https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/506

**REPUBLIC OF KENYA** **IN THE MAGISTRATE COURT OF KENYA AT UASIN GISHU COUNTY** **COURT NAME: ELDORET MAGISTRATE COURT** **CASE NUMBER: MCELC/E086/2026** **GILBERT CHEPKWIROK KOMBELEL AND JUDY JEPKORIR KIPLAGAT VS LAWRENCE KOSGEI** **RULING** **Applicant’s case** 1. Before me for determination is the Notice of Motion application dated 26th May, 2026 brought by the plaintiff/Applicant under Order 40 of the Civil Procedure Rules, seeking the following orders: a. Spent. b. That a temporary order of injunction do issue restraining the defendant/respondent, either by himself, his agents or servants, from trespassing into, occupying, dealing with, transferring, selling, delineating, leasing out, building upon and or disposing or in any manner whatsoever dealing with all that suit parcel of land No. UASIN GISHU /KIMUMU SCHEME/2460 entering onto, trespassing onto, ploughing pending the hearing and determination of this application. c. That a temporary order of injunction do issue restraining the defendant/respondent, either by himself, his agents or servants, from trespassing into, occupying, dealing with, transferring, selling, delineating, leasing out, building upon and or disposing or in any manner whatsoever dealing with all that suit parcel of land No. UASIN GISHU /KIMUMU SCHEME/2460 pending the hearing and determination of the main suit. d. That costs be provided for. 1. The application is premised on the grounds set out on the body of the Notice of Motion and is supported by the affidavit of the 1st Plaintiff/ applicant. In substance, the plaintiff/Applicants contends that they are the legal owners of L.R. No. UASIN GISHU/ KIMUMU SCHEME/2460 having bought the same from Reuben Kamau Mbatia through a sale agreement dated 4th April, 2023 and that the defendant/respondent has unlawfully encroached on to their land and begun construction of his house thereon without the applicants’ consent. In the supplementary affidavit sworn on 29th July, 2026 the 1st applicant he averred that there is no evidence that the matter was still pending before the land registrar for determination of a boundary dispute. **Respondent’s case** 1. In response, the defendant/Respondent filed a replying affidavit sworn on 19th May, 2026. He characterizes the application as premature, misconceived and an abuse of the process of the court. He raises, at the threshold, the contention that the application offends section 18(2) of the Land Registration Act, 2012, that the court lacks jurisdiction to entertain this suit and application. The defendant /Respondent further deposes that he is the registered owner of all that parcel of land as LR UASIN GISHU /KIMUMU/2384 measuring approximately 0.101 Ha. having purchased the same from one Paul Kiplagat Maina vide a written agreement dated 14th April, 2015. He further avers that he was duly issued with a title deed on 4th June, 2015. 2. Respondent goes on to depose that his parcel of land arose from the subdivision of LR NO. UASIN GISHU /KIMUMU/747 as shown in the mutation form which he annexed as LLK 3. That the applicants’ land UASIN GISHU/ KIMUMU SCHEME/ 2460 is adjacent to his parcel of land and they share a common boundary. The deponent further averred that all developments undertaken by himself at all times remained within his land, that in 2024 a dispute arose regarding the common boundary between the two parcels of land herein after the 1st applicant/ plaintiff interfered with the boundary fence erected along the common boundary and it was that act of interference which precipitated the present dispute. The dispute was referred to the office of the chief, Chepkoelel location which was escalated to the land registrar Uasin Gish County for boundary determination, the requisite survey fees was paid and the process before the land registrar has not been concluded. **Issues for determination** 1. The principles regulating the grant of a temporary injunction in this jurisdiction are by now firmly settled. The locus classicus remains the decision of the Court of Appeal for East Africa in Giella –Vs- Cassman Brown & Co Ltd [1973] EA 358, where Spry V-P, at page 360, distilled the threefold test in terms which have since been faithfully applied by our courts: "The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, 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." These conditions are conjunctive rather than disjunctive, and the Applicant must surmount each of them sequentially before an injunction can issue. 2. The contours of what constitutes a prima facie case were authoritatively settled by the Court of Appeal in Mrao Limited –Vs First American Bank of Kenya Limited & 2 Others [2003] KLR 125, where Bosire JA observed: "So what is a prima facie case? I would say that in civil cases it is 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." It is at once apparent from this formulation that the threshold, though lower than proof on a balance of probabilities, is nevertheless a real one. A bare assertion of right, unsupported by material that discloses an apparent infringement, will not do. 3. On paragraph 2 of the supporting affidavit the 1st applicant confirms that they are the legal owners of the suit property having purchased the same. It is their contention that the respondent has encroached on to their land and started development and annexed a photograph to that effect. The respondent on the other hand, has annexed a copy of the title deed confirming that he is the registered owner of land parcel UASIN GISHU/KIMUMU/2384 which he avers is adjacent to the applicants'' suit land and they share a common boundary, he annexed the mutation form from which his current piece of land arose from. It is the respondent’s evidence on oath that he has undertaken development on his land and not trespassed though the genesis of the present case is a boundary dispute which started in 2014 and was reported. To support his case, he has filed a letter to the land registrar Uasin Gishu County dated 25th July, 2024 written by the chief of Chepkoelel location, the same was paid for as per the receipt issued, I have however, not seen any summons issued to the affected parties and the proceedings from the land registrar indicating that the exercise was undertaken the respondent’s case is that he is on his land which is distinct from the applicants’. Vide the documents filed by the applicants it is not disputed that they have purchasers’ interest on the suit land however from the letter to the land registrar it seems there is a boundary issue which is yet to be determined. The applicants also do not dispute that they share a common boundary, only that there is no evidence that the matter is still pending before the land registrar. In absence of the report by the land registrar it remains the applicants' words against the respondent. The Applicants ‘case, lacks the unequivocal quality that an application of this nature demands. 4. Since the prima facie case has not been established, the second and third limbs of the test would, strictly, require no consideration. For completeness however, I propose to address them briefly. On the issue of irreparable injury, the applicants attached a photograph which on the face of it shows undeveloped land but on the far end there is a constructed structure, i therefore, do not agree with the applicant's submissions that the applicants are in occupation of the suit property, they have a purchasers’ interest on the land as per the documents annexed but they have not yet taken occupation, at least from the picture they attached themselves. The respondent averred that the constructions being done is on his land, therefore if the applicants’ succeeds at the trial in establishing their title and the want of authority of the persons in occupation, their loss can be measured in conventional terms, the value of the use of the land, mesne profits, and any building erected on their piece of land unlawfully would be removed and/or demolished and made good by an award of damages. 5. Where the second limb is thus answered, the balance of convenience may often resolve itself. On the present facts, that balance tilts decidedly against the Applicants. in absence of any further documentary proof by the applicants, granting the orders sought herein would be premature. By contrast, the refusal of the orders preserves the status quo ante, does no irreversible damage to either side, and allows the substantive suit to be heard and determined on the merits in the ordinary course. 6. On the totality of the foregoing analysis, the Applicant has not surmounted the first hurdle prescribed by Giella –Vs- Cassman Brown (supra), and has, in any event, fallen short on the second and third limbs as well. The upshot of the matter is that the motion dated 6th May 2026 is devoid of merit and it is dismissed with costs. I direct that this matter proceeds for hearing on merit without undue delay. 7. Mention on 14th October, 2026 for compliance. Signed, dated and delivered in Eldoret on this 14th day of august, 2026. M. E. ALIGULA- RM In the presence of: C/A Lepatoiye Applicants: Respondent: