https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4442

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAKURU** **ELCLC NO. E003 OF 2026** **KISHORE DHIRAJLAL** **SHAH……………………….........................................................................APPLICANT** **VERSUS** **MWANGI MATHENGE…………………………………………...1ST RESPONDENT** **ANDREW GACHAGUA NJUI…………………………………....2ND RESPONDENT** **THE LAND REGISTRAR NAKURU…………………………….3RD RESPONDENT** **RULING** 1. This ruling is in respect of the Notice of Motion Application dated 5th February, 2026, by the Applicant seeking the following orders: 2. ***Spent.*** 3. ***Spent.*** 4. ***THAT pending the hearing and determination of this suit inter-parties this Honourable Court be pleased to issue an order of temporary injunction restraining the Defendants by themselves, agents, servants from entering, cutting trees, erecting structures, selling, transferring, alienating, disposing, tilling, cultivating, leasing or in any way from interfering with the subject parcel of land known as Nakuru Municipality Block 12/183 and an order be issued to the OCS Nakuru Police Station for effective compliance.*** 5. ***The costs of this Application be provided for.*** 6. The application is grounded on the supporting affidavit of Kishore Dhirajlal Shah the Applicant herein, who deponed that he was the registered owner of Nakuru Municipality Block 12/183, measuring approximately 0.5141 Hectares, having bought the same from Professor Musangi, who signed transfer forms on 24th May 1988. He stated that he has been paying the requisite ground rent, administrative fees, and rates and does not have any outstanding rates. 7. The Applicant further deponed that he was surprised to find out in March, 2012, vide a search that the property belongs to the 1st Respondent. It was the Applicant’s case that the Respondents unlawfully entered the suit land, erected a wall and cut down trees without his consent. He also stated that he has been unable to access the land to develop the same, and urged the court to allow the orders as prayed. **APPLICANT’S SUBMISSIONS** 1. Counsel for the Applicant filed submissions dated 14th March 2026 and identified two issues for determination, as to whether the Honourable Court should issue a temporary injunction pending hearing and determination of the suit and who should bear the costs of the Application. 2. On the first issue, counsel relied on the case of Giella **Versus Cassman Brown (1973) EA 358,** which established the guiding principles for temporary injunctions, and the case of Maina **V Stanbic Bank Kenya Limited & 2 others [2022] KEHC 9943 (KLR),** on establishing a *prima facie* case. Counsel submitted that the and submitted the Applicant purchased the suit parcel from Professor Musangi, who signed the transfer forms, and annexed payment receipts for rates, rents administrative fees, survey fees, allotment fees and a certificate of lease as proof of a *prima facie* case. 3. Ms. Kemunto, submitted that the 2nd Respondent failed to provide any evidence of payment of statutory outgoings to the local government, and the Applicant’s ownership evidence remained uncontroverted. 4. Counsel submitted that the Applicant would suffer irreparable loss if the Respondents are allowed to construct on, alienate or deal with the suit property, and its character would end up being substantially altered and relied on the case of Nguruman **Limited V Jan Bonde Nielsen & 2 Others [2014] eKLR.** 5. On the issue of which side the balance of convenience tilts, counsel submitted that the same was in favour of preserving the suit property, and relied on the case of **Suleiman V Amboseli Resort Limited [2004] eKLR.** Counsel urged the court to allow the application with costs. **ANALYSIS AND DETERMINATION** 1. The 1st and 3rd Defendant/Respondents did not file any responses to the Application. The court did not see a response from the 2nd Respondent in the file and the Case Tracking System; therefore, the Application is unopposed. 2. The main issue for determination is whether the Applicant has met the threshold for the grant of a temporary injunction pending the hearing and determination of the suit. 3. An Applicant seeking an order of a temporary injunction must satisfy the conditions laid down in the case of Giella **V Cassman Brown & Co Ltd (supra),** establish a prima facie case with a probability of success, that if the order is not granted, he/she will suffer irreparable harm and if the court is in doubt, rule on a balance of convenience. 4. Order 40 Rule 1 of the Civil Procedure Rules, 2010, provides the law on temporary injunctions and states as follows: ***“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;*** ***(b)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 order.”*** 1. The Applicant has stated that he was the registered owner of the suit land having bought it from Professor Musangi, and was shocked to find out that the land had since been registered in the name of the 2nd Respondent who has trespassed on the suit land. He stated that he was issued with a certificate of Lease in 1988, which he annexed as proof, the rates, rent and statutory payment receipts for the suit land. 2. In the case of **Nguruman Limited V Jan Bonde Nielsen & 2 Others [2014] eKLR**, the Court of Appeal stated 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.”*** 1. The Applicant has explained how he purchased the suit land, and the statutory payments that he made, it would be in the interest of justice to preserve the suit land pending the hearing and determination of the suit. This will determine who is the legal owner of the suit land, by tracing the root of the title. At this stage, the issue as to who is the legal owner of the suit land cannot be determined. 1. The upshot is that the Application dated 5th February 2026, is hereby allowed as prayed. **DATED, SIGNED AND DELIVERED AT NAKURU THIS 15TH DAY OF JULY 2026.** **M. A. ODENY** **JUDGE**