https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5031

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC CASE NO. E047 OF 2026** **VICTOR ANTONY ONYANGO KOTONYA................................PLAINTIFF/APPLICANT** **VS** **GEORGE MEITAMEI NANGURAI...............................1ST DEFENDANT/RESPONDENT** **THE LAND REGISTRAR, NGONG...............................2ND DEFENDANT/RESPONDENT** **RULING** ***(In respect of the Plaintiff’s Chamber Summons application dated 23rd March 2026 seeking temporary injunctive relief)*** **Introduction** 1. This ruling is in respect of the Chamber Summons application dated 23rd March 2026, filed by the Plaintiff/Applicant, Victor Antony Onyango Kotonya. The application is brought pursuant to Order 40 Rules 1 and 2 of the Civil Procedure Rules, Sections 1A, 1B, and 3A of the Civil Procedure Act and Articles 40(1 & 3) and 159 of the Constitution of Kenya 2010. 2. In the said application the Plaintiff/Applicant seeks the following orders: 3. SPENT 4. That this Honourable Court be pleased to grant a temporary injunction restraining the Defendants, their agents, servants, and/or any person acting on their behalf from entering, trespassing upon, destroying structures on, altering or in any way interfering with the Plaintiff's quiet possession and enjoyment of all that parcel of land known as Land Reference Number NGONG/NGONG/58120, situated in Kerarapon, Kajiado North, pending the hearing and determination of this application and/or the suit. 5. That pending the hearing and determination of this suit, the Defendants, their agents, servants and/or any person acting on their behalf be restrained from undertaking, participating in, or causing to be undertaken any boundary ascertainment, survey, beacon placement, or related process regarding parcel number NGONG/NGONG/58120. 6. That this Honourable Court be pleased to grant a temporary injunction restraining the Defendants, their agents, servants, and/or any person acting on their behalf from issuing, conducting, or facilitating any boundary ascertainment, survey, or related process affecting Land Reference Number NGONG/NGONG/58120 without the Plaintiff's knowledge or consent, pending the hearing and determination of this application and/or the suit. 7. That costs of this application be provided for. 8. That the Court grants any other order it may deem fit. 9. The application is grounded on the averment that the Plaintiff purchased the suit property from the 1st Defendant in 2012 for Kshs. 13,500,000 and has since remained in peaceful, uninterrupted possession. The Plaintiff contends that the 1st Defendant entered into the sale agreement with full knowledge of the property's state and is estopped from disputing it, as the acreage has consistently remained 0.40 hectares across all records, including the Official Search dated 19th March 2026. Following baseless claims made in 2022 regarding the land size, the 1st Defendant allegedly dispatched individuals on or about December 2025 who forcefully destroyed the Plaintiff's gate, perimeter fence, and other structures. These acts of trespass were reported to the Kerarapon Police Post under OB No. 08/29/DEC/2025, with investigations currently ongoing. 10. Aggravating the dispute, the Plaintiff was recently served with a Notice of Intention to Ascertain and Fix Boundaries, scheduling a meeting for 1st April 2026. This notice was issued under the 2nd Defendant's authority without prior notification or consultation with the Plaintiff. Consequently, the Plaintiff asserts that the Defendants' actions violate his constitutional right to property under Article 40 of the Constitution of Kenya, warranting the court's intervention to prevent irreparable loss and preserve the status quo. 11. The application is supported by the Affidavit of Victor Anthony Onyango Kotonya, sworn on 23rd March 2026. The supporting affidavit relies on various annexed documentary evidence, including the 2012 Agreement for Sale (VAO-1), corresponding Title Deeds (VAO-2 and VAO-3), an Official Search (VAO-4), adverse correspondence dated 3rd June 2022 (VAO-5), photographic and video evidence of the property destruction (VAO-6 and VAO-7), the formal police OB extract (VAO-8), and the contested Notice of Intention to Ascertain and Fix Boundaries (VAO-9). 12. In opposition to the application, the 1st Defendant filed a Replying Affidavit sworn on 8th April 2026. While conceding to the sale of the suit property to the Plaintiff, the 1st Defendant contests the application on the premise that the Plaintiff has unlawfully encroached upon his adjacent parcel, NGONG/NGONG/58119, particularly through the construction of a perimeter fence. The 1st Defendant asserts that any actions taken on the ground were lawful assertions of his proprietary rights within the context of an ongoing boundary dispute, vehemently refuting allegations of unlawful or forceful destruction of the Plaintiff's structures. Fundamentally, the 1st Defendant challenges the jurisdiction of this Court, contending that the Plaintiff has improperly framed a technical boundary dispute as a claim for trespass to derail the mandatory statutory procedures under Sections 18 and 19 of the Land Registration Act, 2012. Consequently, he maintains that the suit is premature, an abuse of the court process, and should be exclusively handled by the Land Registrar. 13. In a rejoinder, the Plaintiff filed a Supplementary Affidavit sworn in May 2026, categorically denying the existence of a legitimate boundary dispute. The Plaintiff underscores that the 1st Defendant has raised these encroachment claims a full decade after the execution of the sale agreement, notably without adducing evidentiary proof of ownership over parcel NGONG/NGONG/58119 or demonstrating the alleged encroachment. Furthermore, the Plaintiff highlights the 1st Defendant's own admission to destroying the structures, characterizing these actions as an unorthodox infringement of his constitutional right to property under Article 40. 