https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3851

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC CASE NO. E007 OF 2026** **JOSEPH MBUGUA KANG’ONG’A----------PLAINTIFF/APPLICANT** **VERSUS** **SARAH WAMAITHA ----------------1ST DEFENDANT/RESPONDENT** **LAND REGISTRAR** **TRANS NZOIA COUNTY---------2ND DEFENDANT/RESPONDENT** **RULING** 1. The plaintiff, by an application dated **4/2/2026**, seeks temporary orders of injunction barring and restraining the respondents, their agents or servants from selling, transferring, charging, leasing, subdividing, developing, or in any manner dealing or interfering with Title No. **Waitaluk/Mabonde Block 13/1**, pending hearing and determination of this suit. 2. The court is also asked to issue a restriction pursuant to **Section 76** of the Land Registration Act, over the title register of the suit land, and further to direct the alleged transfer instruments and signatures attributed to the applicant to be subject to forensic examination by a qualified document examiner, with the resultant report to be filed before the court. 3. The reasons are contained on the face of the application and in a supporting affidavit of Joseph Mbugua Kang’ong’a, sworn on **4/2/2026**. The applicant deposes that he is the registered owner of the suit land measuring approximately **0.809 Ha** as per the title copy annexed as annexure **JMK-(1),** which is absolutely owned, save for a caution lodged in the title register by a child of the first wife. 4. The applicant deposes that the 1st respondent is his second wife, whom he married after the first wife passed on, and that they have one child with her in addition to his children with the first wife. 5. The applicant deposes that around **2025**, the 1st respondent, without his knowledge, consent, or authority, fraudulently caused the suit land to be transferred and registered under her name, yet he never signed, executed, or authorised any such transfer, or signed any consent or gave a spousal acknowledgment or conveyance document relating to the same. 6. Further, the applicant deposes that without the foregoing and surrender of the original title deed, and the removal of a caution that had been existing on the title register, it was irregular to effect the transfers. The applicant deposes that after discovering the changes, he lodged a complaint with the 2nd respondent, who caused a restriction on the title register dated **4/8/2025**, attached as **JMK-(2).** 7. The applicant deposes that the 2nd respondent convened a meeting of his children and the 2nd respondent on **9/9/2025**, whereof both parties were ordered to surrender their respective title deeds pending investigation, but the 1st respondent refused and or neglected to do so. 8. The applicant deposes that on **3/12/2025**, he wrote a formal complaint, a copy attached hereto as **JMK-(3),** for the release of his title deed, which the 2nd respondent has refused to comply with or give an explanation. 9. Further, the applicant deposes that it is apparent that the 1st respondent acquired the title irregularly, fraudulently, and unprocedurally, with obvious collusion with the 2nd respondent, as land is valued at **Kshs. 24,000,000/=.** 10. The applicant deposes that unless there are interim orders, he stands to suffer irreparable loss and damage, and it is therefore in the interest of justice, equity, and fairness that the orders sought be granted. 11. The 1st respondent opposes the application through a replying affidavit sworn on **29/4/2026**. The 1st respondent deposes that the applicant gave her the land and that they followed legal means to obtain the title deed, under her name and the minor, who is their issue of marriage. 12. The 1st respondent deposes that they had agreed and sold part of the land as per the agreement dated **11/7/2024**, attached as annexure **SW-(1).** Again, the 1st respondent deposes that the title deed is now **6** years old, since the transfer on **11/3/2020,** without any complaint from the applicant. 13. The 1st respondent deposes that after selling part of the land, they equally shared the money, out of which she used her share to pay school fees for the minor. The 1st respondent deposes that the complaint arose in **February 2026**, out of pressure from the children of the first marriage; otherwise, the signatures in the supporting affidavit and the witness statement do not belong to the applicant. The 1st respondent deposes that the suit is premature in view of the pending complaint at the lands office. 14. In a supplementary affidavit sworn on **8/5/2026**, the applicant admits that he started cohabiting with the 1st respondent in **2005**. He denied handing over the original title deed to the 1st respondent, for purposes of transfer or conversion of the same to her name, or executing any such instrument of transfer, or being a joint vendor with her. 15. The applicant terms the alleged transaction as unlawful, irregular, and fraudulent. Again, the applicant deposes that he discovered the irregularities in **August 2025**, whereafter he immediately lodged a complaint with the 2nd respondent. 16. The plaintiff deposes that the land forms part of his family land with long-standing use and occupation, and that his family stands to suffer immensely if the property is sold, charged, or otherwise dwelt with, pending hearing and determination of this suit. 17. The applicant relies on written submissions dated **8/5/2026**. Reliance is placed on ***Giella -vs- Cassman Brown & Co. Ltd [1973] EA 358, Mrao Ltd -vs- First American Bank of (K) Ltd & Others [2003] KLR 125, Arthi Highway Developers Ltd -vs- West End Butchery Ltd & Others [2015] eKLR, Samuel Kamere -vs- Land Registrar Kajiado [2017] eKLR, Nguruman Ltd -vs- Jan Bonde Nielsen & Others [2014] eKLR, Pius Kipchirchir Kogo -vs- Frank Kimeli Tenai [2018] eKLR***, and ***Joseph N.K. Arap Ng’ok -vs- Moijo Ole Keiwua & Others [1997] eKLR***. 18. The applicant approached this court through a plaint dated **4/2/2026**. His contention being that on or about **4/8/2025**, his son discovered that the 1st respondent had fraudulently and illegally transferred and registered into her name, the title to the suit land without his knowledge, authority, or consent, as he held the original title deed, and even when there already existed a caution against the title register. 