Karonge & another v Kimuhu & 3 others (Enviromental and Land Originating Summons E012 of 2026) [2026] KEELC 4985 (KLR) (29 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC O.S NO. E012 OF 2026** **SAMUEL MUNYAMBU KARONGE** **…………………...……… 1ST APPLICANT** **FAITH WANGECI NGIGI (Suing on behalf of Igegania Rural Investment and 198 Others) ………..............................….…. 2ND APPLICANT** **VERSUS** **PETRONILLA NYOKABI KIMUHU ………………..…….. 1ST RESPONDENT** **JACINTA NJERI NGUGI ………………………….....……... 2ND RESPONDENT** **DIRECTOR OF LAND SURVEY AND MAPPING** **MINISTRY OF LANDS & PHYISICAL PLANNING .…. 3RD RESPONDENT** **THE HONOURABLE ATTORNEY GENERAL ……...…. 4TH RESPONDENT** **RULING** 1. The application dated 26th February 2026 raises the question whether the Court should intervene at this interlocutory stage to preserve the position of the parties pending the determination of their competing claims. 2. By a Notice of Motion dated 26th February 2026 the Applicant seeks the following Orders: 1. *Spent…* 2. *Spent…* 3. *THAT upon interparte hearing, the Honourable Court be pleased to grant an interlocutory injunction restraining the Respondents by themselves, their agents and or employees or whoever is acting under their express instructions from disposing, alienating demarcating, sub-dividing or interfering in any manner whatsoever with the land parcel No. L.R 10821/13 I.R 4050 located within Thika municipality pending hearing and determination of the Originating Summons filed herein.* 4. *Any other order that the Honourable Court may deem just and fit.* 5. *THAT the costs of this Application be borne by the Respondents.* 3. The application is premised on the grounds on the face of it and the supporting affidavit of Faith Wangeci Ngigi sworn on even date. 4. The Applicants trace their claim to land parcel No. L.R 10821/13 I.R 4050 located within Thika municipality(hereinafter ‘the suit property’) to transactions said to have taken place from about 1997. Their case is that, over the years, they purchased various portions of the suit property from the administrators and beneficiaries of the estate of the late Patrick Ngugi Kamangara (deceased), who was the owner of the property. Following those transactions, the Applicants state that they took possession of their respective portions and have remained thereon ever since. 5. The Applicants place considerable weight on the length and character of their occupation. They contend that, for periods extending beyond twelve years, they have been in peaceful, open and uninterrupted possession of the parcels which they claim to have purchased. In that time, they assert that they have occupied and utilized the land without disturbance and have, in reliance upon the transactions under which they entered the property, established interests which they now seek to preserve. 6. It is the Applicants' contention that the occupation of their various parcels is now under threat having received a copy of a letter on 23rd February 2026 from the Directorate of Survey and mapping notifying the applicants that the suit property would be surveyed on 2nd March 2026. 7. The Applicants therefore urge the Court to intervene before they are dispossessed of parcels which, by their account, they have purchased, occupied and developed for nearly three decades. 8. Their case is, in essence, that the property and the interests they claim to have acquired in it ought to remain undisturbed until the Court has had the opportunity to hear and determine the Applicants Originating Summons. 9. The 1st and 2nd Respondents vehemently oppose the application. They have set out their case in a Replying Affidavit of Petronilla Nyokabi Kimuhu and Jacinta Njeri Ngugi sworn on 13th March 2026. 10. The Respondents do not dispute that the suit property, measuring approximately 30 acres, forms part of the estate of the late Patrick Ngugi Kamangara (deceased). They dispute, however, the Applicants' contention that the land was lawfully subdivided and sold to them. Their position is that the suit property has never been subdivided and remains part of the estate. 11. The Respondents' case is that the High Court, in *High Court Probate & Administration Cause No. 2715 of 2001 at Nairobi In the matter of the Estate of Patrick Ngugi Kamangara (deceased)* in its judgment dated 14th May 2018, determined the persons lawfully entitled to the estate of the late Patrick Ngugi Kamangara (deceased). 12. The Respondents further contend that, by a ruling dated 27th November 2025, the High Court directed the District Surveyor, Thika, to survey, subdivide and distribute the suit property in accordance with the judgment and to file a report with the Court within 90 days. According to the Respondents, those orders remain in force and have neither been stayed nor set aside by the Court of Appeal. 13. The Respondents maintain that the process of surveying, subdividing and distributing the suit property is not an act undertaken at the instance of the Respondents, but the implementation of orders of a court of competent jurisdiction which remain binding upon the parties. 14. The Respondents further contend that the 1st Applicant was not a stranger to those proceedings. They assert that he participated in, and was aware of, the High Court proceedings, the judgment determining the lawful beneficiaries of the estate and the subsequent orders directing the survey, subdivision and distribution of the suit property. 15. It is the Respondents’ contention that the Applicants' failure to disclose the High Court proceedings and the subsisting orders amounts to a concealment of material facts from the Court. The Respondents characterise that omission as deliberate and calculated to procure injunctive relief on an incomplete presentation of the relevant circumstances. In their view, such conduct is tainted by malice and deceit and constitutes an abuse of the process of the Court, contrary to the principle expressed in the maxim ex turpi causa non oritur actio. 16. The Respondents also challenge the legal foundation of the Applicants' alleged purchases. They point out that the confirmation of the grant in the succession proceedings was undertaken on 14th June 2018, whereas the agreements upon which the Applicants base their claims were, according to them, entered into before the succession cause had been conclusively determined. It is therefore the Respondents' contention that the Applicants could not have acquired a valid interest in specific portions of the suit property at a time when the estate had not yet been conclusively administered and the persons entitled to it had not been finally determined. 