https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3933

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. E035 OF 2023** **GEORGE NDIRANGU MORIGI::::::::::::::::::::::PLAINTIFF/APPLICANT** **VERSUS** **NATIONAL LAND COMMISSION:::::::::1ST DEFENDANT/RESPONDENT** **KENYA NATIONAL HIGHWAY AUTHORITY::::::::::::::::::::::::::::::::::::2ND DEFENDANT/RESPONDENT** **CHINA RAILWAY 21ST BUREAU GROUPCOMPANY LIMITED:::::::::::::::::::::::::::::::::::::::::3RD DEFENDANT/RESPONDENT** **RULING** The amended Notice of Motion is dated 6th November 2025 and is brought under Article 40 (1) of the Constitution of Kenya 2010, Section 68 (1) of the Land Registration Act, 2012, Order 40, Rule 1 of the Civil Procedure Rules, 2010 for orders that; 1. That, this application be certified urgent and heard ex-parte at first instance. 2. That, pending the hearing and determination of this application injunction orders do issue restraining the Defendants/Respondents or any other person acting under their authority from interfering, disposing, selling, allocation, constructing, transferring, charging and/or in any way dealings with all that parcel of land known as L.R NO. Athi River /Athi River Block 1/30. 3. That, pending the hearing and determination of this suit injunction orders do issue restraining the Defendants/Respondents or any other person acting under their authority from interfering, disposing, selling, allocation, constructing, transferring, charging and/or in any way dealings with all that parcel of land known as L.R NO. Athi River/Athi River Block 1/30. 4. That, the Officer Commanding Machakos Police Station (OCS) be ordered to provide security to the Plaintiff/Applicant herein and their agents, if need be, while they restrain the Defendants or any other person acting under their authority from interfering, disposing, selling, allocation, constructing, transferring, charging and/or in any way dealing with all the known as L.R NO. Athi River/Athi River Block 1/30, pending the hearing and property determination of this application and suit. 5. That, the Defendants/Respondents be ordered to deposit the full valuation and/or compensation amount assessed at Kshs. 38,087,036/=, or such other amount as this Honourable Court may deem just, in a joint interest-earning account in the names of the advocates for the Plaintiff/Applicant and the Defendants/Respondents, pending the hearing and determination of this suit. 6. That, the Defendants do bear the costs of this application. The application is based on the annexed affidavit of George Ndirangu Morigi and on grounds that the Plaintiff is the owner of all that land known as Athi River/Athi River Block 1/30 measuring 0.8256 Hectares having been registered as such and issued with a title deed on 31st July 2008. That sometime around the year 2017, the 1st Defendant/Respondent herein started a Resettlement Action Plan to compensate individuals whose land would be compulsorily acquisitioned by the Government of Kenya, on behalf of the 2nd and 3rd Defendants, to pave way for construction of the Athi-river- Machakos turn-off section of the Nairobi-Mombasa Road. The suit property herein belonging to the Plaintiff was one of the affected properties. The 1st Defendant/Respondent vide an award notice dated 23rd January 2018 and addressed to the Plaintiff opted to compulsorily acquire a portion of the Plaintiff's land measuring 0.1951 Ha and offered to compensate him with a sum of Kshs. 50,135,036/= Later, in 2018, the Plaintiff received an initial installment of Kshs. 6,000,000/= followed by another installment of Kshs. 6,000,000/= in 2019, totaling to Kshs. 12,000,000/=. Leaving an outstanding balance of Kshs. 38,087,036/=. Despite repeated reminders the 1st Defendant has neglected, ignored and/or refused to remit the outstanding balance of Kshs. 38,087,036/=. In 2022, upon inspecting his land, the Plaintiff discovered that the 2nd and 3rd Defendant had encroached his entire piece of land by constructing a water tunnel with an exit point on his property, causing flooding during the rainy season and rendering the entire parcel of land unusable. That, to this date, the 2nd and 3rd Defendant are still constructing the said road and as a result damaging his property irreparably. They have damped materials for construction on his land further damaging it. The Plaintiff is apprehensive that if the Defendants are not stopped from constructing the said road, the property is likely to be further destroyed irreparably by the Defendants. Therefore, there is need to inhibit any construction of the said road. That further, there is need to stop the 2nd and 3rd Defendants/Respondents either by themselves, their agents or any other persons acting under their authority from constructing the second carriageway of the Athi River-Machakos Turnoff Section of Nairobi Mombasa Road (A109). 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 he is the owner of all that land known as Athi River/Athi River Block 1/30 measuring 0.8256 Hectares having been registered as such and issued with a title deed on 31st July 2008. He attached a certificate of title marked GNM 1. 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 Respondent/Defendant land decided to compulsorily acquire the suit property herein belonging to the Plaintiff and vide an award notice dated 23rd January 2018 and addressed to the Plaintiff opted to compulsorily acquire a portion of the Plaintiff's land measuring 0.1951 Ha and offered to compensate him with a sum of Kshs. 50,135,036/=. That in 2018, the Applicant received an initial installment of Kshs. 6,000,000/= followed by another installment of Kshs. 6,000,000/= in 2019, totaling to Kshs. 12,000,000/=. Leaving an outstanding balance of Kshs. 38,087,036/=. 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 1st and 2nd Defendants/Respondents being Government entities, there is a genuine apprehension that they may delay, frustrate, or refuse to pay the compensation or damages due to the Plaintiff/Applicant should judgment be entered in his favour. That, the 3rd Defendant/Respondent is a foreign contractor, and there is a real danger that if this matter continues to be delayed, the said Defendant may conclude its operations in Kenya and leave the jurisdiction, thereby rendering it impossible for the Plaintiff to execute or recover any decretal sum from it. That it is therefore in the interest of justice and to safeguard the Plaintiff's interests that the assessed compensation or valuation amount be secured by way of deposit in a joint interest earning account in the names of the parties' advocates pending the hearing and determination of this suit. The 2nd Defendant/Respondent stated that the 1st Defendant approved the request by the 2nd Defendant to acquire several parcels including the Applicants’ suit land for the purposes of construction of Second Carriageway of Athi River – Machakos Turnoff Road Project and the Applicant was compensated and they took possession and commenced construction of the works. That the Project Road alignment was revised to reduce the land uptake. That the 2nd Defendant has not encroached on the Applicants unacquired portion of the suit land. I find that it is not disputed that the Applicant’s land was acquired for the said public project and the Applicant was compensated some amount. The 1st and 2nd Defendants/Respondents are public bodies and it has not been shown how they will be unable to compensate the Applicant should he be successful. 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 23RD DAY OF JUNE 2026.** **N.A. MATHEKA** **JUDGE**