14. Crucially, the Plaintiff challenges the validity of the Notice of Intention to Ascertain and Fix Boundaries (VAO-9), pointing out that the document references an entirely different title number (NGONG/NGONG/108676), lacks necessary dates and signatures, and is alleged to be a forgery. The Plaintiff reiterates that the suit principally seeks injunctive relief to protect against trespass, rather than the resolution of a boundary dispute, especially since he has never lodged a formal complaint nor been officially summoned for a hearing by the 2nd Defendant as required by law. 15. The State merely entered appearance and elected not to file any pleadings in response to the Plaintiff's application. **Directions** 1. The application was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. **Issues for determination** 1. I have carefully considered the Plaintiff's Chamber Summons application dated 23rd March 2026, the Supporting Affidavit together with the annexures thereto, the Replying Affidavit sworn by the 1st Defendant on 8th April 2026, the Plaintiff's Supplementary Affidavit, the written submissions filed by the parties, and the applicable law. 2. From the pleadings and submissions, the issues arising for determination are: 3. ***Whether this Court has jurisdiction to entertain the Plaintiff's application in light of Sections 18 and 19 of the Land Registration Act, 2012;*** 4. ***Whether the Plaintiff has satisfied the conditions for grant of a temporary injunction; and*** 5. ***Who should bear the costs of the application.*** **Analysis and Determination** ### **i. Whether this Court has jurisdiction** 1. The 1st Defendant contends that the dispute before the Court is, in substance, a boundary dispute and that this Court lacks jurisdiction by virtue of Sections 18 and 19 of the Land Registration Act, 2012. Section 18(2) of the Land Registration Act provides: ***"The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section."*** 1. Section 19(1) of the Act further provides: ***"If the Registrar considers it desirable to indicate on a filed plan approved by the office or authority responsible for the survey of land, or otherwise to define in the register, the precise position of the boundaries of a parcel or any parts thereof, or if an interested person has made an application to the Registrar, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and fix the boundaries."*** 1. In ***Reuben Kioko Mutyaene v Hellen Kiunga Miriti & 4 others; Ntalala Eric Mutura & another (Interested Parties) [2021] KEELC 3268 (KLR),*** the Court observed: ***"Section 18(2) of the Land Registration Act provides in mandatory terms that the dispute should be submitted to the Land Registrar."*** 1. The Court further stated: ***"Under Section 19 of the Land Registration Act, 2012, the duty to fix boundaries to registered land is vested in the Land Registrar."*** 1. The rationale underlying these provisions is that technical disputes concerning the ascertainment and fixing of boundaries fall within the primary jurisdiction of the Land Registrar. 2. The 1st Defendant further submitted that the discrepancies appearing in some of the parcel numbers cited in his pleadings and correspondence were merely inadvertent clerical errors which neither altered the substance of the dispute nor occasioned prejudice to the Plaintiff. According to the 1st Defendant, the dispute has consistently related to the common boundary between the Plaintiff's parcel and the adjoining parcel retained by the 1st Defendant and should therefore proceed before the Land Registrar in accordance with Sections 18 and 19 of the Land Registration Act. 3. I have considered that explanation. Whether the discrepancies were merely clerical or otherwise is a matter that may ultimately be clarified during the hearing of the suit. However, at this interlocutory stage, the explanation does not alter the nature of the Plaintiff's pleaded cause of action. It is trite that jurisdiction is determined from the pleadings and the reliefs sought rather than from the characterization advanced by a party in defence. 4. In the present matter, the Plaintiff's complaint extends beyond a contest over the precise location of a common boundary. The Plaintiff alleges that despite purchasing parcel number NGONG/NGONG/58120 from the 1st Defendant in 2012 and remaining in peaceful occupation thereof, the 1st Defendant unlawfully entered the suit property, destroyed the Plaintiff's gate, perimeter fence and other structures, and continues to threaten interference with his quiet possession and enjoyment of the property. 5. The Environment and Land Court derives jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act to hear and determine disputes relating to title, occupation, use and trespass to land. 6. Although the issue of the common boundary may ultimately require technical ascertainment by the Land Registrar pursuant to Sections 18 and 19 of the Land Registration Act, the Plaintiff has pleaded an independent cause of action founded upon alleged trespass and infringement of proprietary rights. The existence of the statutory boundary ascertainment process does not, in the circumstances of this application, deprive this Court of jurisdiction to grant appropriate interim relief for the preservation of the subject matter pending the hearing and determination of the suit. 7. Accordingly, I am satisfied that this Court has jurisdiction to entertain the present application. ### **ii. Whether the Plaintiff has satisfied the conditions for grant of a temporary injunction** 1. The principles governing the grant of interlocutory injunctions are well settled. In ***Giella v Cassman Brown & Co. Ltd [1973] EA 358***, the Court held: ***"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."*** 1. These principles have consistently been applied by Kenyan courts. Further, in ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125,*** Bosire JA defined a prima facie case 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 Plaintiff has exhibited a Sale Agreement evidencing his purchase of parcel number NGONG/NGONG/58120 from the 1st Defendant in 2012, title documents relating to the suit property, and an Official Search confirming his registration as proprietor. The 1st Defendant himself does not dispute having sold the suit property to the Plaintiff. 