https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4946

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCL CASE NO. E132 OF 2025** **SAMMY KARIUKI MUNGAI** *(Suing as Administrator of the estate of**MUNGAI NJUGUNA****)*:::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF/APPLICANT** **VERSUS** **JONES KASOLO KITEE::::::::::::::::::::::1ST DEFENDANT/RESPONDENT** **MACHAKOS LAND ADJUDICATION OFFICER *(****Masinga Section)***:::::::::::::::::::::::::::::::::::::::::::::2ND DEFENDANT/RESPONDENT** **THE LAND REGISTRAR, MACHAKOS:::::::::::::::::::::::::::::::::::::3RDDEFENDANT/ RESPONDENT** **HON.ATTORNEY GENERAL:::::::::::::::4TH DEFENDANT/RESPONDENT** **RULING** The application is dated 3rd November 2025 and is brought under Order 40 Rule 1 of the Civil Procedure Rules, section 26 of the Land Adjudication Act, sections 26,79,80 and 86 of the Land Registration Act No, 6 of 2012, Sections 1, 1A, 1B and 3A of the Civil Procedure Act CAP 21 seeking the following orders; 1. That service of this application be dispensed and the same be certified urgent and be heard ex parte in the 1st instance. 2. That pending hearing inter-parties of this application, a temporary injunction do issue restraining the Defendants/Respondents whether by themselves, their agents, servants and/or employees from selling or offering for sale, transferring, charging, leasing, pledging or in any other way alienating or disposing of the property known as Masinga/Masinga/1102. 3. That pending hearing and determination of this suit a temporary injunction do issue restraining the Defendants/Respondents whether by themselves, their agents, servants and/or employees from selling or offering for sale, transferring, charging, leasing, pledging or in any other way alienating or disposing of the property known as Masinga/Masinga/1102. 4. That pending hearing and determination of this suit a, temporary injunction do issue against the 2nd Defendant/Respondent restraining them from making any further entries (save for those relating to this suit) in the register for Masinga/Masinga/1102. 5. That this court does issue such further orders for the preservation of the parcel as to meet the ends of justice. 6. That the costs of this application be in the cause. The application is founded the annexed affidavit of Sammy Mungai Kariuki and grounds that the Plaintiff/Applicant is an administrator of the estate of Mungai Njuguna(deceased) who died on 11th May, 1996 vide letters of administration issued on 14th July, 2004. That at the time of his death the deceased is the lawful landowner of Masinga/Masinga/1102 following adjudication proceedings concluded on 28th April, 1993. That the Plaintiff/Applicant recently discovered that the Defendants/Respondents jointly and severally unlawfully and/or fraudulently altered the adjudication records at the Land Registry by cancelling the name of the deceased (Mungai Njuguna) as the owner of Masinga/Masinga/1102 and inserted the name of the 1st Defendant (Jones Kasolo Kitee) in his place as the owner thereof. That the Plaintiff has learnt that the cancellation was done posthumously based on objection to adjudication record number 28/01 by the 1st Defendant/Respondent in 2006,10 years after the death of the deceased. That, the objection proceedings were done with fraudulent intent being that they were done thirteen years after adjudication was concluded in favour of the deceased (Mungai Njuguna). That through the said fraudulent proceedings the 1st Respondent obtained title and if the state of affairs is left as it is the Defendant/Respondents may sell, waste or otherwise deal in the property in a manner that would adversely affect the Estate of the deceased resulting in irreparable damage. This court has considered the application and the submissions therein. The issue for determination is whether the Applicant has met the threshold for the grant of a temporary injunction. For an order of injunction to issue, an Applicant must satisfy three conditions set out in the case of Giella vs Cassman Brown (1973) EA 358, namely; establish a prima facie case with a probability of success, irreparable harm that cannot be adequately compensated by an award of damages and if the Court is in doubt, it should decide on a balance of convenience. Order 40 Rule 1 of the Civil Procedure Rules 2010 provides as follows: *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.* In the case of Rockland Kenya Limited vs Elliot White Miller (1994) eKLR, the court held as follows: *“The object of an interlocutory injunction is to protect the Plaintiff against injury by violation of his legal right for which he could not be adequately compensated in damages recoverable in the action if the matters in dispute were resolved in his favour at the trial. However, his need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal right for which he could not be adequately compensated under the Plaintiff’s undertaking in damages if the subject- matter of the trial was decided in his favour. It is a remedy that is both temporary and discretionary. In cases where the legal rights of the parties depend on facts that are in dispute between them, the evidence available to the Court at the hearing of the application for an interlocutory injunction is given on affidavit and is therefore incomplete as it has not been tested by oral cross-examination. At that stage therefore, it is not the function of the Court to attempt to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations.”* The Applicant submitted that he is an administrator of the estate of Mungai Njuguna(deceased) who died on 11th May, 1996 vide letters of administration issued on 14th July, 2004 (SKM-1 copy of the letters of administration). That at the time of his death the deceased is the lawful landowner of Masinga/Masinga/1102 following adjudication proceedings concluded on 28th April, 1993. That the Plaintiff/Applicant recently discovered that the Defendants/Respondents jointly and severally unlawfully and/or fraudulently altered the adjudication records at the Land Registry by cancelling the name of the deceased (Mungai Njuguna) as the owner of Masinga/Masinga/1102 and inserted the name of the 1st Defendant (Jones Kasolo Kitee) in his place as the owner (SKM-3 copy of the adjudication record. That the 1st Defendant/Respondent registered the suit land in his name (SKM-$ copy of the green card). Bearing this in mind, I am convinced that there is a risk 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. No other evidence has been adduced to prove ownership. 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 dismiss it. Parties are advised to comply with order 11 and set down the matter for hearing. Costs to be in the cause. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 29TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**