https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4697

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELC CASE NO. E023 OF 2026** **ROBERT KIRWA KEMEI………………..…………………1ST PLAINTIFF** **JAMES KIPROP KEMEI………………………………..….2ND PLAINTIFF** **SAMMY KITUR………………………………………..…….3RD PLAINTIFF** **-VERSUS-** **MAGIRINI KITUR MUNGOR………………………………. DEFENDANT** **RULING:** 1. This Ruling is with respect to the Plaintiffs/Applicants’ Notice of Motion dated 27th February, 2026 through which they seek the following orders: - 2. That this application be certified urgent and heard ex parte in the first instance. 3. That pending the hearing and determination of this application inter parties, this Honorable Court be pleased to issue a temporary injunction restraining the Defendant/Respondent, whether by himself, his agents, servants, employees, or any person acting under his authority from subdividing, selling, transferring, alienating, entering upon, or interfering with **TURBO EAST/LESERU, BLOCK 1 (CHEPTABACH)/21** or any portion thereof adverse to the Plaintiffs’ occupation and possession. 4. That pending the hearing and determination of this suit, a temporary injunction do issue in the above terms. 5. That this Honorable Court be pleased to issue an order of inhibition directed at the Land Registrar, Uasin Gishu County, prohibiting any dealings whatsoever with TURBO EAST/LESERU BLOCK 1 (CHEPTABACH)21 pending the hearing and determination of this suit. 6. THAT this Honorable Court be pleased to issue an order for preservation of the status quo pending the hearing and determination of this suit and this Application. 7. That the costs of this Application be provided for. 8. The Application is supported by an affidavit sworn by the 1st Plaintiff/Applicant herein on his own behalf and on behalf of the 2nd and 3rd Plaintiffs/Applicants on 27th February 2026 and the annextures thereto whose deposition basically explains out the grounds upon which the application is predicated among others. 9. Briefly, the Applicants aver that the Respondent is their father and the registered proprietor of the suit property. A copy of the Title Deed has been annexed. The Applicants contend that they have been in open, continuous and uninterrupted occupation of portions of the suit property where their homes and developments stand, and their occupation arises from a customary family trust. 10. The Applicants further contend that the Respondent has initiated steps towards sub-division and sale of the land, including the portions they occupy. That the intended acts threaten unlawful dispossession, destruction of homes and irreparable loss that cannot be compensated in damages. 11. The Applicants aver that pursuant to *Ex-parte* orders obtained in Eldoret CM Civil Misc. Case No. E291 of 2025, Surveyors and Police Officers visited the land, and unless restrained by this court, the Respondent’s actions will occasion the applicants irreparable loss and render the suit nugatory. That it is in the interest of justice that the property be preserved and status quo maintained pending trial. 12. In opposing the Application, the Defendant/Respondent herein filed a Replying Affidavit dated 14th April, 2026 sworn by Magirini Kitur Mungor, the Respondent herein. Briefly, the Defendant/Respondent contends that the Applicants application is unfounded, unmerited, misconceived and untenable as there is no cause of action due to the absence of a prima facie case as he is the lawful registered owner of the subject land which has been attested to in the Supporting Affidavit of the Plaintiffs/Applicants herein. That as the proprietor of the land, he is vested with all rights and privileges belonging or appurtenant thereto free from all other interests and claims whatsoever and prayed for dismissal of the application. 13. The Application was canvassed by way of written submissions. The respondent filed his submissions dated 13th May, 2026 through the office of M/s Jepkemboi Irene & Co. Advocates. Upon perusal of the Court file and the E-filling system, I have not seen any submissions by the Applicants. **Analysis and Determination:** 1. I have carefully considered the motion, the grounds pleaded in support thereof, the Supporting Affidavit and the Replying Affidavit. I have also read and considered the submissions filed by the Defendant herein as well as the law and the authorities cited thereunder. 2. The court finds that the issues for determination are:- 3. **Whether the Applicant’s Application dated 27th January 2026 has met the requisite threshold to grant the interlocutory injunction sought.** 4. **Whether an order of inhibition should issue.** 5. **Whether the Plaintiffs/Applicants have made a case for grant of the status quo orders sought.** 6. **Who bears the costs of the application?