https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4952

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LANDS COURT AT MACHAKOS** **ELCL(OS) NO. E009 OF 2024** **MARTHA NZUYE MWAU::::::::::::::::::::::::::::::::::::::::::::::APPLICANT** **VERSUS** **TERRY ABWAO CHORE::::::::::::::::::::::::::::::::::::::::1ST RESPONDENT** **JUDE MWAYI TUNDO:::::::::::::::::::::::::::::::::::::::::::2ND RESPONDENT** **MAURICE NZIKALI::::::::::::::::::::::::::::::::::::::::::::::3RD RESPONDENT** **ESTATE OF KITHEMBE NZIMBI::::::::::::::::::::::::::::4TH RESPONDENT** **THE REGISTRAR OF LANDS- MACHAKOS::::::::::::::5TH RESPONDENT** **CABINET SECRETARY INTERIOR AND COORDINATION OF NATIONAL GOVT:::::::::::::::::::::::::::::::::::::::::::::::::6TH RESPONDENT** **THE HON. ATTORNEY GENERAL::::::::::::::::::::::::::7TH RESPONDENT** **RULING** The application is dated 25th March 2026 and is brought under Article 40 of the constitution of Kenya, Sections, 38, 41 and 42 of The Land Act No 6 Of 2012, Sections 45 and 46, of the Law of Succession Act, Cap 160, Section 1A, 1B AND 3A of the Civil Procedure Act (cap 21), and, Order 37 Rule 3, Rule 5, Rule 8 and 20 of the Civil Procedure Rules seeking the following orders; 1. That this Honourable Court does certify this Application as very urgent and dispose of it ex-parte in the first instance. 2. That pending the hearing and determination of this application, a temporary Injunction be and is hereby granted, restraining the 1st, and 2nd Defendants their agents, employees or servants or anybody else acting on their behalf from trespassing, plaguing, harassing or in any manner interfering with the quiet possession, ownership, occupation and use of land Reference No. Wamunyu Kambiti/223, by the Applicant, her agents, employees or servants or anybody else acting on their behalf. 3. That an order be and is hereby made, directing the Officer Commanding Station of Wamunyu Police station to enforce the orders of the courts. 4. That pending the hearing and determination of the Originating Summonses, a temporary Injunction be and is hereby granted, restraining the 1st, and 2nd Defendants their agents, employees or servants or anybody else acting on their behalf from trespassing, plaguing, harassing or in any manner interfering with the quiet possession, ownership, occupation and use of land Reference No. Wamunyu Kambiti/223, by the Applicant, her agents, employees or servants or anybody else acting on their behalf 5. That the cost of this application be provided for. The application is based on the following grounds that the Applicant entered into a sale and purchase of a portion land Reference No.Wamunyu Kambiti/223 with Mutune Kinandu and Nzuki Kinandu sons and direct beneficiaries of the estate of Kithembe Nzimbi (Deceased) on or about April,2003 for Kshs 300,000.00. That the Applicant took immediate possession, and occupation of land Reference No. Wamunyu Kambiti/223 after making an initial deposit, Kshs 195,000.00 paid to Mutune Kinandu and Nzuki Kinandu sons of Kithembe Nzimbi (Deceased) between January/ April, 2003. That the Applicant paid the balance of Kshs 105,000 over a period of time as had been agreed, as there was no grant to the estate of Kithembe Nzimbi (Deceased). That the balance of Kshs 105,000 was paid by the Applicant through her husband, Boniface Mwau Muli from 9th December, 2003. That the Applicants husband; Boniface Mwau Muli was retired and sickly and died on 29th December, 2019. That at all material time from April 2003 to 23rd January, 2024 the Applicant has had quiet possession, occupation and use of land Reference No. Wamunyu Kambiti/223. That at all material time from April 2003 to-date there has never been any dispute or interference with the Applicants’ quiet possession, occupation and use of land Reference No. Wamunyu Kambiti/223 by the estate Kithembe Nzimbi (Deceased). That on about 23rd January, 2024 the 1st, 2nd and officer of the 5th Respondent (The Chief Wamunyu location, Kaitha Sub-Location in Machakos County) served the applicant with a trespass notice reference: SK/AGMT/2013/JM dated 23rd January, 2024. That Applicants’ advocates on record, replied to the letter ref: SK/AGMT/2013/JM on the 15th March, 2024 vide ref: GPM/MM-2/03/24. That on the 16th March, 2024, employees, agents or servants of the 1st and 2nd Respondents, partially erected a fence around the portion suit land. That on the 21st March, 2024 the