Merit v Gachomo (Environment and Land Case E013 of 2026) [2026] KEELC 5200 (KLR) (22 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC CASE NO. E013 OF 2026** **BETWEEN** **JEFFREY RYAN MERIT. APPLICANT/PLAINTIFF** **VERSUS** **RACHEAL WANGECI GACHOMO RESPONDENT/DEFENDANT** **RULING** 1. The Notice of Motion dated April 17, 2026, requests preservation orders in the form of an injunction and inhibition over Title No. Naromoru Block 2/Muriru/4023, pending the hearing and determination of this suit. 2. The Respondent’s Replying Affidavit refutes the Applicant's contention. 3. The application was canvassed through written submissions. I acknowledge receipt of submissions from counsel for the parties with much appreciation, as they significantly aided the Court in reaching a verdict on the issues raised in the application. 4. The issues for determination by this Court, arising from the materials and submissions by the parties, which I frame, are whether the Applicant has demonstrated that it is entitled to an injunction and an interlocutory injunction pending the hearing and determination of this suit, and who should bear costs. 5. The Application is premised upon the fact that the Applicant contends that he solely financed the acquisition of the suit property. Yet, the Respondent unlawfully and fraudulently caused the same to be registered solely in her name to the exclusion of the Applicant. 6. The Applicant asserts, based on substantiated documentary evidence and the Respondent’s own admissions, that he holds a significant beneficial and equitable interest in the suit property, which warrants urgent protection by this Honourable Court. 7. Conversely, the Respondent avers that the suit property constitutes matrimonial property, was purchased during the pendency of their marriage, and that she contributed significantly, directly or indirectly, toward its purchase. 8. She affirms that the parties herein received legal counsel regarding the ownership of land in Kenya, and that such advice was thoroughly and clearly explained to them. The Applicant comprehended his status as a foreigner, specifically that he is precluded from owning freehold land in Kenya, and was accordingly agreeable to registering the suit property in the name of the Respondent. 9. The Respondent asserts that, because the suit property was acquired during the subsistence of a customary marriage between the Applicant and the Respondent, it qualifies as Matrimonial Property. The Respondent understands that Matrimonial Property cannot be sold, transferred, charged, leased, or encumbered without spousal consent. The Respondent does not intend to sell, transfer, charge, lease, or otherwise alienate or encumber the suit property. The Applicant's claim that the Respondent may sell, transfer, charge, lease, or otherwise alienate or encumber the suit property, thereby defeating the Plaintiff's proprietary and equitable interests, is unfounded, unreasonable, and unjustified. 10. As articulated by the parties, the principles governing the issuance of an interlocutory injunction in Kenya are established in the landmark case **Giella v. Cassman Brown & Co. Ltd [1973] EA 358**: a *prima facie* case with a probability of success, proof of irreparable injury that damages cannot compensate, and the balance of convenience if the Court is in doubt. 11. The three elements necessitate that the Applicant establish a clear and arguable case with a reasonable likelihood of success at trial, indicating that the claim is neither frivolous nor vexatious and involves significant triable issues. The Applicant is required to demonstrate that they will endure harm that cannot be remedied or sufficiently compensated through a standard monetary award (damages) subsequently. Should the initial two assessments leave the Court unconvinced, the judge will evaluate which party experiences greater hardship or inconvenience, contingent upon whether the temporary order is granted or denied. 12. The Court does not attempt to resolve complex factual disputes or make final findings on the merits at this early stage. The main goal of the temporary order is to keep the *status quo* as it was before the dispute began, protecting the subject property pending litigation. 13. The leading authority in this area – as stated - is **Giella v Cassman Brown & Co. Ltd [1973] EA 358**, which serves as the foundational case relied upon by all Kenyan Courts. It mandates a strict three-step test: first, establish a *prima facie* case with a likelihood of success; second, demonstrate irreparable injury; and third, assess the balance of convenience if there is doubt. 14. The case of **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR** is significant because it defines what constitutes a *"prima facie case."* According to this decision, a *prima facie* case means that, from the primary evidence, it shows that a right exists and has been infringed, requiring the Defendant to rebut it. 15. **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR** further clarifies the burden of proof and explains *"irreparable injury."* It states that the Applicant must prove that the harm is substantial, actual, and cannot be compensated financially; otherwise, an injunction is usually denied. The case of **American Cyanamid Co v Ethicon Ltd [1975] AC 396** is also often cited alongside the **Giella Case** (supra) because it addresses the threshold for *"serious triable issues."* It establishes that if a party fails to prove a *prima facie* case on key points, they lose the right to the relief sought. 16. In this matter, the Applicant claims he solely purchased the suit property, but the Respondent has surreptitiously registered it in her name. The Respondent contends that the suit property is matrimonial property and that she directly and indirectly contributed toward its purchase. She further contends that the Applicant is a foreigner and is barred by law from owning a freehold in Kenya, and that he understood this when he allowed her to be registered as the title holder. 17. In this matter, the trust between the parties seems to have reached rock bottom. Given that the Respondent is the sole registered owner of the suit property, the Applicant is apprehensive that, if the property is not inhibited from any further transfer or alienation, he may ultimately lose the property. 18. Applying the principles set forth above, it will be to the benefit of the parties in this litigation that the substratum of the suit property be preserved pending a hearing as follows: 19. **Pending the hearing and determination of this suit, an order of inhibition shall be entered against Title No. Naromoru Block 2/Muriru/4023, prohibiting any dealings therewith until the current suit is heard and determined.** 20. **Pending the hearing and determination of this suit, an order of temporary injunction is hereby issued, restraining the Defendant, whether by herself, her agents, servants, and/or assigns, from selling, transferring, charging, leasing, entering into, or in any manner whatsoever dealing with Title No. Naromoru Block 2/Muriru/4023 until the current suit is heard and determined.** 21. **The costs of this Application be in the cause.** **Dated, signed, and delivered electronically in Nyeri on this 22nd day of July, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Hansen for the Plaintiff/Applicants** **Mr. Mussa for the Defendant/Respondent** **Denis: Court Assistant**