** 7. **Whether the Applicant’s Application dated 27th January 2026 has met the requisite threshold to grant the interlocutory injunction sought;** 8. As correctly submitted by the Defendant’s Counsel, the principles for the grant of a temporary injunction are well set out in the case of ***Giella vs. Cassman Brown & Co. Ltd (1973) EA 358*.** 9. It is trite law that a claimant seeking orders of temporary injunction must establish that he/she has a prima facie case with a probability of success, must show that he/she will suffer irreparable loss which would not be adequately compensated by an award of damages if the order is not granted and if the court is in doubt, it will decide the application on a balance of convenience. 10. The Court of Appeal in the case of ***Nguruman Limited vs. Jan Bonde Nielsen & 2 others [2014] eKLR*** restated this position and held as follows:- ***“…these are the three pillars on which rest 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… if the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”*** 1. I will now proceed to discuss and determine whether these 3 principles have been met and to consider whether the applicants have satisfactorily proved the same to the required standard. 2. The applicants are under a duty to demonstrate the existence of a *prima facie* case which raises arguable and triable issues with a probability of success. The Court of Appeal in ***Mrao Ltd vs. First American Bank of Kenya and 2 Others (2003) KLR 125*** explained what amounts to a prima facie case and stated 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. The question that therefore follows is whether the applicants have established a prima case and demonstrated their right which is at risk of being infringed by the Defendant/Respondent to warrant the grant of the injunctive orders. 2. The Applicants herein contend that they are in actual, open and longstanding occupation of portions of the suit land where their homes and developments stand, and that the respondent herein has initiated steps towards subdivision and disposal of the suit property, including the portions occupied by the applicants, and that without the court’s intervention, the intended subdivision and/or sale will occasion the Applicants irreparable loss, including demolition of their homes and displacement, adding that unless the orders sought are granted, the suit may be rendered nugatory. 3. It is not disputed that the Respondent who is the Applicants father is the registered owner of the suit land. The Applicants claim beneficial interest in the portions of the land that they occupy by virtue of customary trust. However, it is the Respondent’s contention that the Applicants’ suit is untenable, adding that as the registered proprietor of the suit property, he should be permitted to enjoy his proprietary rights and interests over the land without any impediment. I will not however belabor much on the rival claims as they will be canvassed at the hearing of the main suit. Therefore, in order not to render the suit nugatory, I am of the considered view that the order of temporary injunction is merited and is allowed. 4. **Whether an order of inhibition should issue;** 5. An order of inhibition was also asked for by the Applicants herein. This order is normally issued where the possibility of interfering with title with a view to defeating the interest of justice is real. The courts usually try to consider whether an Applicant has an arguable case. 6. In ***Japhet Kaimenyi M’ Ndatho Vs M’ Ndatho M’ Mbwi Ria (2012) eKLR***, the threshold for granting an order of inhibition was said to include a demonstration that the suit property is at risk of being transferred, alienated or disposed of; that refusal to grant the order would render the suit nugatory; and that the applicant has an arguable case. 7. In an application for orders of inhibition, in my understanding, the applicant has to satisfy the following conditions: - 8. **That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the applicant unless preservatory orders of inhibition are issued.** 9. **That the refusal to grant orders of inhibition would render the applicant’s suit nugatory.** 10. **That the applicant has arguable case.** 11. The Court is therefore enjoined to determine the application on the basis of the material placed before it and the applicable law. 12. As already stated, from the affidavits on record, the Applicants contend that they are in occupation of portions of the suit property upon which their homes and developments stand and that the Respondent has commenced the process of subdividing, and threatened to sell and dealing with the suit land to their prejudice. While these allegations will ultimately be tested at the hearing, they disclose a real apprehension that the character of the suit property may change and the land alienated before the dispute is finally determined. 