https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4831

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELCLC E169 OF 2025** **MOSES LEYIOO OLE LENKOKO ............................................... APPLICANT/PLAINTIFF** **AND** **GEORGE NDULA MERITEI .......................................... 1ST RESPONDENT/DEFENDANT** **COUNTY LAND REGISTRAR KAJIADO ................... 2ND RESPONDENT/DEFENDANT** ### **RULING** ***(In respect of the application dated 18th December 2025 seeking temporary injunctive reliefs)*** **Introduction** 1. The matter before this Court for determination is the Applicant's Notice of Motion dated and filed on 18th December 2025. The application is brought pursuant to Rule 3 of the High Court Vacation Rules; Sections 80(1) and 26(1) of the Land Registration Act (No. 3 of 2012); Order 40 Rule 1 of the Civil Procedure Rules 2010; the Constitution of Kenya 2010; and Sections 1A, 1B, and 3A of the Civil Procedure Act. 2. Through the said application, the Applicant seeks the following orders: 3. Spent 4. Spent 5. That this Honorable Court be pleased to restrain by an injunction the respondents, their servants, agents and all persons acting by them or through them from surveying, beaconing selling or offering for sale Land Parcel No. KAJIADO/KAPUTIEI/NORTH-6386 or any part thereof and from digging, depositing building materials, fencing or constructing thereon or erecting any structures thereon during the hearing and determination of this suit. 6. That costs of this application be provided for. 7. The application is premised on the grounds set out on the face of the Motion as well as the supporting affidavit, primarily that the suit property, Kajiado/Kaputiei/North-6386, is a subdivision resultant of Kajiado/Kaputiei/North-5276, which was originally owned by the Applicant. The Applicant avers that he entered into a verbal agreement with the 1st Respondent to carve out ten (10) acres out of the parent title in exchange for 100 acres owned by the 1st Respondent in Namanga, prompting the Applicant to surrender his title deed to the 1st Respondent to facilitate the subdivision. 8. The 1st Respondent, George Ndula Meritei, represented by Pareno Solonka of Solonka & Solonka Advocates LLP, vehemently opposes the application. The opposition is contained in a Replying Affidavit sworn on 8th January 2026. 9. The 1st Respondent urges the Court to dismiss the application with costs, characterising the suit as misconceived, frivolous, vexatious, and an abuse of the court process. The 1st Respondent raises a legal objection that the suit is statutorily time-barred pursuant to Section 7 of the Limitation of Actions Act, Cap 22. It is averred that the right of action accrued no later than 21st April 2004, when the title was closed following sub-division, rendering the 2025 suit more than a decade outside the twelve-year limitation period. 10. Substantively, the 1st Respondent deposes that the suit property was lawfully transferred to him after obtaining the requisite consent from the Kajiado Land Control Board on 18th March 1999. This was followed by the execution of an Instrument of Transfer on 26th March 1999. The property was subsequently transferred to third parties on 2nd April 2002. 11. The 1st Respondent further contends that the application fails to satisfy the established principles for the grant of an interlocutory injunction as set out in ***Giella vs Cassman Brown & Co. Ltd [1973] EA 358***. He asserts that the Applicant has not established a prima facie case, has failed to demonstrate irreparable injury that cannot be compensated by an award of damages, and that the balance of convenience tilts heavily in favour of the 1st Respondent due to the Applicant's failure to assert his alleged rights for over twenty-five years. **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 Notice of Motion dated 18th December 2025, the grounds on its face, the supporting affidavit sworn by the Applicant, the replying affidavit sworn by the 1st Respondent, the rival written submissions filed by the parties, together with the authorities cited therein. The Respondent's submissions principally contend that the suit property has long ceased to exist following subdivision and that the Applicant's claim is hopelessly statute-barred. 2. The singular issue falling for determination at this interlocutory stage is whether the Applicant has satisfied the legal threshold for the grant of a temporary injunction pending the hearing and determination of the suit. **Analysis and Determination** 1. It is now settled law that the principles governing the grant of interlocutory injunctions are those laid down in ***Giella v Cassman Brown & Co. Ltd [1973] EA 358***, as refined by the Court of Appeal in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR***. The applicant must sequentially establish: 2. ***a prima facie case with a probability of success;*** 3. ***that he stands to suffer irreparable injury incapable of compensation by damages if the injunction is withheld; and*** 4. ***if the court is in doubt, that the balance of convenience tilts in his favour.*** 5. The Court of Appeal in***Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR*,** emphatically stated: ***"These are the three pillars on which rests 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."*** 1. The court further cautioned that where an applicant fails to establish a prima facie case, the court need not proceed to consider the remaining limbs. 2. A prima facie case was defined in ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125*,** as: ***"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 Applicant's case is that he originally owned land parcel **Kajiado/Kaputiei/North/5276**, and that pursuant to a verbal land exchange arrangement with the 1st Respondent, he surrendered his title deed solely to facilitate subdivision. He alleges that instead of implementing the agreed exchange, the 1st Respondent fraudulently procured registration of parcel **Kajiado/Kaputiei/North/6386** in his name. 2. On the other hand, the 1st Respondent maintains that the transfer was lawful, supported by the consent of the Land Control Board issued on 18th March 1999, an executed transfer dated 26th March 1999 and subsequent registration. The Respondent further contends that parcel No. **6386** was thereafter transferred to third parties in 2002 before eventually being subdivided in 2004, whereupon the register was permanently closed. 