Assistant Chief of Kabiti sub-location summoned the Applicant and her two sons to his office on the 25th March, 2024. That on the 22nd March, 2024, the Chief- Wamunyu location, Kaitha Sub-Location in Machakos County, was directed by the Assistant County Commissioner to serve the Applicant a copy of the sale agreement that was deposited with him together with the tress-pass Notice. That at all material time from April 2003 to 22nd March, 2024 there has never been any notice, information or correspondence, over any sale of land contract between the 1st and 2nd Respondent and the Boniface Mwau Muli. That at all material time from April 2003 to 23rd January, 2024 the Applicant was not aware of any persons by the names of the 1st and 2nd Respondents. That if there existed a valid contract between the 1st and 2nd Respondents and over land Reference No. Wamunyu Kambiti/223 Boniface Mwau Muli, the Applicant was not aware, was not a party and such a claim lies elsewhere, not over the suit land. This court has considered the application and the submissions therein. The issue for determination is whether the Applicant has met the threshold for the grant of a temporary injunction. For an order of injunction to issue, an Applicant must satisfy three conditions set out in the case of Giella vs Cassman Brown (1973) EA 358, namely; establish a prima facie case with a probability of success, irreparable harm that cannot be adequately compensated by an award of damages and if the Court is in doubt, it should decide on a balance of convenience. Order 40 Rule 1 of the Civil Procedure Rules 2010 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 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 orders.* In the case of Rockland Kenya Limited vs Elliot White Miller (1994) eKLR, the court held as follows: *“The object of an interlocutory injunction is to protect the Plaintiff against injury by violation of his legal right for which he could not be adequately compensated in damages recoverable in the action if the matters in dispute were resolved in his favour at the trial. However, his need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal right for which he could not be adequately compensated under the Plaintiff’s undertaking in damages if the subject- matter of the trial was decided in his favour. It is a remedy that is both temporary and discretionary. In cases where the legal rights of the parties depend on facts that are in dispute between them, the evidence available to the Court at the hearing of the application for an interlocutory injunction is given on affidavit and is therefore incomplete as it has not been tested by oral cross-examination. At that stage therefore, it is not the function of the Court to attempt to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations.”* The 1st and 2nd Defendant/Respondent opposed the application vide a replying affidavit dated 15th April 2024. They stated that they bought the suit land on 4th April 2013. They annexed a copy of a sale agreement is between the 1st and 2nd Respondents and Boniface Mwau Muli. That upon purchase they took immediate possession of the property and subsequently erected a fence in 2013. That at the time of the purchase they were aware that the property had been bought sold to Boniface Mwau Muli by representatives of the estate of Kithembe Nzimbi and was still in the latter’s name. Bearing this in mind, I am convinced that there is a risk in granting orders of temporary injunction than not granting them, as I wait to hear the suit on its merits. This is especially so because I have not had opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the current situation on the ground. I have also not had the opportunity to interrogate the annexures therein. In Robert Mugo wa Karanja vs Ecobank (Kenya) Limited & Another (2019) eKLR where the court in deciding on an injunction application stated; *“circumstances for consideration before granting a temporary injunction under order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”* In view of the foregoing, I find that both parties claim ownership through purchase and none has ownership documents. I find that the application is not merited and dismiss it. Parties are advised to comply with order 11 and set down the matter for hearing. Costs to be in the cause. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 29TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**