https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3057

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC CASE NO. E184 OF 2024** **ELENA NJOKI MBUGUA …………………………………………… PLAINTIFF** **=VERSUS=** **EMMA WAIRIMU MWANIKI …………………………………… DEFENDANT** **RULING** 1. By a Notice of Motion dated 23rd June 2025, brought under Order 40 Rules 1 and 2, Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and Articles 40, 47, 50, and 159 of the Constitution, the Plaintiff seeks the following orders: 1. ***Spent.*** 2. ***Spent.*** 3. ***Pending the hearing and determination of this suit, this Honourable Court be pleased to issue an order preserving the title to L.R No. NAIROBI/BLOCK/122/288 and restraining DIMKES SACCO from releasing, surrendering, transferring, or in any way dealing with the said title deed without leave of the Court;*** 4. ***The Honourable Court do issue directions requiring DIMKES SACCO to deposit the original title deed for L.R No. NAIROBI/BLOCK/122/288 in court pending the determination of the suit;*** 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Elena Njoki Mbugua, sworn on even date. **THE PLAINTIFF/APPLICANT’S CASE** 1. The Applicant averred that around August 2018, the Defendant approached her for financial assistance to prevent the suit property from being auctioned after defaulting on a loan with the Agricultural Finance Corporation. She explained that the Defendant proposed selling her half of the property for Kshs. 2,000,000/=, and she began paying in instalments from December 2018. 2. She further averred that on 30th October 2019, they formalized their agreement before J. Ngaii Gikonyo Advocates. It was agreed that she would take possession of the portion she paid for, and if the Defendant defaulted on any other loan secured by the property, she would redeem it. All such payments would be considered part of the purchase price for the entire property. 3. She averred that the Defendant later defaulted on a loan owed to DIMKES Sacco, which exposed the suit property at risk of being auctioned. To prevent the sale, she paid a substantial part of the loan, including an initial amount of Kshs. 2,200,000/= and additional sums towards the remaining balance, which had increased to Kshs. 5,450,721.63/=. 4. She stated that they agreed that the property would be transferred into her name once the loan was repaid, and any excess payments would be refunded by the Defendant. She stated that although a balance of approximately Kshs. 400,000/= remained on the loan at the time of filing the suit, it has since been settled, and she had been informed by the Sacco that the title deed was ready for release. 5. The Plaintiff is apprehensive that DIMKES Sacco might release the title to the Defendant, despite having paid the substantial amounts required to redeem the property. She argued that the Defendant had previously misused the title to secure undisclosed loans in breach of their agreement. She contended that the Defendant could charge, sell, or otherwise deal with the property if the title is handed over to her to her detriment. 6. The Plaintiff filed a further affidavit sworn by Samuel Wainana, the Supervisor of the Debt Recovery and Monitoring Unit at DIMKES Sacco Society, in support of the application. The deponent averred that the Defendant had charged L.R. No. Nairobi/Block/122/288 to DIMKES Sacco as security for a loan facility. 7. He further averred that, following repeated defaults by the Defendant, the Sacco issued default notices and commenced the auction process to recover the outstanding loan through realisation of the charged property. 8. He explained that sometime in 2020, both the Plaintiff and the Defendant approached the Sacco and informed it that the Plaintiff had a beneficial interest in the property based on an agreement with the Defendant to assist in clearing the outstanding loan. 9. He averred that the Plaintiff began making payments towards the loan arrears, which had increased to Kshs. 5,450,721.63/=, inclusive of penalties, arrears, and charges. 10. The deponent sought the Court’s guidance regarding the appropriate party to whom the title deed should be transferred, considering the settlement of the loan. **THE DEFENDANT/RESPONDENT’S CASE** 1. The Defendant filed a replying affidavit dated 23rd September 2025 in opposition to the application. She argued that DIMKES Sacco was not a party to the suit and therefore the Court could not issue any order against it without giving it an opportunity to be heard. 2. She asserted that the Plaintiff had failed to disclose DIMKES Sacco’s interest in L.R. No. Nairobi/Block/122/288, and the basis on which the Sacco held the title. She further averred that the application duplicated the Plaintiff’s earlier application dated 6th May, 2024, and was an attempt to obtain the same orders twice. 3. She argued that the application was speculative and lacked evidentiary support, as the Plaintiff had not demonstrated that any outstanding loan concerning the suit property had been settled. She asserted that the Court could not act on unfounded or anticipated fears. 4. She challenged the affidavit sworn by Samuel Wainaina, arguing that the deponent had not demonstrated that he had the authority to swear an affidavit on behalf of the Sacco. 5. She averred that the Plaintiff failed to present any evidence showing that DIMKES Sacco intended to release the title directly to her. She contended that the application was frivolous, vexatious and intended to delay the hearing and determination of the main suit. 6. She contended that the Plaintiff had not demonstrated why the original title deed should be deposited in court, nor established a prima facie case with a probability of success. 