17. Against that background, the Respondents contend that the present application is not an attempt to preserve the subject matter of the suit, but an effort to halt the implementation of the High Court's subsisting orders for the survey, subdivision and distribution of the suit property. They urge the Court not to permit interlocutory proceedings to become a means by which the execution of orders of the High Court is indefinitely frustrated. The Respondents accordingly ask that the application be dismissed with costs. 18. The application was canvassed by written submissions in accordance with the court’s directions. **Issues for Determination** 19. Having considered the application, the Replying Affidavit in opposition thereto, the rival submissions and the relevant authorities, the determination turns on whether, in the circumstances of the case, the Applicants have established a basis for the grant of the injunctive orders sought. **Analysis and Determination** 20. The question at this stage is a narrow one. The Court is not called upon to finally determine the competing rights of the parties, but to decide whether the evidence presently before it meets the legal threshold for the injunctive relief sought. 21. The familiar principles in **Giella v Cassman Brown & Co. Ltd [1973] EA 358** remain the starting point. An applicant must show a *prima facie* case with a probability of success, demonstrate that, absent the injunction, he or she is likely to suffer injury incapable of adequate compensation by damages, and, where the Court is left in doubt, establish that the balance of convenience lies in favour of granting the relief. The application of those principles, however, must ultimately be informed by the circumstances of the particular case. 22. The Court of Appeal subsequently clarified in **Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR** that these are separate, distinct and sequential hurdles which an applicant must surmount in the following terms: *“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;* *(a) establish his case only at a prima facie level,* *(b) demonstrate irreparable injury if a temporary injunction is not granted, and* *(c) ally any doubts as to (b) by showing that the balance of convenience is in his favour.* *These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.”* 23. In essence, the three requirements are not to be approached as interchangeable considerations, nor is the Court called upon to address each of them as a matter of ritual. They constitute sequential hurdles, and the failure to surmount the first brings the inquiry to an end. It is therefore to the question whether the Applicants have established a prima facie case that I now turn. 24. The first hurdle is whether the Applicants have established a prima facie case. In **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR**, the Court of Appeal explained that a prima facie case is more than an arguable case. It is one which, on the material placed before the Court, discloses a right apparently infringed by the opposite party as to call for an answer. 25. The Applicants' claim to a *prima facie* case rests upon the interests they say they acquired in the suit property. They contend that, from about 1997, they purchased various portions thereof from the administrators and beneficiaries of the estate of the late Patrick Ngugi Kamangara (deceased) and thereafter took possession. The Respondents contest that account, maintaining that the suit property remained part of the estate and that the alleged transactions preceded the conclusion of the succession proceedings. 26. But the alleged purchases are not the whole of the Applicants' case. For more than twelve years, they say, they have remained in open, peaceful and uninterrupted possession of their respective portions. Such possession, extending over so long a period, cannot be dismissed as a mere footnote to the dispute. Whether it has ripened into a right is a question for trial but until that question is answered, the possession itself is a fact which the Court cannot ignore. 27. In my view, the Applicants have demonstrated a prima facie case sufficient to warrant consideration of the remaining limbs of the Giella test. 28. I therefore turn to the question of irreparable injury. 29. The Applicants assert that they have occupied their respective portions of the suit property for more than twelve years. If the survey, subdivision and distribution now contemplated are allowed to proceed, that occupation may be disrupted before the Applicants' claim has been heard and determined. The injury that may follow is not one which can necessarily be measured, or adequately repaired, in money. Nor is the concern confined to possession alone. The process may change the character of the subject matter itself, leaving the Court, at the conclusion of the trial, to determine rights in circumstances different from those which existed when the dispute came before it. 30. In the circumstances, I am satisfied that the Applicants have demonstrated a risk of injury for which damages may not be an adequate remedy. The second limb of the Giella test is therefore satisfied. It remains to consider where the balance of convenience lies. 31. The balance of convenience calls for weighing of the competing risks. The Respondents have the benefit of subsisting orders directing the survey, subdivision and distribution of the suit property. The Applicants, for their part, assert longstanding occupation of the portions they claim. If the survey, subdivision and distribution proceed, the position on the ground may be altered before the Applicants' claims are heard. If those steps are restrained, the implementation of the succession orders will be delayed. 32. In the circumstances, I consider the greater risk to lie in disturbing the existing position before the competing claims have been adjudicated. The balance of convenience therefore favours preserving the status quo pending the hearing and determination of the suit. 33. The subsistence of the High Court’s succession orders presents a difficulty which cannot be wished away. But neither can the Applicants' claim and asserted longstanding occupation be summarily displaced before the Court has heard the dispute. The injunction is therefore granted not to undo or question those orders, but to hold the position in place until the parties' respective rights have been determined. 32. Accordingly, the Application dated 26th February 2026 is allowed to the following extent. The status quo obtaining on the suit property shall be maintained pending the hearing and determination of the suit. 33. For the avoidance of doubt, the Respondents shall not, pending the determination of the suit, undertake or cause to be undertaken any survey, subdivision or distribution of the suit property in a manner that alters the existing state of affairs. The costs of the application shall be in the cause. **Dated, Signed and Delivered, at Thika this 29th day of July2026.** …………………….. **J. M. ONYANGO** **JUDGE** **In the presence of:** 1. Ms Okumu for Mr. Nyangito for the Applicant 2. Mr. Ochieng for the Respondents. Court Assistant: Sifa