13. In the circumstances of this case, the Court is persuaded that the balance of convenience tilts in favour of preserving the suit property. If the preservatory orders are declined and the land is subdivided or transferred to third parties, the prejudice likely to be suffered by the Applicants may not be adequately remedied, whereas maintaining the existing state of affairs pending trial causes no undue prejudice to the Respondent, who will remain the registered proprietor subject only to temporary restrictions on dealings with the property. Therefore, the prayer for an order of inhibition is merited and is allowed. 14. **Whether the Plaintiffs/Applicants have made a case for grant of the status quo orders sought;** 15. Under this sub - heading, the Honorable Court shall endeavor to assess whether the Plaintiff/Applicants are entitled to the reliefs sought. 16. The Black’s Law Dictionary, Butter Worth’s 9th Edition, defines status quo as a Latin word which means ‘the situation as it exists’. The purpose of an order of status quo has been reiterated in a plethora of decisions. I will enumerate but just a few of them. In the case of ***“Republic – Versus - National Environment Tribunal, Ex - Parte Palm Homes Limited & Another [2013] eKLR***, Odunga J. (as he then was) stated: - ***“When a court of law orders or a statute ordains that the status quo be maintained, it is expected that the circumstances as at the time when the order is made or the statute takes effect must be maintained. An order maintaining status quo is meant to preserve the existing state of affairs...Status quo must therefore be interpreted with respect to existing factual scenario...”*** 1. Further, in the case of ***TSS Spinning & Weaving; Company Limited – Versus - Nic Bank Limited & another [2020] eKLR***, the court then unpacked the purpose of a status quo order as follows: - ***“In essence therefore, a status quo order is meant to preserve the subject matter as it is/existed, as at the day of making the order. Status quo is about a court of law maintaining the situation or the subject matter of the dispute or the state of affairs as they existed before the mischief crept in, pending the determination of the issue in contention.’*** 1. A status quo order is intended to preserve the prevailing state of affairs so that the rights of the parties are determined on their merits without the subject matter being altered. The purpose of such an order is to maintain the property in its existing condition pending the hearing and determination of the dispute. 2. Having considered the material before the Court, I am satisfied that there exists a genuine dispute regarding the suit property and that there is a real risk of subdivision and sale or other dealings with the land before the suit is heard. 3. Therefore, in the interest of justice and to preserve the substratum of the suit, it is appropriate that the status quo be maintained and an order of inhibition be registered against the title pending the hearing and determination of the suit. 4. **Who bears the costs of the application;** 5. It is trite that costs are at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of the legal action or proceedings. The Proviso **of Section 27 of the**[***Civil Procedure Act***](https://kenyalaw.org/akn/ke/act/1924/3)**, cap. 21** holds that costs follow an event. By an event it means the outcome or result of the legal action or proceedings thereof. 6. However, the circumstances of this case which is a dispute between a parent and his children have led the court in believing that it will be in the interest of justice, equity and conscience to have each party bear its own costs. **Disposition:** 1. Consequently, the Notice of Motion dated 27th February 2026 is allowed on the following terms:- 2. A temporary injunction is hereby issued restraining the Defendant, whether by himself, his agents, servants, employees or any person acting under his authority, from subdividing, selling, transferring, alienating, charging or in any other manner dealing with TURBO EAST/LESERU BLOCK 1 (CHEPTABACHI)/21 pending the hearing and determination of this suit. 3. An order of inhibition is hereby issued directed to the Land Registrar, Uasin Gishu County, prohibiting the registration of any dealings over TURBO EAST/LESERU BLOCK 1 (CHEPTABACHI)/21 pending the hearing and determination of the suit. 4. The status quo on the suitproperty be maintained as at the date of this ruling pending the hearing and determination of the suit. 5. Each party to bear its own costs. 6. Parties are also implored to consider having the matter referred for mediation. **DATED**, **SIGNED** and **DELIVERED** at **ELDORET** on this **23RD** day of **JULY,2026.** **HON. C. K. YANO** **ELC, JUDGE** Ruling delivered virtually in the presence of:- No appearance for Plaintiffs/Applicants. Ms. Rop for Defendant/Respondent Court Assistant - Laban