https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4151

Khan v Housing Schemes Ltd & 3 others (Land Case E369 of 2025) [2026] KEELC 4151 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEELC 4151 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E369 of 2025 CG Mbogo, J July 6, 2026 Between Kayum Khan Plaintiff and Housing Schemes Limited 1st Defendant The Chief Land Registrar 2nd Defendant The Attorney General 3rd Defendant and Mukta Chandarakant Geewala (In her capacity as the personal representative and executrix of the will and Estate of the Late Chandrakant Shamjibhai Gheewala) Interested Party Ruling 1.Before this court for determination is the notice of motion dated 28th July, 2025 filed by the plaintiff/applicant and it is expressed to be brought under Sections 1A,1B,3 and 3A of the Civil Procedure Act, Sections 3(1) & 19(1) of the Environment and Land Court Act, Order 40 Rules 1, 2 & 4 and Order 51 Rules 1, 3 & 4 of the Civil Procedure Rules seeking the following orders:-1.Spent.2.That this honourable court be pleased to grant an order of temporary injunction, restraining the 1st defendant/ respondent by itself, through its directors, servants, employees, agents, assignees, tenants or any other person acting on its behalf or its instructions from evicting, entering, demolishing, taking possession of flat no. 5 situate on the grounds floor of land reference LR. 209/4796/4 Desai Road, Ngara, Nairobi in whole or any part thereof or the parking area immediate outside, or any of its appurtenances, or from alienating, transferring, leasing, charging, disposing off, or in any manner whatsoever from interfering with the plaintiff/ applicant’s peaceful and quiet possession and enjoyment of flat no. 5 pending the hearing and determination of this application.3.That the 1st defendant/respondent by itself, through its directors, servants, agents, assignees, tenants, sub-lessees or any other person acting on its behalf or instructions be and are hereby restrained from harassing, disturbing, annoying, provoking the plaintiff/applicant, or blocking his or his licensees, visitors, easement rights to land reference LR 209/4796/4 or in any other manner whatsoever threatening or interfering with the person of the plaintiff/ applicant or his peaceful and quiet enjoyment of his domicile on LR 209/4796/4, pending the hearing and determination of this application.4.That the Officer Commanding Parklands Police Station be ordered to ensure compliance by the 1st defendant/respondent with the above orders no. 2 & 3 of this honourable court.5.That the 2nd defendant/respondent be and is hereby restrained from registration or changes of registration in the ownership status, user, sub-division, sub-leases or charge the title, or any extension or renewal thereof, of land reference LR no. 209/4796/4, Nairobi, pending the hearing and determination of this application.6.That the 2nd defendant/respondent be ordered to supply certified copies of the green card record of LR no. 209/4796/4 Nairobi from manual records or other detailed records from electronic system within 15 days hereof, to the plaintiff/applicant.7.That this honourable court be pleased to grant an order of temporary injunction, restraining the 1st defendant/respondent by itself, through its directors, servants, employees, agents, assignees, tenants or any other person acting on its behalf or its instructions from evicting, entering, demolishing, taking possession of flat no. 5 situate on the grounds floor of land reference LR. 209/4796/4 Desai Road, Ngara, Nairobi in whole or any part thereof or the parking area immediate outside, or any of its appurtenances, or from alienating, transferring, leasing, charging, disposing off, or in any manner whatsoever from interfering with the plaintiff/ applicant’s peaceful and quiet possession and enjoyment of flat no. 5 pending the hearing and determination of the main suit.8.That the 1st defendant/respondent by itself, through its directors, servants, agents, assignees, tenants, sub-lessees or any other person acting on its behalf or instructions be and are hereby restrained from harassing, disturbing, annoying, provoking the plaintiff/applicant, or blocking his or his licensees, visitors, easement rights to land reference LR 209/4796/4 or in any other manner whatsoever threatening or interfering with the person of the plaintiff/ applicant or his peaceful and quiet enjoyment of his domicile on LR 209/4796/4, pending the hearing and determination of the main suit.9.That the Officer Commanding Parklands Police Station be ordered to ensure compliance by the 1st defendant/respondent with the above orders no. 7 & 8 of this honourable court.10.That the 3rd defendant/respondent be and is hereby restrained from registration or change of registration in the ownership status, user, sub-division, sub-leases or charge the title, or any extension or renewal thereof, of land reference LR no. 209/4796/4, Nairobi, pending the hearing and determination of the main suit.11.That the 1st defendant/respondent be ordered to stop all commercial activities permitted by it and being carried out on the portion of LR No. 209/4796/4 consisting of the earlier constructed 21 flats pending the hearing and determination of the main suit.12.That the 1st defendant/ respondent be ordered to provide audited accounts for the service charge collected by it over the last ten years from the portion of LR no. 209/4796/4 consisting of the earlier constructed 21 flats within 60 days hereof.13.Costs be in the plaintiff/applicant’s favour. 