2. Although the 1st Defendant alleges that the Plaintiff has encroached upon parcel number NGONG/NGONG/58119, no survey report, mutation records or other technical evidence demonstrating the alleged encroachment has been placed before the Court at this interlocutory stage. 3. The 1st Defendant further submitted that no prima facie case has been established because the Plaintiff's allegation of trespass cannot be determined before the Land Registrar first ascertains the common boundary between the adjoining parcels. Reliance was placed on ***Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR and Azzuri Limited v Pink Properties Limited [2017] eKLR***. 4. I have carefully considered those submissions. There can be no dispute that where the precise location of a common boundary is contested, the Land Registration Act vests the Land Registrar with the statutory mandate to ascertain and fix such boundary. However, the existence of that statutory process does not preclude this Court from determining whether the material presently before it discloses an arguable proprietary right deserving interim protection. At this interlocutory stage, the Court is not required to conclusively determine whether trespass has occurred or where the precise boundary lies. Those are matters reserved for trial and, where necessary, the statutory processes contemplated under the Land Registration Act. 5. On the other hand, the Plaintiff has produced photographs, videos and a police occurrence book extract evidencing a complaint regarding the alleged destruction of structures. Without making definitive findings on the contested facts, I am satisfied that the Plaintiff has demonstrated an arguable proprietary right which has allegedly been infringed and has therefore established a prima facie case with a probability of success within the meaning of ***Giella v Cassman Brown*** *and* ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others***. 6. Article 40(1) of the Constitution provides: *"Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—(a) of any description; and (b) in any part of Kenya."* 1. The Plaintiff is in possession of the suit property and alleges continued threats of interference and destruction. 2. Land is unique and no two parcels can be said to be identical. Continued interference with occupation and possession of land often occasions injury incapable of precise monetary quantification. If the alleged acts of trespass, destruction of structures or unilateral interference continue pending trial, the Plaintiff may suffer prejudice that cannot adequately be remedied through damages alone. I am therefore satisfied that the Plaintiff has demonstrated the likelihood of irreparable injury. 3. The material before the Court indicates that the Plaintiff has been in possession of the suit property since purchasing it in 2012. Preserving that possession pending the hearing of the suit would occasion less prejudice than permitting acts capable of altering the physical state of the property before the substantive issues are determined. 4. I have also considered the 1st Defendant's submission that the statutory boundary ascertainment process ought to proceed unhindered. In my respectful view, the interim orders sought do not impede the lawful exercise of the Land Registrar's statutory mandate. Rather, they merely restrain unilateral acts capable of changing the status quo pending the hearing of the suit. Nothing in these orders prevents the Land Registrar from undertaking any boundary ascertainment or fixing of boundaries strictly in accordance with Sections 18 and 19 of the Land Registration Act after issuing the requisite notices and according all affected parties an opportunity to be heard.Rule 40 of the Land Registration (General) Regulations, provides an elaborate procedure for re-establishing a missing boundary or ascertainment of a boundary in dispute. 5. Accordingly, the balance of convenience tilts in favour of preserving the existing state of affairs pending the hearing and determination of the suit. ### **iii. Costs** 1. Costs ordinarily follow the event. However, given the nature of the dispute involving parties who once transacted over the same property, and considering that the substantive issues remain unresolved, I am of the view that the costs of this application shall abide the outcome of the main suit. 2. In the end result, I find that the Plaintiff's Chamber Summons application dated 23rd March 2026 is merited and I make the following orders: 3. A temporary injunction is hereby issued restraining the Defendants, their agents, servants and/or any person acting on their behalf from entering, trespassing upon, destroying structures on, altering or in any manner interfering with the Plaintiff's quiet possession and enjoyment of Land Parcel Number **NGONG/NGONG/58120** pending the hearing and determination of this suit. 4. Pending the hearing and determination of this suit, the Defendants, their agents, servants and/or any person acting on their behalf are restrained from undertaking or facilitating any unilateral boundary ascertainment, survey, beacon placement or related process affecting Land Parcel Number **NGONG/NGONG/58120** otherwise than in strict compliance with Sections 18 and 19 of the Land Registration Act and Rule 40 of the Land Registration (General) Regulations and upon due notice to all affected parties. 5. For the avoidance of doubt, nothing in this order shall preclude the Land Registrar from lawfully exercising his statutory mandate in accordance with the Land Registration Act after issuing proper notice and according all affected parties an opportunity to be heard. 6. Costs of the application shall abide the outcome of the main suit. **It is so ordered.** **Dated, Signed and Delivered at Kajiado Virtually this 31st Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Muthee for the 1st Defendant/Respondent N/A by the Plaintiff/Applicant and the 2nd Defendant Court Assistant: Alex **M.D. MWANGI** **JUDGE**