https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4013

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCLC CASE NO. E072 OF 2025** **PETERSON MASAI::::::::::::::::::::::::::::::::::::::::::::::::::::1ST PLAINTIFF** **JANUARIES MUTISO::::::::::::::::::::::::::::::::::::::::::::::::2ND PLAINTIFF** **AMOS MUTUNGA:::::::::::::::::::::::::::::::::::::::::::::::::::::3RD PLAINTIFF** **YUSUF ABDIGAEL::::::::::::::::::::::::::::::::::::::::::::::::::::4TH PLAINTIFF** **BENSON MUTISO:::::::::::::::::::::::::::::::::::::::::::::::::::::5TH PLAINTIFF** **MICHAEL KANYENZE::::::::::::::::::::::::::::::::::::::::::::::6TH PLAINTIFF** **ABRIRAHMAN JAMA:::::::::::::::::::::::::::::::::::::::::::::::7TH PLAINTIFF** **NZUKI MAITHYA:::::::::::::::::::::::::::::::::::::::::::::::::::::8TH PLAINTIFF** **JOHN NDETO:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::9TH PLAINTIFF** **FATUMA SHARIF MOHAMED::::::::::::::::::::::::::::::::::10TH PLAINTIFF** **VICTOR MUTHAMA::::::::::::::::::::::::::::::::::::::::::::::::11TH PLAINTIFF** **ELIJAH KODONYO:::::::::::::::::::::::::::::::::::::::::::::::::12TH PLAINTIFF** **OSCAR IGADI::::::::::::::::::::::::::::::::::::::::::::::::::::::::13TH** **PLAINTIFF** **MATHEW MUTISO::::::::::::::::::::::::::::::::::::::::::::::::::14TH PLAINTIFF** **GEORGE MULI KIMEU::::::::::::::::::::::::::::::::::::::::::::15TH PLAINTIFF** **BEATRICE NTHENYA::::::::::::::::::::::::::::::::::::::::::::::16TH PLAINTIFF** **FRANCIS WAMBUA KIMEU:::::::::::::::::::::::::::::::::::::17TH PLAINTIFF** **PHILIP WAMBUA::::::::::::::::::::::::::::::::::::::::::::::::::::18TH PLAINTIFF** **ANDREW MUTINDA NYAMAI:::::::::::::::::::::::::::::::::::19TH PLAINTIFF** **JUDITH KIOKO:::::::::::::::::::::::::::::::::::::::::::::::::::::::20TH PLAINTIFF** **ANDREW NYAMAI MUTUNGA::::::::::::::::::::::::::::::::::21ST PLAINTIFF** **STANLEY NYABUTI NYARANGO::::::::::::::::::::::::::::::22ND PLAINTIFF** **MOFAT NYABUTO GORI:::::::::::::::::::::::::::::::::::::::::23RD PLAINTIFF** **ELIUD MAITHA MUTIE:::::::::::::::::::::::::::::::::::::::::::24TH PLAINTIFF** **SAMSON OKIOGA ONCHIRI::::::::::::::::::::::::::::::::::::25TH PLAINTIFF** **KEBASO NYADIRI::::::::::::::::::::::::::::::::::::::::::::::::::26TH PLAINTIFF** **VERSUS** **KENYA URBAN ROADS AUTHORITY (KURA)::::::::::::1ST DEFENDANT** **CHIEF LAND REGISTRAR (NAIROBI):::::::::::::::::::::::2ND DEFENDANT** **HON. ATTORNEY GENERAL::::::::::::::::::::::::::::::::::3RD DEFENDANT** **RULING** The application is dated 9th June 2025 and is brought under Section 1A, 1B, 3A, of the Civil Procedure Act and Order 40 Rules 1,2,3 & 4 of the Civil Procedure Act, Laws of Kenya seeking the following orders; 1. That this Application be certified urgent and heard ex-parte in the first instance. 2. That pending hearing of this application a temporary injunction order do issue against the 1st Defendant, its servants, agents or anyone claiming to execute their. forcibly notice dated 23rd May 2025 from forcibly evicting or removing the Plaintiffs from their parcels of land leasehold titles, L.R NO(s). 32831, 32832, 32833, 32834, 32835, 32836, 32837, 32837, 32838, 32839, 32840, 32841 & 32842. 3. That pending the hearing and determination of this suit, an injunction order do issue restraining the 1st Defendant, its servants, agents or anyone claiming through them from executing their notice issued dated 23rd May 2025 from forcibly evicting or removing the Plaintiffs from their parcels of land leasehold titles, L.R NO(s). 32831, 32832, 32833, 32834, 32835, 32836, 32837, 32837, 32838, 32839, 32840, 32841 & 32842. 