2.The application is premised on the grounds on its face. It is further supported by the affidavit of the plaintiff/applicant sworn on even date. The plaintiff/applicant deposed that the 1st defendant/respondent is the registered owner of LR no. 209/4796/4 consisting of flats sold to various individuals including himself and his sisters who are the beneficial owners of flat no. 5 by virtue of grant orders from Kadhi’s court. He further deposed that while the suit property has been engaged in legal battles over succession before the high court, family division, together with his sisters, they have been denied their constitutional rights of ownership as the 1st defendant/respondent continues to deprive them of the sub-lease for over 18 years of possession. 3.The plaintiff/applicant further deposed that it was anticipated that the 1st defendant/respondent would issue a sub-lease under sectional title with reversionary interest, and by not converting the title to sectional title, the 1st defendant/respondent wants to continue retaining the title in its name and physically take possession of flat no. 5. He deposed that while proceedings before the family division were underway, the 1st defendant/respondent issued a letter dated 13th March, 2025 addressed to the tenant in flat no. 5 informing him of expiry of the tenancy on 1st September, 2025 while referring to a non-existent lease. The plaintiff/applicant deposed that the 1st defendant/respondent has now issued a notice demanding vacant possession of flat no. 5 and further ignored his family as the owners of the said flat. He deposed that an order of status quo will preserve the main suit and allow the family court to effectually determine the affidavit of protest in the succession cause. 4.The application was opposed by the replying affidavit of Shrikesh Gheewala, the director of the 1st defendant/respondent sworn on 21st November, 2025. He deposed that the 1st defendant/respondent is the registered owner of flat no. 5 situate on the suit property, and that it is false that the plaintiff/applicant’s late father purchased the suit property since the 1st defendant/respondent granted long term leases to various individuals which have already expired, and by reason thereof, long term lessees are bound to surrender and handover vacant possession. 5.The 1st defendant/respondent deposed that the only interest that could be conferred to the plaintiff/applicant was limited to the leasehold interest and not ownership of the said flat. Further, that the same could not form part of the estate of the plaintiff/applicant’s late father. That being owner of the suit property, the 1st defendant/respondent deposed that it has the mandate and authority to convert the same to commercial use as it pleases. Further, that it has no obligation to disclose the amounts expended towards payment of rate, and land rent to third parties. It was further deposed that the leasehold interest expired on 31st November, 2025 and tenants were invited to share the costs of renewal in exchange for renewal of respective leases. 6.The plaintiff/applicant filed his response thereto and a supplementary affidavit both sworn on 3rd December, 2025. He deposed that the 1st defendant/respondent is not the registered owner of flat no. 5 as per the grounds of opposition filed in succession cause no. 264 of 1994. Further, that the interest conferred to his late father was as a result of purchase of the flat and all amenities, and that any contentions on acquisition are for deliberations in the main suit. 7.The 1st defendant/respondent filed a further replying affidavit sworn on 6th February, 2026. The 1st defendant/respondent deposed that this application is an abuse of court process as there are similar applications dated 26th July, 2024, 30th September, 2024 and 24th October, 2025 in succession cause no. 264 of 1994. Further, that the leasehold interest being for a term of 70 years and 5 months, expired and no longer exists. The 1st defendant/respondent deposed that the leasehold cannot be a subject matter of a cause of action. Further, that the plaintiff/applicant has not demonstrated that he has any right to a reversionary interest with respect to the expired leasehold interest. 8.The plaintiff/applicant filed an affidavit in response thereto sworn on 26th February, 2026 and deposed that sub judice does not exist, and has only been brought up to delay the hearing and determination of this matter. Further, that the notice to vacate flat no. 5 has been necessitated with the filing of this matter. 9.The application was canvassed through written submissions. The plaintiff/applicant filed his written submissions dated 5th March, 2026. By the time of writing this ruling, the defendants/respondents and the interested party had not filed their written submissions. Be that as it may, I have considered the application, the replies thereof and the written submissions filed by the plaintiff/applicant. The issue for determination is whether the application has merit. 10.Interlocutory injunctions are provided for under Order 40 Rule (1)(a) and (b) of the Civil Procedure Rules, which states that–“Where in any suit it is proved by affidavit or otherwise-a.that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; orb.that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 11.It is trite law that an injunction is a discretionary remedy, and it is granted based on sound evidence and the applicable legal principles. The principles to be considered by courts when dealing with interlocutory injunction applications were laid down by the court in Giella v Cassman Brown and Co. Ltd [1973] EA 358 as follows:-“Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 12.The Court of Appeal in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, defined a prima facie case as:-“A case in 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.” 