https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3065

Mugo & another v Kendia (Miscellaneous Application E003 of 2026) [2026] KEELC 3065 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3065 (KLR) Republic of Kenya In the Environment and Land Court at Embu Miscellaneous Application E003 of 2026 EC Cherono, J May 21, 2026 Between Martin Njiru Mugo 1st Applicant Erick Schwilrez 2nd Applicant and Bernard Nyaga Kendia Respondent Ruling 1.The Applicants moved this Court vide a Notice of Motion Application dated 4th February 2026 brought under certificate of urgency seeking principally orders of status quo and temporary injunction restraining the Respondent from evicting them from land parcel No. Evurore/Nthambu/2648 pending the hearing and determination of this Application and pending the determination of Embu High Court Criminal Appeal No. E054 of 2025; Martin Njiru Mugo & Erick Schwilrez –vs– ODPP. 2.The Application is premised on the grounds appearing on its face and the supporting affidavit sworn by the 1st Applicant. The Applicants contend that they have occupied the suit property since childhood; that the land belonged to their parents; that they have extensively developed the same and reside thereon together with their families. They aver that the Respondent fraudulently procured registration of the suit property in his name and thereafter lodged a complaint leading to their prosecution in Siakago Criminal Case No. E071 of 2025 for the offence of forcible detainer. They state that following their conviction in the said case, they lodged an appeal being Embu High Court Criminal Appeal No. E054 of 2025 and fear eviction before the appeal is heard and determined. 3.The Application was opposed through a Replying Affidavit sworn by the Respondent on 14th February 2026. The Respondent raised a preliminary objection on jurisdiction contending that the suit property is situate within Mbeere North Sub-County and falls within the territorial and pecuniary jurisdiction of the Environment and Land Court at Siakago. He further deposed that he is the registered proprietor of the suit property and annexed a copy of title deed. He denied threatening any unlawful eviction and stated that any notice issued to the Applicants was lawful and pursuant to Section 152E of the Land Act. He further contended that the Applicants had failed to establish a prima facie case to warrant grant of injunctive orders. 4.The parties canvassed the Application by way of written submissions which this Court has considered together with the pleadings and authorities cited. 5.The issues arising for determination are;1.Whether this Court has jurisdiction to entertain the Application.2.Whether the Applicants have met the threshold for grant of orders of status quo and temporary injunction. 6.On the issue of jurisdiction, the Respondent contends that this Court lacks territorial jurisdiction since the suit property is situated within Mbeere North Sub-County under the jurisdiction of the Environment and Land Court at Siakago. 7.Jurisdiction is indeed everything as was held in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. However, the objection raised herein is one relating to territorial jurisdiction and not substantive jurisdiction donated by the Constitution or statute. 8.Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act confer upon the Environment and Land Court jurisdiction to hear and determine disputes relating to the environment and the use, occupation and title to land. The Environment and Land Court is a superior court of record with countrywide and unlimited jurisdiction in matters falling within its constitutional and statutory mandate. The establishment of various stations of the Court is primarily for administrative convenience and case management. 9.Whereas Section 12 of the Civil Procedure Act provides that suits relating to immovable property ought to be filed where the property is situate, that provision does not oust the jurisdiction of a duly constituted Environment and Land Court station. At most, it concerns venue and convenience. No prejudice has been demonstrated by the Respondent that would warrant striking out the suit on that ground alone. Consequently, I find that this Court is properly seized of jurisdiction to entertain the present Application. 10.On whether the Applicants have satisfied the conditions for grant of interlocutory injunction, the applicable principles are well settled in Giella v Cassman Brown & Co. Ltd and reiterated in Nguruman Limited v Jan Bonde Nielsen & 2 Others. The Applicants must establish a prima facie case with a probability of success, demonstrate that they stand to suffer irreparable harm incapable of compensation by damages and, where in doubt, the Court determines the matter on a balance of convenience. 11.The Applicants admit that the Respondent is the registered proprietor of the suit property. The Respondent has exhibited a title deed in respect of land parcel No. Evurore/Nthambu/2648. The Applicants on the other hand claim ancestral occupation and allege fraud in the acquisition of title. However, no material has been placed before this Court at this interlocutory stage to substantiate the allegations of fraud or to demonstrate any recognizable legal interest over the suit property. 12.Further, the Applicants were convicted in Siakago Criminal Case No. E071 of 2025 for the offence of forcible detainer. Although they have lodged an appeal against the conviction, the pendency of a criminal appeal does not by itself confer proprietary rights upon them nor does it operate as an automatic stay against the registered proprietor’s exercise of rights over the land. 13.Nonetheless, the Court also takes cognizance of the Applicants’ assertion that they have been in occupation of the suit property for a long period together with their families. Eviction from residential land is a grave matter with far-reaching consequences. The Respondent has also indicated that the eviction process is being undertaken pursuant to Section 152E of the Land Act which prescribes a lawful procedure for eviction. 14.In the circumstances of this case, and in order to preserve peace and prevent actions that may render the pending proceedings nugatory, this Court finds it appropriate to preserve the prevailing state of affairs pending the filing and determination of a substantive suit by the Applicants ventilating their claim over the suit property. 15.Accordingly, the Court makes the following orders;1.An order of status quo is hereby issued preserving the current occupation and possession of land parcel No. Evurore/Nthambu/2648 pending the hearing and determination of this matter and/or further orders of the Court.2.For avoidance of doubt, the Respondent shall not evict the Applicants otherwise than in strict compliance with the provisions of Sections 152A to 152G of the Land Act and any applicable court process.3.The Applicants shall within thirty (30) days from the date hereof file an appropriate substantive suit for determination of their claim over the suit property, failing which the orders granted herein shall automatically lapse.4.Costs of the Application shall abide the outcome of the substantive suit.It is so ordered. DATED, SIGNED AND DELIVERED AT EMBU THIS 21ST DAY OF May, 2026.HON E. C CHERONOJUDGE, ELCIn the presence of;1. Mr Wachira for the Appellant2. Respondent present in person3. Ruth – C/A