7. The application was canvassed by way of written submissions **THE PLAINTIFF/APPLICANT’S SUBMISSIONS** 1. The Plaintiff filed her submissions dated 24th November 2025. 2. On behalf of the Plaintiff, Counsel submitted that the application seeks to preserve the suit property and its title from dealings that could defeat the Plaintiff’s equitable and proprietary interests. 3. Regarding whether the Plaintiff had established a prima facie case, Counsel relied on **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR and Nguruman Limited v Jan Bonde Nielsen & 2 others** **[2014] eKLR** to submit that the Plaintiff had demonstrated an arguable and enforceable right. It was submitted that the Defendant had charged the suit property to DIMKES Sacco, defaulted on the facility, and exposed the property to auction. Counsel argued that the Plaintiff intervened by paying substantial sums exceeding Kshs. 5,450,721.63/=, to redeem the property pursuant to an agreement that the property would thereafter be transferred to her. 4. Counsel further submitted that the agreement between the parties and the payments made by the Plaintiff established a constructive or resulting trust. To support this argument, reliance was placed on **Twambui v Kimani [1995] eKLR** and **Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri [2014] eKLR**. Counsel invoked **Article 40** of the **Constitution** to submit that the Plaintiff would be deprived of her proprietary interest if the title is released to the Defendant. 5. Regarding irreparable harm, Counsel submitted that damages would not be an adequate remedy because the Plaintiff had paid substantial sums to redeem the property. Counsel further submitted that the Plaintiff would suffer irreparable harm if the title is released, as the Defendant could charge, sell or transfer the land to third parties. Counsel argued that such dealings would defeat the substratum of the suit, establish third-party rights, and render any eventual judgment in favour of the Plaintiff nugatory. 6. Counsel submitted that the Plaintiff’s apprehension is not speculative, since the Defendant had previously misused the title by securing undisclosed loans. Counsel further submitted that land is unique and that the threatened loss of the Plaintiff’s equitable interest could not be adequately compensated by damages. 7. Counsel submitted that the balance of convenience favours preserving the title pending the hearing and determination of the suit. Counsel contended that the orders sought would not dispossess the Defendant nor determine ownership, but would merely uphold the status quo. Conversely, the denial of these orders could expose the suit property to potential alienation and render it inaccessible to the Court. 8. In conclusion, Counsel submitted that the Plaintiff had satisfied the principles outlined in **Giella v Cassman Brown & Co. Ltd** and urged the court to allow the application as prayed. **THE DEFENDANT/RESPONDENT’S SUBMISSIONS** 1. The Defendant filed her submissions dated 30th December 2025. 2. On behalf of the Defendant, Counsel submitted that the Court cannot issue orders against a non-party, as doing so would violate its right to a fair hearing under Article 50 of the Constitution and deny it an opportunity to be heard. 3. Counsel further submitted that the Plaintiff had failed to make full and frank disclosure of DIMKES Sacco’s interest in the title and had not demonstrated how that interest would be affected if the orders sought were granted. It was argued that the Plaintiff could not properly seek orders against the Sacco without first joining it to the proceedings. 4. Counsel further submitted that the application replicates the application dated 6th May, 2024, which has already been determined. Counsel argued that the Plaintiff’s recourse, if dissatisfied with the earlier decision, lay in appeal or review. 5. Counsel argued that the application was speculative, unfounded, and lacked supporting evidence to justify the grant of the orders sought. 6. Counsel challenged the affidavit sworn on behalf of DIMKES Sacco, arguing that the deponent had not demonstrated that he was authorised to swear the affidavit on behalf of the Sacco. Counsel pointed out that the deponent did not state that he had the authority to swear the affidavit on behalf of the Sacco. 7. Counsel submitted that the Plaintiff had not met the principles for granting an injunction as established in **Giella v Cassman Brown** and urged the Court to dismiss the application with costs. **ANALYSIS AND DETERMINATION** 1. Having considered the application, the respective affidavits, and the rival submissions, the only issue for determination is whether the Plaintiff has met the threshold for the grant of an injunction. 2. The law governing applications for injunctions is outlined in **Order 40 Rule 1** of the **Civil Procedure Rules,** which provides: "***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.”*** 1. The principles for the grant of an injunction were laid down in the celebrated case of **Giella vs Cassman Brown & Co Ltd 1973 EA 358** as follows: - ***1) Firstly, the Applicant must show a prima facie case with a probability of success.*** ***2) Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages.*** ***3) Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.*** 1. The first issue for determination is whether the Applicant has established a prima facie case with a probability of success. 