https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4083

Luvale & another (Suing as the Chairman and Secretary of New Hope Restoration Ministries) v Mumbi & 2 others (Environment and Land Case E603 of 2025) [2026] KEELC 4083 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEELC 4083 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E603 of 2025 CG Mbogo, J July 6, 2026 Between Philip Juma Luvale 1st Plaintiff Benson Muganda 2nd Plaintiff Suing as the Chairman and Secretary of New Hope Restoration Ministries and Hon. Sospeter Githamu Mumbi 1st Defendant Jimmy Kioko Also Known As Bilal 2nd Defendant Mohamed Adani 3rd Defendant Ruling 1.Before this court for determination is the notice of motion dated 1st December, 2025 filed by the plaintiff/applicant and it is expressed to be brought under Sections 1A,1B and 3A of the Civil Procedure Act, Order 22 Rule 52, Order 51 Rule 1 & 3 of the Civil Procedure Rules, seeking the following orders:-1.Spent.2.That pending the hearing and determination of this application, this honourable court be pleased to issue a temporary injunction restraining the defendants/respondents by themselves, their agents, and or servants and or any other person from evicting, threatening to evict, trespassing and/or interfering in any other way all that parcel of land known as Nairobi/Block 138/60, situated in Lumumba Drive, Roysambu within Nairobi County.3.That pending the hearing and determination of this suit, this honourable court be pleased to issue a temporary injunction restraining the defendants/respondents by themselves, their agents, and or servants and or any other person from evicting, threatening to evict, trespassing and/or interfering in any other way all that parcel of land known as Nairobi/Block 138/60, situated in Lumumba Drive, Roysambu within Nairobi County.4.That the OCS Kasarani police station do enforce the orders granted herein.5.That the cost of this application be provided for. 2.The application is premised on the grounds inter alia that the 1st defendant/respondent issued the plaintiff/applicant with an illegal 60 days eviction notice. The application is supported by the affidavit of Philip Juma Luvale, the chairman of the plaintiff/applicant sworn on even date. The plaintiff/applicant deposed that on the 31st of October 2025, the 1st defendant/respondent issued him with a 60 days’ notice to vacate the parcel of land known as Nairobi/Block 138/60, situated in Lumumba Drive, also referred to as the suit property. 3.On the history of the suit property, the plaintiff/applicant deposed that on 6th May 2016, they applied for an allocation of land to the chairman of the National Land Commission, and the same was approved on 28th October, 2016 by Nairobi City County. On or about 31st March, 2021 the National Land Commission issued a notice of intention to allocate the suit property to the plaintiff/applicant in the standard newspaper, and there being no objection, they were issued with a letter of allotment on 10th June, 2021. 4.It was further deposed that the letter of allotment issued to the plaintiff/applicant was conditional only to use the land for educational purposes under clause 4 of the special conditions. In compliance with the special condition of the letter of allotment, the plaintiff/applicant deposed that they registered a school known as Lumumba Drive Christian School and opened a nursery school on the suit property. However, that upon being issued with the letter of allotment, the 1st defendant/respondent has been issuing threats to close the nursery school and ordered them to vacate the suit property, stating the documents in possession of the applicant are all a forged and fake. 5.The plaintiff/applicant deposed that in making good their threats, the 1st defendant/respondent sent the 2nd and 3rd defendants/respondents to demolish the property, in an attempt to evict them. He deponed that they reported the matter to Kasarani police station. 6.The application was opposed vide the affidavit of the 1st defendant/respondent, the member of County Assembly Roysambu ward, sworn on 11th January, 2026. He deposed that the letter dated 31st October, 2025 was to make the plaintiff/applicant aware that the suit property belonged to the public and was set aside for the construction of an early childhood education centre, and that the same was allocated to the plaintiff/applicant unprocedurally as it was not available for sale from the onset. 7.The 1st defendant/respondent contended that he is protecting the interests of the plaintiff/applicant by preventing them from developing a public utility which may in the long run result into huge cost, and further protecting the interests of the people of Roysambu to ensure that a public utility remains as such. He deposed that the letter of no objection dated 28th October, 2016 was not issued by the county executive committee member for lands as is required under Section 12(1) of the Land Act and was instead unprocedurally signed by the county secretary. He averred that this clearly shows that the allocation of the subject public utility was null and void from the initial stages. 