3. At this interlocutory stage, the Court must resist the temptation of making definitive findings on disputed questions of fact. Whether the transfer was procured fraudulently, whether there was indeed a verbal exchange agreement, whether the Land Control Board consent was properly obtained and whether the impugned registration is impeachable under Sections 26 and 80 of the Land Registration Act are matters that require viva voce evidence and full interrogation during trial. 4. Nevertheless, there exists one undisputed fact emerging from the material presently before the Court. The Green Card annexed by the Applicant himself shows that parcel **Kajiado/Kaputiei/North/6386** was subsequently subdivided and the register closed on **21st April 2004**, after transfers had already been effected to third parties. The Respondent's submissions correctly draw attention to this factual position. 5. The legal consequence of closure of a register upon subdivision is that the original parcel ceases to exist as an independent registrable unit. The rights thereafter attach to the resultant subdivisions. Consequently, an injunction directed specifically at preserving parcel No. **Kajiado/Kaputiei/North/6386**, whose register has long been closed, raises serious questions regarding enforceability. Courts do not issue orders in vain. 6. The Court is equally alive to another important consideration. The Applicant seeks orders restraining dealings over parcel No. 6386 only. However, the material before Court indicates that the parcel has already given rise to resultant subdivisions now apparently registered in the names of persons who are not parties to these proceedings. Granting injunctive relief against persons not before Court would offend fundamental principles of natural justice. 7. Further, although the 1st Respondent has urged that the suit is statute-barred under Section 7 of the Limitation of Actions Act, that issue was raised by way of a Preliminary Objection dated 30th January 2026 and the court has already pronounced itself on it.. 8. Taking the material before the court as a whole, this Court is not persuaded that the Applicant has demonstrated a clear and identifiable legal right requiring immediate preservation through an injunction directed at a title that has, on the evidence presently before Court, ceased to exist for over two decades. The Applicant's grievance may ultimately prove meritorious at trial, particularly if fraud is established. However, the present application seeks to preserve property whose legal identity has already been extinguished by subdivision. 9. Accordingly, I find that the Applicant has failed to establish a prima facie case capable of attracting the equitable relief sought. 10. Even assuming, for argument's sake, that a prima facie case had been established, the Applicant would still be required to demonstrate that he stands to suffer injury incapable of being adequately compensated by damages. 11. The Applicant's complaint essentially concerns an alleged fraudulent transfer of land undertaken many years ago. Should the Court eventually find that the impugned transactions were unlawful, the law provides various remedies including cancellation of title where appropriate, rectification of the register under Section 80 of the Land Registration Act, or monetary compensation depending on the circumstances established. 12. More importantly, the parcel sought to be preserved no longer exists in its original form. The Applicant has equally not demonstrated that damages would be an inadequate remedy should he ultimately succeed. 13. The Court of Appeal in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR***, stated: ***"If damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted."*** 1. In the present case, no material has been placed before Court demonstrating any exceptional circumstances warranting departure from that settled principle. 2. Since the Applicant has failed to establish a prima facie case, strictly speaking it becomes unnecessary to consider the balance of convenience. 3. However, were the Court to consider that final limb, it would still find that the balance of convenience favours declining the orders sought. The evidence presently before Court indicates that parcel No. **Kajiado/Kaputiei/North/6386** ceased to exist following subdivision in 2004 and that interests of third parties have since intervened. Those persons are not parties to these proceedings. 4. Granting injunctive orders in respect of a non-existent title would not preserve the status quo; instead, it would introduce uncertainty into proprietary interests that have apparently subsisted for many years without affording the affected proprietors an opportunity to be heard. 5. The balance of convenience therefore favours maintaining the existing status quo pending full hearing of the suit, where all issues concerning fraud, limitation, ownership, rectification of the register and appropriate remedies may be comprehensively determined after production and testing of evidence. 6. The jurisdiction to grant interlocutory injunctions is discretionary and equitable. Such relief is intended to preserve identifiable rights pending trial and not to determine contested proprietary rights conclusively. 7. Having carefully weighed all the material placed before this Court, I am not satisfied that the Applicant has met the threshold established in ***Giella v Cassman Brown & Co. Ltd [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR*** for the grant of a temporary injunction. While the Applicant's allegations of fraud deserve full ventilation at trial, the specific injunctive orders sought cannot properly issue in respect of a parcel whose register was closed upon subdivision over two decades ago. 8. The substantive issues raised in the plaint remain open for determination during the hearing of the suit upon receipt of oral and documentary evidence. 9. Accordingly, the Notice of Motion dated **18th December 2025** is hereby **dismissed**. 10. Given that the dispute raises serious allegations of fraud touching on land ownership which are yet to be substantively determined at trial, and bearing in mind that the Court has refrained from making definitive findings on the merits of the main suit, I consider it appropriate that the parties be afforded an opportunity to ventilate their respective cases without being unduly burdened at this interlocutory stage. 11. Consequently, each party shall bear its own costs of the application. It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 24th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Muriuki for the Plaintiff/Applicant Mr. Pareno for the 1st Defendant/Respondent N/A by the Defendant/Respondent Court Assistant: Alex **M.D. MWANGI** **JUDGE**