4. That the Defendants be condemned to bear the costs of this Application. It is premised on the annexed affidavit of Beatrice Nthenya and George Muli Kimeu based on the grounds that the Plaintiffs/Applicants are the duly bonafide owners of the said parcels of land with leasehold titles and rights of use hence needs the honourable court's protection. That the said parcels of land were legally acquired and at all material time the Applicants have been on possession and occupation without any dispute from Kenya Urban Roads Authority (KURA). That the said parcels of land are far off from the KURA road and separated by Kenya Power & Lighting Company (KPLC) power line with a way leave of about 25 metres from the KURA road. That the notice issued by KURA is suspect and an act of fraud and corruption perpetuated by the 1st Defendant and should be restrained. That the notice is too short and the 1st Defendant unless restrained by the court order upon expiry may effect its notice and the Plaintiffs/Applicants shall suffer irreparably. This court has considered the application and the submissions therein. The principles of granting temporary injunctions are well settled and are set out in the judicial decision of Giella vs Cassman Brown (1973) EA 358. This position has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of Nguruman Limited vs Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that; *“in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.* *These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”.* Consequently, the Plaintiff ought to, first, establish a prima facie case. In Mrao Ltd vs First American Bank of Kenya Ltd (2003) EKLR the Court of Appeal gave a determination on a prima facie case. The court stated 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 legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”* In support of the application, the Applicant stated that are they are the duly bonafide owners of the said parcels of land with leasehold titles. They attached copies of certificates of titles marked BG1. Secondly, the Plaintiff has to demonstrate that irreparable injury will be occasioned to them if an order of temporary injunction is not granted. The judicial decision of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR provides an explanation for what is meant by irreparable injury and it states; *“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie* *case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.* The Applicant states that the said parcels of land were legally acquired and at all material time the Applicants have been on possession and occupation without any dispute from Kenya Urban Roads Authority (KURA). That the said parcels of land are far off from the KURA road and separated by Kenya Power & Lighting Company (KPLC) power line with a way leave of about 25 meters from the KURA road. Thirdly, the Plaintiff has to demonstrate that the balance of convenience tilts in their favour. In the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) EKLR which defined the concept of balance of convenience as: *‘The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.* *In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”.* The decision of Amir Suleiman vs Amboseli Resort Limited (2004) eKLR where the learned judge offered further elaboration on what is meant by “*balance of convenience*” and stated; *“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”* The Applicants stated that the notice issued by KURA is suspect and an act of fraud and corruption perpetuated by the 1st Defendant and should be restrained. That the notice is too short and the 1st Defendant unless restrained by the court order upon expiry may affect its notice and the Plaintiffs/Applicants shall suffer irreparably. The 1st Respondent submitted that they conducted a boundary survey and identifies the said suit properties as encroaching on a 60 meters of road reserve along Mlolongo – Katani (Quarry Road). Consequently, they issued a public notice on the 23rd May 2023 for those who had encroached on the road reserve to remove structures and vacate within 30 days to give way to the road projects. That the road reserves and power lines wayleaves are public properties and are not available for allocation to individuals. 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 the application is not merited and I dismiss it with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 1ST DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**