https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3860

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIVASHA** **ELC LAND CASE NO. E058 OF 2025** **PATRICK NJOROGE KARIUKI…………...……..1st PLAINTIFF/****APPLICANT** **ESTHER NDUTA MBURU..……………………….2nd PLAINTIFF/APPLICANT** **VERSUS** **JULIAH NYAKARO KIIRU……………………1st DEFENDANT/****RESPONDENT** **CHIEF LAND REGISTRAR NAIVASHA……2nd DEFENDANT/RESPONDENT** **HON. THE ATTORNEY GENERAL…………3rd DEFENDANT/RESPONDENT** **RULING** 1. Through a Notice of Motion dated 18th December 2025, brought under the provisions of Sections 24, 25, 26, and 80 of the Land Registration Act, Section 13 of the Environment and Land Court Act, Order 40 Rules 1 and 2, and Order 51 Rule 1 of the Civil Procedure Rules, the Applicant herein sought the court’s intervention to protect their ownership, possession, and rental income in a 0.0732-hectare portion of land carved out of parcel KIJABE/KIJABE BLOCK 1/3831. 2. They sought to be declared the lawful and beneficial owners of the said parcel of land, a temporary and permanent injunction restraining the 1st Respondent from interfering with their possession, management, or collection of rental income and for an order halting any succession or distribution proceedings regarding the deceased's estate, specifically concerning this portion of land. Lastly, they sought an order compelling the Respondents to facilitate and complete the formal registration and transfer of title once the county government restriction is lifted. 3. Their application was supported on the basis of the grounds set out therein, as well as the supporting affidavit sworn by the 1st Applicant, Patrick Njoroge Kariuki, to the effect that on 13th April 2021, the Applicants entered into a valid sale agreement with the late Samuel Kiiru Ndung’u to purchase the property for Kshs. 34,000,000/=. The entire purchase price was paid into a joint bank account held by the deceased and his wife, the 1st Respondent. The funds were subsequently used to clear an existing bank charge with Equity Bank, thereby releasing the original Title Deed, under which the deceased executed formal transfer documents on 25th June 2021 and handed over the original Title Deed. 4. That due to an external, administrative moratorium on subdivisions and transfers imposed by the Nakuru County Government in the Maai Mahiu area (for Special Economic Zone planning), the transfer was not registered. However, a professional surveyor holds the original Title Deed and the executed transfer forms in escrow, awaiting the lifting of the moratorium. 5. Subsequently, the Applicants took exclusive possession in 2021 and built multi-million-shilling rental apartments on the land but following the vendor's death, the 1st Respondent (who benefited from the sale proceeds) began interfering, in bad faith by trying to collect rent from the tenants and claiming the land belonged to the deceased's distributable estate. 6. The Applicants argued that because the sale was fully concluded and paid for, the property legally ceased to be part of the deceased’s estate prior to his death. However, they faced an irreparable financial loss if the court did not protect their investment. 7. There was no response from the Respondents, and pursuant to directions from the court, the Applicants filed their submissions in support of their application as herein summarised. 8. Vide their submissions dated the 10th April 2025, the Applicants argued that their application for temporary injunctions and specific performance was entirely unopposed, as none of the Defendants had filed a response. They contended that they were the rightful owners of the 0.0732-hectare land portion, having fully paid Kshs. 34,000,000/= and taken possession of and built rental apartments. They asserted that the property no longer belongs to the deceased's estate and must be legally preserved to protect their massive investment. 9. They submitted that whereas the 1st Defendant entered an appearance in December 2025, she failed to file any response or replying affidavit. The 2nd and 3rd Defendants also failed to enter an appearance or file any response despite being served, and after three mentions without compliance, their application stood unchallenged and uncontroverted. 10. They based their issues for determination as follows: 11. Whether the Plaintiffs/Applicants' Application dated 18th February, 2025, has satisfied the legal threshold for the grant of a temporary injunction under Order 40, Rule 1 of the Civil Procedures Rules, 2010? 12. Whether the suit property forms part of the Estate of the late Samuel Kiiru Ndung’u? 13. Whether the Plaintiffs/Applicants are entitled to orders of specific performance and consequential orders? 