https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5210

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **KAJIADO LAW COURTS** **ELCL CASE NO. E064 OF 2025** **VINCENT CHARLES KARANI ……………………………….……………. 1ST PLAINTIFF** **MARY MORAA KARANI ……………………………………..……………. 2ND PLAINTIFF** **VERSUS** **GEORGE WAINAINA NJOGU ……………….......................…………… 1ST DEFENDANT** **PEWAKI ENTERPRISES LIMITED …………………..…..……………. 2ND DEFENDANT** **LAND REGISTRAR, NGONG ……………………………....…………… 3RD DEFENDANT** **TOWN CLERK, OLKEJUANDO COUNTY COUNCIL,** **(COUNTY GOVERNMENT OF KAJIADO) …………………..….…….. 4TH DEFENDANT** **DIRECTOR OF SURVEYS ………………………………………….……. 5TH DEFENDANT** **THE ATTORNEY GENERAL ………………………..…………….…….. 6TH DEFENDANT** **RULING** ***(In respect of the Plaintiffs’ Notice of Motion dated 11th July, 2025 seeking orders of temporary injunction against the Defendants pending the hearing and determination of the suit)*** **Background** 1. The Plaintiffs’ case is that they are legally registered owners of land, parcel No. Ngong Block II/338, which they allegedly bought from one, Saroni Ole Sane, whom they describe as the 1st registered owner of the property, following a grant of lease issued to him by the Government of Kenya, for a term of 99 years from 1 July 1992. The Plaintiffs assert that they purchased the property vide an agreement dated 28th of September 2004 for Kenya shillings 1,000,000/=. 2. In the further amended plaint amended on 11th of July 2025, the Plaintiffs plead that the vendor, Saroni Ole Sane, signed all the transfer documents on 27th September 2004 and they paid all the government fees towards the transfer whereby official receipts were issued on 24th September 2004. They insist that they conducted due diligence prior to the purchase and confirmed that Saroni Ole Sane was the legal owner of the property through an official search and the fact that he was in possession of his original title and had paid the land rates. They were purportedly issued with the title deed on 27th September 2004; and allegedly took possession of the property, fenced it off and commenced development. 3. It is the Plaintiffs’ case that the in year 2006-2007, the 1st Defendant entered into the property, demolished their structures thereon including the fence and erected his own. He further, according to the Plaintiff, threatened them with violence when they sought an explanation for his actions. 4. Upon searching at the land registry, the Plaintiffs assert that they found out that their land had another title deed in the name of the 1st Defendant, whose title was Ngong Township/Block 2/338. The Plaintiffs accuse the Defendants of perpetrating fraud in issuing another title for their property as more particularized at paragraph 23 of the further amended plaint. 5. The Plaintiffs allege that the 1st Defendant subsequently went ahead to sell the property to the 2nd Defendant, who is now in possession of the land. 6. In their motion dated 11th July 2025, the Plaintiffs pray for orders of temporary injunction restraining the Defendants by themselves, their agents, servants, employees or persons acting under their direction, control or supervision from making permanent buildings, selling, disposing, charging the property or in any other way dealing with the property known as Ngong/Block II/338 and or Ngong Township/Block 2/338 measuring 0.052 Hectares situated within Ngong town, pending the hearing and determination of this suit. 7. The Plaintiffs assert that they are apprehensive that unless the prayers sought are granted, the 1st and 2nd Defendant/Respondents may interfere with their ownership of the land by way of sale to third parties thereby rendering the suit herein nugatory. They further allege that they stand to suffer irreparable loss and damage in the event the suit property is sold to third parties as they may not be able to recover it in the event they are successful in this case. 8. The application is supported by the affidavit of Mary Moraa Karani sworn on her own behalf and on behalf of her co-Plaintiff on 11th July 2025. The deponent reiterates the assertions in the further amended plaint, urging the court to grant the orders of temporary injunction pending the hearing and determination of the suit. 9. The Plaintiffs application is opposed by the 1st and 2nd Defendants through their respective replying affidavits. The 2nd Defendant through the replying affidavit of its director, Peter Kinuthia Kibunyi terms the Plaintiffs’ suit and application a non-starter, misconceived, mischievous, fraudulent, contradictory and an abuse of the process of court. The deponent deposes that the 2nd Defendant entered into an agreement for purchase of the suit property with George Wainaina Njogu, the registered owner of the suit property on 7th March 2018 having carried out all due diligence on the property before the purchase. 