https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3209

Mose & another v Guyo & 2 others (Environment and Land Case E161 of 2025) [2026] KEELC 3209 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3209 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case E161 of 2025 FM Njoroge, J May 20, 2026 Between Edward Motari Mose 1st Plaintiff Anastacia Wanjiru Wahu 2nd Plaintiff and Masudi Nzaka guyo 1st Defendant Juma Gege Guyo 2nd Defendant Omar Abdalla Nzaka 3rd Defendant Ruling 1.The Notice of Motion dated 9th December, 2025 is seeking the following orders:a.………………..Spent;b.That a temporary injunction do issue restraining the Defendants/Respondents, their agents, servants or representatives from selling, alienating, subdividing, constructing upon, trespassing into, evicting, fencing off, blocking access to, or in any way interfering with the Applicants quiet possession, occupation and use of one (1) acre comprised in the 1st Defendant’s undivided share of Title No. Buni/Kisimani/577, pending inter partes hearing and determination of this application;c.That a temporary injunction does issue restraining the Defendants/Respondents, their agents, servants or representatives from selling, alienating, subdividing, constructing upon, trespassing into, evicting, fencing off, blocking access to, or in any way interfering with the Applicant’s quiet possession, occupation and use of one (1) acre comprised in the 1st Defendant’s undivided share of Title No. Buni/Kisimani/577, pending inter partes hearing and determination of the main suit;d.That the Officer Commanding Station (OCS) Rabai Police Station, do ensure compliance and maintenance of peace on the ground;e.That costs of this application be provided for. The Defendants’ Replying Affidavit 2.The application is opposed by the defendants through the sworn affidavit of the second defendant dated 5th February 2026 in which she depones as follows: the title to the suit property is registered in the names of Nzaka Guyo Gege, Mbaji Mzaka Guyo, Juma Gege Guyo, Masudi Nzaka Guyo, and Abdullah Nzaka Omar; that the sale agreement did not capture the other bona fide owners of the land and it is therefore null and void to that extent for want of capacity; that the first defendant cannot execute documents of transfer alone to the exclusion of the second and third defendants who are also co-registered owners; that the second defendant has no legal rights to execute any transfer; that no threat of eviction has been demonstrated; that in any event, the plaintiffs lack in the rights over the suit property. 3.The plaintiffs filed the further affidavit of Edward Motari Mose, the first plaintiff dated 11th February 2026 in which they stated that the authority to act exhibited by the defendant is suspected to be inauthentic; that the second defendant is not privy to the sale agreement dated 9th September 2021 and was not party to the transaction yet he has sworn the replying affidavit; that it was the first defendant who personally sold 1 acre from his undivided share received payment and delivered possession and sanctioned development thereon; that notwithstanding their current denials, all the defendants have acquiesced in the occupation of the land by the plaintiffs from 2021 to 2025 during which no eviction was attempted, no demand to vacate was issued, and no complaint was lodged with the police or the administration and no refund of money paid was ever offered; that the defendants’ conduct, viewed wholistically, is fraudulent and oppressive and unconscionable. Parties Submissions 4.The application was disposed of by way of written submissions. The plaintiffs filed submissions dated 11th February 2026. The defendants filed their submissions dated 13th February 2026. I have considered those submissions in the preparation of this ruling. Analysis And Determination. 5.It is clear from their affidavit evidence that the plaintiffs are in possession of the suit land, hence the suit. They state that they have constructed a permanent residential matrimonial house thereon and made improvements on the land and have been in peaceful and interrupted possession since 2021. These facts are not disputed by the defendants. The defendants do not also dispute that the parties have attempted mediation process between the Chief and the Assistant County Commissioner. 6.The plaintiff's claim seeks the declaration of a constructive trust. In the circumstances of this case, I find that the plaintiffs have established a prima facie case. 7.Also, owing to the great developments they have expressed to have effected on the suit land, including a matrimonial house which is protected under the law, this court finds that in the event they are evicted there from the would suffer irreparable loss especially of their matrimonial home. 8.The plaintiffs have thus satisfied the threshold of an application for interim injunction as set out in Giella V Cassman Brown 1973 EA 358. I therefore find that the application dated 9th December 2025 is merited and the same as granted in terms of prayers no 3 and 4 thereof. The costs of the application shall be in the cause. 9.The plaintiffs shall file their trial bundle duly indexed and paginated within 14 days of this order and the defendants shall find theirs within 14 days of the expiry of the period granted to the plaintiff and this matter shall be mentioned on 24th June 2026 for issuance of a hearing date. DATED, SIGNED AND ISSUED AT MALINDI ON THIS 20TH MAY 2026.MWANGI NJOROGEJUDGE, ELC MALINDI.