 1 of the Civil Procedure Rules, 2010, which provides as follows:“Where in any suit it is proved by affidavit or otherwise–(a)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(b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the if any decree that may be passed against the defendant in the suit,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.” 10.The principles for granting an injunction were established in the celebrated case of Giella vs Cassman Brown & Co. Ltd. 1973 EA 358 as follows:a)Firstly, the Applicant must show a prima facie case with a probability of success.b)Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages.c)Thirdly, if the court is in doubt, it will decide an application on a balance of convenience. 11.The first issue for determination is whether the Applicants have established a prima facie case with a probability of success. In Mrao Ltd v First American Bank of Kenya and 2 others, (2003) KLR 125, the Court of Appeal defined a prima facie case 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 there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter” 12.The Applicants' claim of ownership is based on a copy of the lease issued to Ngundu Farmers Co-operative Society Limited, a transfer of the lease in favour of the Plaintiffs dated 26th August 2009, a Certificate of Ownership issued by Ngundu Cooperative Society Limited for Plot No. 446, correspondence from the Liquidator of the Cooperative Society to the Commissioner for Lands dated 11th August 2009 requesting the preparation of the Allotment Letter in the Plaintiff’s favour, photographs showing ongoing construction on the suit property, and bank cheques and receipts evidencing payment of taxes for the transfer of the suit property. 13.Based on the material presented before me, I find that the Applicants have established a prima facie case with a likelihood of success. 14.On the second limb, the Applicants must demonstrate that they will suffer irreparable harm that cannot be adequately compensated by an award of damages. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal held that:“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be remedied by damages in the absence of an injunction, is a threshold requirement, and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. 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 its 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 an adequate remedy.” 15.The Applicants produced photographs to demonstrate that the Defendants have begun fencing, construction and excavation activities on the suit property. Such continued interference with the suit property, if left unchecked, would permanently alter its character and utility in a manner that cannot be reversed or adequately remedied by damages. This Court is satisfied that the Applicants have established the likelihood of suffering irreparable harm if an injunction is not granted. 16.On the third limb, the Court must weigh the hardship to be borne by the Applicants by refusing the injunction against the hardship to be borne by the Respondents if it is granted. Based on the evidence presented by the Applicants, I find that the balance of convenience favours granting an injunction pending the hearing and determination of this suit. 17.In the end, I find that the Applicants have met the threshold for the grant of an injunction. The upshot of the foregoing is that the application dated 27th March 2025 is merited and is hereby allowed in the following terms:i.A temporary injunction is hereby issued restraining the Defendants, their agents, servants, employees, and all persons claiming under them from further trespassing on, constructing, or in any manner interfering with land parcel Nairobi/Block 126/544, being the suit property, pending the hearing and determination of the main suit.ii.The Officer Commanding Station (OCS) at Ruai Police Station is hereby directed to provide security to ensure compliance with these orders. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 5TH DAY OF JUNE, 2026.…………………………………….HON. T. MURIGIJUDGEIn The Presence Of:Mulula for the Plaintiffs/ApplicantsAhmed – Court assistant