10. The 2nd Defendant affirms that it holds a clean title over the suit property having followed all due process in acquiring it. The deponent points out to the contradictions in the Plaintiffs’ pleadings opining that the documents relied on are either forged or created for the sole purpose of attempting to illegally acquire the suit property from the 2nd Defendant. He urges the court to dismiss the Plaintiffs’ application. 11. The 1st Defendant’s replying affidavit is sworn on 4th August 2025. The 1st Defendant likewise terms the Plaintiffs’ application as misconceived, frivolous, vexatious and a gross abuse of the court process. He asserts that the Plaintiffs’ claim is statute barred by virtue of Section 7 of the Limitation of Actions Act. 12. The 1st Defendant states that he entered into an agreement for purchase of the suit property with its registered proprietor way back on 12th February 2004 having carried out due diligence which confirmed Alfred Muriithi Njagi, the proprietor of Dether industries as the registered owner of the property. He acquired title in his name on 18th May 2004, and thereafter took possession peacefully and without interruption. He lawfully sold and transferred the property to the 2nd Defendant on 7th March 2018. 13. The 1st Defendant too points out to the contradictions and inconsistencies in the Plaintiffs’ case terming the evidence thereof as incredible. He deposes that the Plaintiffs have no prima facie case and are attempting to unjustly dispossess the 2nd Defendant off the suit property; which it otherwise lawfully acquired. **Court’s directions** 1. The Plaintiffs’ application was canvassed by way of written submissions which the court has had occasion to consider in writing this ruling. **Issues for determination** 1. The sole overarching issue for determination is whether the Plaintiffs’ application is merited. **Analysis and determination** 1. One question that prominently arises from a perusal of the Plaintiffs’ further amended plaint is why it took the Plaintiffs so long to come to court in spite of them alleging that the 1st Defendant invaded and supposedly destroyed their developments in the suit property way back in the year 2006/2007. This suit was filed in the year to 2025; 19 or so years later. No explanation whatsoever has been offered for the delay. 2. An order of temporary injunction is an equitable remedy. The rules of equity dictate that equity only aids the vigilant and not the indolent. A party who comes to equity must demonstrate vigilance. The conduct of the Plaintiffs, coming to court over 19 years after the event, supposedly under a certificate of urgency, seeking a temporary injunction on the mere apprehension that the Defendants are likely to deal with the property in a way prejudicial to them does not, by whatever standards, demonstrate the actions of vigilant litigants. 3. The Court of Appeal in ***Rockland Kenya Limited –vs- Eliot white Miller (1994) eKLR***, discussed the object of an interlocutory injunction and the considerations that the court must make, stating that, ***“The object of an interlocutory injunction is to protect the Plaintiff against injury by violation of his legal right for which he could not be adequately compensated in damages recoverable in the action if the matters in dispute were resolved in his favour at the trial. However, his need for such protection must be weighed against the corresponding need of the Defendant to be protected against injury resulting from his having been prevented from exercising his own legal right for which he could not be adequately compensated under the Plaintiff’s undertaking in damages if the subject matter of the trial was decided in his favour. It is a remedy that is both temporary and discretionary. In cases where the legal rights of the parties depend on the facts that are in dispute between them, the evidence available to the court at the hearing of the application for the interlocutory injunction is given on affidavit and is therefore incomplete as it has not been tested by cross-examination.