19. He terms the said registration of title in the name of the 1st respondent as fraudulent, illegal, and procured through misrepresentation and seeks its cancellation, nullification, and reversal, permanent injunction, and general damages. 20. Despite the service, the respondents have yet to file statements of defence. The court, based on the said plaint, is asked to issue temporary injunction orders. 21. A prima facie case refers to more than an arguable case. It must demonstrate a right that has been infringed by the opposite side to call for a rebuttal from the opposite side. See ***Mrao Ltd -vs- First American Bank of (K) Ltd*** *(supra).* 22. Irreparable loss or damage must be real, apparent, imminent, and substantial. Mere apprehension or fear or speculative loss or damage is not sufficient, as held in ***Nguruman Ltd -vs- Jan Bonde Nielsen*** *(supra).* 23. Balance of convenience is the percentage of prejudice in the absence of an injunction and the suit ultimately being dismissed, being more on the plaintiff’s side than the defendant, as held in ***Pius Kipchirchir Kogo -vs- Frank Kimeli Tenai*** *(supra).* 24. In arriving at whether the ***Giella -vs- Cassman Brown & Co. Ltd*** *(supra),* principles have been met, the court is not expected to hold a mini trial or make a definitive finding on fact and the law. All it has to consider based on the rival affidavit evidence is whether, on a balance of probabilities, a case is made to preserve the substratum of the suit in favour of protectable rights or interests of an applicant. 25. The applicant herein seeks to impeach the title held by the 1st respondent under **Section 26 1(a)** of the Land Registration Act. He says he still holds the original title deed, which he was recently asked to surrender to the 2nd respondent, alongside that held by the 1st respondent for investigation, which, unfortunately, the 1st respondent has declined. The applicant contends that the 2nd respondent has retained his original title deed without justification. The applicant fears that without an inhabitation order, the title may change hands. 26. The 1st respondent swears that the transfer and registration in her name and that of the minor, the only issue of their marriage, took place on **11/3/2020**, through a voluntary agreement. She terms the delay as inordinate to raise the claim of fraud and also occasioned by unnecessary pressure by her stepchildren around **February 2026**. The 1st respondent says that the first port of call is the 2nd respondent, who is handling the matter, but the applicant has instead rushed to court prematurely. 27. The applicant, in a rejoinder, denies the alleged voluntary transfer and registration. His request is for the documents used to effect the changes to be subjected to forensic document examination. Unfortunately, the applicant has not told the court why he has not done so, since he lodged a formal complaint with the Land Fraud Department. Equally, the 1st respondent has not attached copies of the documents which she used to acquire the title deed to the suit land. 28. Where a land title is under challenge, it is not enough to dangle the instrument of title. See ***Samuel Kamere -vs- Land Registrar, Kajiado [2017] eKLR, Joseph N.K. Arap Ng’ok vs Moijo Ole Keiwua*** *(supra),* ***Dina Management Ltd -vs- County Government of Mombasa & 5 others [2023] KESC 30 (KLR),*** and ***Torino Enterprises Limited -vs- Attorney General [2023] KESC 79 (KLR)***. 29. What baffles me is that the applicant has not addressed the issue that there was a recent sale agreement over the suit land dated **11/7/2024,** before their mutual family lawyer, M/S. Jason Kimani & Co. Advocates. The demand letter dated **3/2/2025** is not written on behalf of the applicant, but by a stranger to this suit. 30. There is no record search certificate to show when the applicant or his son became aware of the changes to the title register. The notice of intention to register a restriction is dated **9/9/2025**. It indicates that the title deed is held in the name of the 1st respondent and a minor. There is no explanation for the delay in filing the suit from **3/2/2025** to **4/2/02026**. 31. When the parties appeared before me in person on **17/2/2026**, there was disclosure that the 1st respondent and the applicant are still married and live under the same roof. They also stated that the original title is held by the family lawyer, for purposes of excising a portion sold to Susan Maina, to cater for the welfare of the minor. 32. They also indicated that the suit land holds a business premises which, if the injunction is granted, the 1st respondent will be restrained from accessing. None of the parties, however, has alluded to the status of the suit land, save for its registration. 33. Courts have held that it is not enough to raise issues. Evidence must show an infringement of a right with a probability of success of the applicant’s case upon trial. 34. In ***Mrao Ltd*** *(supra),* the court said that the standard must be higher than an arguable case. The three elements must also be met distinctly, separately, and logically as held in ***Nguruman Ltd*** *(supra).* 35. In ***Films Rover International -vs- Cannon Films Sales Ltd [1986] 3 ALLER 772***, the court said it should take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong. 36. In this case, weighing the relative strength of the party’s perspective and being mindful that there is a minor involved in the registration and the title deed, I think there is no likelihood of irreparable loss or damage, since the title deed cannot change hands without the leave of the court, to safeguard the interests of the minor. 37. The upshot is that I find the application lacks merit. It is dismissed with no order as to costs. 38. Mention on **27/7/2026** for pre-trial conference. Mention notice to issue. 39. Orders accordingly. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **24th** day of **June 2026.** **In the presence of:** Court Assistant - Dennis No appearance for the parties  **HON. C.K. NZILI** **JUDGE, ELC KITALE.**