13.In determining whether there is a prima facie case, the plaintiff/applicant must show an infringement of a right, and the probability of success of his case upon trial. That is clearly a standard, which is higher than an arguable case. In considering whether there is a prima facie case, the plaintiff/applicant contended that together with his sisters, they are the lawful owners of flat no. 5 which was purchased by their late father from Mrs. Shakuntala Aggarwal through an agreement of sale dated 16th April, 2003. In support thereof, the plaintiff/applicant relied on a copy of the sale agreement, proof of payment and letters evidencing the acquisition of the flat by their late father. On the other hand, the 1st defendant/respondent maintained that it owns flat no. 5 and the interest conferred upon the plaintiff/applicant was leasehold which expired and the same is without a reversionary interest. Clearly, and evidently so, there is active litigation going on at the family division in the high court concerning the estate of Chandrakant Gheewala as largely contested save that this court will not attempt to interfere with the proceedings in that court. 14.However, and for purposes of this suit, the instant application was precipitated by the notice to vacate dated 3rd July, 2025. I have read the said notice informing tenants of the expiry of the lease, and the extension of an invitation to purchase the units from the landlord. There is also the letter dated 13th March, 2025 written to the tenants of the 1st defendant/respondent inviting them to renew their tenancies and extend their leases. While the 1st defendant/respondent strongly disagreed that the plaintiff/applicant cannot claim ownership of the flat, the sale agreement dated 16th April, 2003 and the letters both dated 24th March, 2003 and written to Mrs. Shakuntala Aggarwal and the plaintiff’s applicant late father have not been controverted either. The agreement, proof of payment and these letters demonstrate an identifiable interest by the plaintiff/applicant in the suit property. In addition, and unless withdrawn, the grounds of opposition dated 20th August, 2024 filed in succession cause no. 264 of 1994 indicates that the 1st defendant/respondent and the interested party admitted that flat no. 5 does not form part of the estate of the late Chandrakant Gheewala. In my view, the plaintiff/applicant’s interest requires protection by the court to mitigate any danger pending the hearing and determination of the suit. 15.On whether the plaintiff/applicant will suffer irreparable loss that cannot be compensated by way of damages, the plaintiff/applicant contended that they risk losing the property following the notices that were issued. This follows their numerous requests to have the title surrendered to enable registration of sectional titles and the changes in development of the suit property thereon particularly with staff washrooms which he contended is likely to affect their interest on the land. 16.In the case of Nguruman Limited v Jan Bonde Nielson & 2 Others [2014] eKLR it was observed that:-“The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 17.It is without gainsaying that the plaintiff/applicant requests for registration of a sublease have bore no fruits, and instead the proceedings in the succession cause have been used as a reason for the non-registration. Whether the lease is already expired is an issue to be canvassed during trial because the letters by the 1st defendant/respondent is clear that there is intention to renew and extend the said leases. In my view, there is likely to be harm on the plaintiff/respondent which money may not be an adequate remedy. 18.Having said the above, I find merit in the notice of motion dated 28th July , 2025 and it is hereby allowed in the following terms:-i.The 2nd defendant/respondent is hereby ordered to supply certified copies of the green card record of LR no. 209/4796/4 Nairobi from manual records or other detailed records from electronic system within 15 days hereof, to the plaintiff/applicant.ii.An order of temporary injunction is hereby issued, restraining the 1st defendant/ respondent by itself, through its directors, servants, employees, agents, assignees, tenants or any other person acting on its behalf or its instructions from evicting, entering, demolishing, taking possession of flat no. 5 situate on the grounds floor of land reference LR. 209/4796/4 Desai Road, Ngara, Nairobi in whole or any part thereof or the parking area immediate outside, or any of its appurtenances, or from alienating, transferring, leasing, charging, disposing off, or in any manner whatsoever from interfering with the plaintiff/ applicant’s peaceful and quiet possession and enjoyment of flat no. 5 pending the hearing and determination of the main suit.iii.The 1st defendant/ respondent by itself, through its directors, servants, agents, assignees, tenants, sub-lessees or any other person acting on its behalf or instructions be and are hereby restrained from harassing, disturbing, annoying, provoking the plaintiff/applicant, or blocking his or his licensees, visitors, easement rights to land reference LR 209/4796/4 or in any other manner whatsoever threatening or interfering with the person of the plaintiff/applicant or his peaceful and quiet enjoyment of his domicile on LR 209/4796/4, pending the hearing and determination of the main suit.iv.The Officer Commanding Parklands Police Station is hereby directed to ensure compliance by the 1st defendant/respondent with orders no. (ii) & (iii) above.v.The 3rd defendant/respondent is hereby restrained from registration or change of registration in the ownership status, user, sub-division, sub-leases or charge the title, or any extension or renewal thereof, of land reference LR no. 209/4796/4, Nairobi, pending the hearing and determination of the main suit.vi.Costs in the cause.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 6TH DAY OF JULY, 2026.HON. MBOGO C.G.JUDGE06/07/2026.In the presence of:Ms. Benson Agunga - Court assistantNo appearance for the Plaintiff/ApplicantNo appearance for the Defendants/Respondents