*** ***At the stage therefore, it is not the function of the court to attempt to resolve conflicts of evidence on affidavit as to the facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. Such matters are to be dealt with at the trial. Nonetheless, the court must in the exercise of its discretionary power in this regard be satisfied that the claim in respect of which an interlocutory injunction is sought is neither frivolous nor vexatious; in other words, that there is a serious question to be tried.”*** 1. Additionally, the law is well settled on the conditions for the grant of an interlocutory injunction. The Applicant has to satisfy the triple requirements sequentially, to; 2. ***Establish his case only on a prima facie level;*** 3. ***Demonstrate irreparable injury if a temporary injunction is not granted; and*** 4. ***Ally any doubts as to (b) by showing that the balance of convenience is in his favour.*** 5. It is established that the three (3) conditions and stages are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially. 6. In ***Nguruman Limited vs Jan Bonde Nielsen & 2 others (2014) eKLR***, the Court of Appeal was clear that an Applicant for an interlocutory injunction must establish an 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. 7. The Plaintiffs/Applicants in this case claim ownership of the suit property Ngong Block II/338 situated at Ngong town which they allege to have bought from one Sarone Ole Sane, who was allegedly the initial registered owner and to whom a title deed had been issued on 17th September, 2004. The Plaintiffs aver that they entered into an agreement with Sarone Ole Sane on **28th September, 2004** and paid him a consideration of Kshs. 1,000,000/- but were issued with a title deed on **27th September, 2004**. 8. Interestingly, the Plaintiffs in their further amended Plaint allege that they paid the entire charges and fees towards the transfer and were issued with receipts on **24th September 2004**, four days prior to signing the agreement with the owner of the property. 9. Still more intriguing is the Plaintiff’s assertion at paragraph 12 of their further amended Plaint to the effect that the transfer of the land was handled by Harrison and Mathews on **5th October, 2005**. I say intriguing because of the earlier averment that the Plaintiffs were issued with a title on 27th September, 2004. 10. The Plaintiffs aver that in the year 2006 - 2007, the 1st Defendant entered into the suit property without their consent and demolished the structures therein including the fence and erected his own structures and further fenced the entire suit property. The Plaintiffs subsequently discovered that the suit property had been transferred to the 2nd Defendant and a title deed issued in its name. 11. The 2nd Defendant which holds a title to the suit property opposes the Plaintiffs’ application pointing out to the above cited disparities casting aspersions on the Plaintiffs’ claim for the suit property, and further introducing a letter by the Director of Land Administration dated 23rd May, 2025 addressed to the Land Registrar Ngong which confirms that the suit property was allocated to Muriithi Njagi T/A Dether Industries and who sold it to George Wainaina Njogu way back on **12th February, 2004**. George Wainaina Njogu was issued with a **certificate of lease** on 18th May, 2004 before the alleged Saroni Ole Sane who purportedly sold the suit property to the Plaintiffs. The 2nd Defendant acquired the suit property from George Wainaina Njogu. 12. The Court, in view of the foregoing, without delving into the merits of the case, and in view of the disparities in the Plaintiffs’ narrative of acquisition of the suit property, finds and holds that the Plaintiffs have not established a prima facie case. Secondly, the Plaintiffs have not demonstrated irreparable injury if a temporary injunction is not granted. They have in fact in their further amended plaint sought in the alternative, compensation in monetary terms implying that any damage resulting to them may adequately be compensated in damages recoverable in the action if the matters in dispute were resolved in his favour at the trial; it is therefore not irreparable. 13. Considering the foregoing, the court is not persuaded that the Plaintiffs are deserving of its discretion to grant a temporary injunction pending the hearing and determination of this suit. 14. The Plaintiffs application is therefore dismissed with costs. It is so ordered. **Dated Signed and Delivered Virtually this 4th Day of August, 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Mr. Njiru for the 1st Defendant N/A by the Plaintiffs, 2nd - 6th Defendants Court Assistant: Alex **M.D. MWANGI** **JUDGE**