14. They then proceeded to urge that they had successfully fulfilled all three pillars of the classic legal test established in **Giella v. Cassman Brown (1973) EA 358,** **,** stating that they hada clear, enforceable right. That they had proved the purchase via the Sale Agreement, full payment into the joint account, and execution of transfer documents. Furthermore, by putting them (Applicants) in possession of the land, a constructive trust, which is an equitable overriding interest, was created, meaning that the 1st Defendant (widow) could not legally back out. 15. That they hadbuilt multi-million-shilling rental apartments, wherein if the 1st Respondent was allowed to continue to interfere, scare off tenants, or try to alienate the property to third parties, the financial and goodwill damage could not be accurately measured or compensated by money. 16. That the balance of convenience tilted entirely in their favour because they were in actual, physical possession of the land, while the 1st Respondent (widow) was a "stranger to the possession" acting in bad faith after enjoying the sale proceeds. 17. They submitted that the suit property did not form part of the Estate of the deceased because under Section 3 of the Law of Succession Act, an estate only consists of free property, meaning property the deceased was legally competent to freely dispose of at death. That because the deceased had fully concluded the sale, received the entire purchase price, and executed transfer documents during his lifetime, he had completely divested his beneficial interest. At the time of his death, he held the land only as a constructive trustee for the buyers. 18. That they were entitled to specific performance as was held in the case of **Reliable Electrical Engineers Ltd v. Mantrac Kenya Ltd (2006) KLR,** wherespecific performance was granted when a valid, clean contract exists, and alternative remedies, like standard damages, are inadequate. That they had fully performed their obligations and, therefore, the court should compel the 1st Respondent to facilitate the transfer and direct the Land Registry (2nd Respondent) to finalise registration the moment the Nakuru County moratorium is lifted. 19. In conclusion, they stated that preserving the property was necessary to protect the substratum of the case. If an injunction is not granted, the suit risks being rendered useless. They requested that their application dated 18th December 2025, be allowed in its entirety with costs. **Determination.** 1. I have considered the Plaintiffs' applications and the fact that the same was not opposed. I have further considered their submissions, the authorities cited and the applicable law. 2. The Applicants seek several orders, primarily: a declaration that they are the lawful beneficial owners of a portion measuring 0.0732 hectares excised from land parcel kijabe/kijabe block 1/3831 (hereafter "the suit property"); a temporary injunction restraining the 1st Respondent from interfering with their quiet possession and rental income; an order staying any ongoing or intended succession proceedings regarding this specific portion; and an order for specific performance compelling the registration of the transfer. 3. The Applicants' undisputed case is that on 13th April 2021, they entered into a valid Sale Agreement with the registered owner of the land, the late Samuel Kiiru Ndung’u, to purchase the suit property for a consideration of Kshs. 34,000,000/=. They paid the full purchase price, and the deceased executed formal transfer instruments and surrendered the title documents to the Applicants' surveyor. They were then put in possession of the suit premises, wherein they proceeded to develop them, awaiting formal registration of the subdivision and transfer, which was halted by an administrative moratorium imposed by the 3rd Respondent to facilitate Special Economic Zone regional planning. 4. That following the demise of the vendor, the 1st Respondent began interfering with the property in bad faith by attempting to collect rent from tenants and asserting that the portion forms part of the deceased’s distributable estate in anticipated succession proceedings. 5. At this stage, the Court is only required to determine whether the Applicants are deserving of the Orders sought. The Court is not required to determine the merit of the case. 6. Accordingly, the issues that arises for determination herein are as follows: 7. Whether the Applicants have satisfied the criteria for the grant of a temporary injunction. 8. Whether the suit property forms part of the distributable estate of the late Samuel Kiiru Ndung'u. 9. Whether the Applicants are entitled to the final consequential orders sought at this interlocutory stage. 10. The celebrated case of **Giella vs Cassman Brown (1973) EA 358** sets out conditions for the grant of an interlocutory injunction as follows: - 11. Is there a serious issue to be tried (prima facie case)? 12. Will the Applicant suffer irreparable harm if the injunction is not granted? 13. Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits? (Often called "balance of convenience"). 