2. In **Mrao Ltd vs\_First American Bank of Kenya Ltd & 2 Others [2003] eKLR,** the Court of Appeal 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 claims that she acquired an equitable and proprietary interest in L.R. No. Nairobi/Block/122/288 after entering into an agreement with the Defendant to purchase part of the property and making substantial payments towards the Defendant’s loan obligations to prevent the property from being auctioned. She argues that the parties agreed that any payments made towards redeeming the property would form part of the purchase price, and that once the loan was cleared, the property would be transferred to her. 2. The Plaintiff is apprehensive that DIMKES Sacco might release the original title deed to the Defendant, despite making payments to redeem the property. She argued that, if the title is released to the Defendant, she might charge, sell, transfer or otherwise deal with the property in a manner that would defeat her interest and render the suit nugatory. 3. The Defendant argued that the application is incompetent, speculative, and unsupported by evidence. She contends that DIMKES Sacco is not a party to the suit and that no orders can be issued against it without violating the right to be heard. She further argues that the Plaintiff has not demonstrated that the loan has been fully settled, that the Sacco intends to release the title to the Defendant, or that there exists any real threat to justify the orders sought. 4. The Defendant also contends that the application replicates an earlier application dated 6th May 2024 and is therefore res judicata. She challenges the affidavit sworn on behalf of DIMKES Sacco for want of demonstrated authority. 5. The record shows that the Plaintiff had previously filed an application dated 6th May 2025 seeking orders to restrain the Defendant from interfering with the Plaintiff’s possession of Nairobi Block 122/288 and Nairobi Block 141/922, and from creating third-party interests over the properties. By a ruling delivered on 28th May 2025, the Court allowed the application and limited the order restraining interference with the Plaintiff’s possession to a period of one year. 6. The Plaintiff seeks to restrain DIMKES Sacco from releasing, surrendering, transferring or otherwise dealing with the title, and further seeks an order requiring DIMKES Sacco to deposit the original title deed in Court. The plea that the application is res judicata or a mere duplication of the earlier application is not entirely persuasive. Although both applications arise from the same dispute, they seek different reliefs. 7. The orders in this application are directed at DIMKES Sacco, which is not a party to the suit. An injunction is an order in personam. It binds the person against whom it is issued. It follows that, except in exceptional circumstances, a court should not issue coercive orders against a person who has not been joined to the proceedings and has not been given a proper opportunity to be heard. 8. This principle was affirmed by the Court of Appeal in **Pashito Holdings Limited & Another v Paul Nderitu Ndungu & 2 Others [1997] KECA 423 (KLR),** where the Court held that no finding, whether prima facie or final, should be made against a person who has not participated in the proceedings. 9. Similarly, in **Stella Nasimiyu Wangila & another v Raphael Oduro Wanyamah [2016] KEHC 1666 (KLR),** the Court held that: ***“A court cannot adjudicate on issues touching a party or pass judgment against a party who is not a party in a suit.”*** 1. In the matter at hand, the orders sought would directly bind DIMKES Sacco. They would restrain it from releasing the title deed and require it to deposit it in Court. They are substantive and coercive orders against a non-party. 2. The Plaintiff's reliance on an affidavit sworn by Samuel Wainaina, who described himself as a Supervisor in the Debt Recovery and Monitoring Unit of DIMKES Sacco, does not cure the procedural defect resulting from the non-joinder of DIMKES Sacco. 3. In light of the foregoing, I find that the Plaintiff has not established a prima facie case. 4. The conditions outlined in **Giella Vs Cassman Brown Case (Supra)** are to be considered sequentially. In so finding, I am persuaded by the holding in the case of **Nguruman Limited Vs Jan Bonde Nielsen & 2 Others [2014] eKLR** where the Court of Appeal stated as follows: ***“…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 stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… if the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration”.*** 1. Having found that the Applicants have not established a *prima facie* case with a probability of success, it will be immaterial to delve into the other limbs that are to be considered for a grant of a temporary injunction. 2. In **Commercial Finance Co. Ltd vs Afraha Education Society & Others C A Civil Appeal No. 142 of 1999,** the court held that: ***“……the judge should address himself sequentially on the conditions for granting an injunction instead of proceeding straight away to address himself on the third condition because where the Applicant has no registered interest in the land comprised in the title dispute and thereof has not demonstrated that it has a prima facie case with a probability of success, no interlocutory injunction would be available.”*** 1. In the end, I find that the applicationdated 23rd June 2025 is without merit and is hereby dismissed with costs. **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 15TH DAY OF MAY 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**:- Atieno Kanyangi for the Plaintiff Osoro for the Respondent Ahmed – Court assistant