8.The application was further opposed by the replying affidavit of the 3rd defendant/respondent sworn on 27th January, 2026 on his own behalf and on behalf of the 2nd defendant/respondent. The 3rd defendant/respondent deposed that he is a complete stranger to the averments made by the plaintiff/applicant. He also denied demolishing the developments on the suit property. Further, he deposed that he is aware that suit property is public land, having being set aside by Marurui Farmers Limited for use by the residents and children of Roysambu ward. 9.The application was canvassed through written submissions. The plaintiffs/applicants filed their written submissions dated 3rd March, 2026. The 1st defendant/respondent filed undated written submissions. By the time of writing this ruling, the 2nd and 3rd defendants/respondents had not filed their written submissions. 10.I have considered the application, the replies thereof and the written submissions filed. The issue for determination is whether the orders of injunction ought to issue pending the final determination of the suit. 11.Order 40 Rule 1(a) of the Civil Procedure Rules encompasses the provision for temporary injunctions and provides 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; or……..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.” 12.The conditions set for consideration in granting an injunction are now well settled in the case of Giella vs Cassman Brown & Company Limited (1973) E A 358, where the court expressed itself on the conditions that a party must satisfy for the court to grant an interlocutory injunction:-“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.” 13.On whether the plaintiff/applicant has established a prima facie case, the Court of Appeal in Mrao Ltd V First American Bank Of Kenya Limited And 2 Others [2003] eKLR stated as follows:-“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 to call for an explanation or rebuttal from the latter.” 14.Similarly, in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR the Court of Appeal stated that:-“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation.” 15.From the material placed before court, the plaintiff/applicant has established a prima facie land right by exhibiting the letter of allotment dated 10th June, 2021 issued in its name, New Hope Restoration Ministries. The same is supported by a further letter from the National Land Commission dated 21st July, 2023 confirming the authenticity of the letter. While the defendants/respondents contend the legality of the said letter, this remains an issue that can only be fully interrogated at the main hearing and at the determination of the suit. 16.Further, I note that the notice to vacate dated 31st October, 2025 was issued by the 1st defendant/respondent in his personal capacity, as the member of County Assembly representing Roysambu ward. The said notice did not follow the laid down procedure of eviction as prescribed by the Land Act Cap 280 and the National Land Commission Guidelines. There is no evidence that the same was published in the Kenya Gazette as required, neither did the 1st defendant/respondent obtain a valid court order. Thus, as of yet, the 1st defendant/respondent did not have any legal right to evict the plaintiff/applicant from the suit property, much less to demolish the structures thereon. 17.The second consideration in granting a temporary injunction is that the applicant must demonstrate that they will suffer irreparable harm that is incapable of being compensated by damages. The plaintiff/applicant argued that if the orders sought are not granted, the same will lead to interference by the defendants/respondents, which will disrupt the operation of the nursery school and may lead to destruction of structures and interruption of learning activities for children. 18.Warsame, J(as he then was) found that damages are not always capable of undoing the harm caused in the case of Joseph Siro Mosioma v. Housing Finance Company of Kenya & 3 Others [2008] eKLR and held as follows:“On my part let me restate that damages is not automatic remedy when deciding whether to grant an injunction or not. Damages is not and cannot be a substitute for the loss, which is occasioned by a clear breach of the law. In any case the financial strength of a party is not always a factor to refuse an injunction. More so a party cannot be condemned to take damages in lieu of his crystallized right which can be protected by an order of injunction.” 19.Having considered the averments by the plaintiff/applicant, and if say the suit is determined in the plaintiff’s favour, then any demolition or eviction from the suit property will amount to irreparable harm. It is therefore evident that the balance of convenience lies in favour of the plaintiff/applicant. 20.It is for the above reasons that the court finds merit in the notice of motion dated 1st December, 2025 and it is allowed in the following terms:-i.A temporary order of injunction is hereby issued pending the hearing and determination of this suit, restraining the defendants/respondents by themselves, their agents, and or servants and or any other person from evicting, threatening to evict, trespassing and/or interfering in any other way all that parcel of land known as Nairobi/Block 138/60, situated in Lumumba Drive, Roysambu within Nairobi County.ii.The OCS Kasarani police station is hereby directed to ensure compliance with order (i) above.iii.Costs to be 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 assistantMr. Juma for the Plaintiff/ApplicantMr. Omondi holding brief for Mrs. Kahindi for the 1st Defendant/RespondentMs. Kaberia for the 2nd & 3rd Defendants and the Interested Party