14. On the first issue as to whether the Plaintiff/Applicant in the instant matter has made out a prima facie case with a probability of success, I am guided by the case of **Mrao vs First American Bank of Kenya Limited & 2 Others (2003) KLR 125**, where a prima facie case was described 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 that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”* 1. By demonstrating full payment of Kshs. 34,000,000/=, physical possession, and ongoing development since 2021, the Applicants established that the seller had created an overriding interest in their favour in relation to the suit property. Indeed, as held by the Court of Appeal in **Macharia Mwangi Maina & 87 Others v. Davidson Mwangi Kagiri [2014] eKLR**, when a seller puts a buyer in possession and pockets the consideration, the doctrines of proprietary estoppel and constructive trust seamlessly apply. The 1st Respondent offered no rebuttal to these allegations; therefore, I find that the Applicants have established a prima facie case. 2. It has also not been disputed that the Applicants herein are in possession and occupation of the suit premises, where they have built commercial rental apartments, and where the 1st Respondent's active interference threatens the development's commercial viability. By not granting the orders of injunction sought in a situation like this, there would be damage to tenant goodwill and a risk of alienation to third parties through succession schemes, the injury of which cannot be easily quantified or mended by a basic award of damages, thus causing irreparable harm to the Applicants. 3. The 1st Respondent, seeking to disrupt a long-standing state of affairs in bad faith, I find the balance of convenience tilts in favour of maintaining the status quo and preserving the substratum of the suit. 4. Section 3 of the Law of Succession Act defines ‘’free property’’ as property which the deceased was legally competent to freely dispose of during his lifetime and in respect of which his interest has not been terminated by his death. It is an established principle of equity that where a vendor enters into a valid contract for the sale of land, receives the full purchase price, and executes formal transfer documents, they divest themselves of all beneficial interest in that property. From that moment, the vendor holds the legal title in equity merely as a constructive trustee for the purchaser. The deceased fully divested his beneficial interest in the 0.0732-hectare portion during his lifetime in 2021, and therefore, this Court finds that the suit property does not form part of the free property or distributable estate of the late Samuel Kiiru Ndung’u. 5. However, since at this stage the court is not required to make final findings of contested facts but to weigh the relative strength of the parties' cases as observed by Lord Diplock in **American Cyanamid Co. vs Ethicon Limited (1975) 1 ALL ER 504; (1975) A.C. 396 HL at 510** where he stated as follows: “*It is no part of the Court's function at this stage of the litigation to try and resolve conflicts of evidence on affidavit as to 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. These are matters to be dealt with at the trial.'’’* 1. I find that thebalance of convenience tilts in favour of granting the injunctive orders sought, and therefore, the order that best commends itself in the circumstances of this case is an order of status quo, as in land matters, the maintenance of the status quo order is now literally synonymous with the proceedings. As held by the Court of Appeal in **Mugah –v- Kunga [1988] KLR 748,** in land matters, status quo orders should always be issued to preserve the subject matter. The court’s practice directions Gazette Notice No. 3461/2025 Practice Direction No. 23(l) gives the court the leeway and discretion to make an order for status quo to be maintained until the determination of the case. To this effect, I would therefore interfere in a limited manner by clearly defining the status quo maintained herein to the effect that: 2. A temporary injunction is hereby issued restraining the 1st Respondent, her agents, servants, or any person acting on her behalf, from interfering in any manner with the Applicants’ quiet possession, ownership, developments, and management of the said 0.0732-hectare portion, including the collection of rental income derived therefrom. 3. An order is hereby issued staying any ongoing or intended succession proceedings or the distribution of the estate of the late Samuel Kiiru Ndung’u specifically as it relates to the portion of 0.0732 hectares of land known as Kijabe/Kijabe block 1/3831. 4. Such status quo is to be maintained by all parties until the matter is finally heard and determined. 5. The costs of the application shall be in the cause. 6. Parties to comply with the provisions of Order 11 of the Civil Procedure Rules within the next 21 days for the hearing of the main suit herein. **Dated and delivered via Microsoft Teams at Naivasha this 25th day of June 2026.** **M.C. OUNDO** **ENVIRONMENT & LAND COURT– JUDGE**