https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3924

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCLC CASE NO. 138 OF 2025** **KYUMBULO MUNYWOKI::::::::::::::::::::::::::::::::::::::::::1ST PLAINTIFF** **ALFONSE MUTISYA KYUMBULO:::::::::::::::::::::::::::::::2ND PLAINTIFF** **VERSUS** **MATUNGULU FARMERS COMPANY LIMITED::::::::::1ST DEFENDANT** **JOSHUA MWANTHI MASIKA::::::::::::::::::::::::::::::::::2ND DEFENDANT** **MUIA MUANGE:::::::::::::::::::::::::::::::::::::::::::::::::::::3RD DEFENDANT** **MARGARET MUTUA::::::::::::::::::::::::::::::::::::::::::::::4TH DEFENDANT** **RULING** The application is dated 18th November 2025 and is brought under Order 40 Rule 1(a) and (b) and Section 3 and 3A of the Civil Procedure Rules 2010 Cap 21 Laws of Kenya seeking the following orders; 1. That the application be certified urgent and heard ex parte and its service be dispensed with in the first instance. 2. That this Honourable Court do issue an order of injunction to stop and/or bar and/or prevent the Defendants and/or their agents from entering and/or occupying and/or trespassing or in any other manner interfering with the Plaintiffs quiet possession of Plot No 189 at Matungulu Farmers Company Limited Farm in Ndithini Sub County, Machakos until this application is heard and determined. 3. That this Honourable Court do issue an order of injunction to stop and/or bar and/or prevent the Defendants and/or their agents from entering occupying and/or trespassing or in any other manner interfering with the Plaintiffs quiet possession of Plot No 189 at Matungulu Farmers Company Limited Farm in Ndithini Sub County Machakos until this suit is heard and determined. 4. That OCS Ndithini Police Station, Masinga Sub-County Machakos County do ensure compliance of this orders. 5. That the application be heard inter-parties within 14 days. 6. That cost of this application be provided for. It is premised on the following grounds that the Plaintiff is the lawful share holder of Plot Number 189 Within Matungulu Farmers Company Limited, Ndithini Sub-County. That the Plaintiffs have occupied that plot since the mid 1970's. That the 2nd, 3rd and 4th Defendants in collusion and conspiracy with the 1st Defendant officials have, trespassed in the Plaintiff's portion of land-namely Plot No 189 Matungulu Farmers Company Limited within Ndithini Sub-county, Machakos County and committed acts of wastage. That if the Defendants are left unrestrained the Plaintiff is at risks of losing his plot/land to the 2nd, 3rd and 4th Defendants. This court has considered the application and the supporting affidavit. The Respondents were served but failed to file any response. 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 the Plaintiff is the lawful share holder of Plot Number 189 Within Matungulu Farmers Company Limited, Ndithini Sub-County. He attached a list titled Matungulu Farmers Co. Ltd unpaid survey fees as at 31st December 1985 marked AMK 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 2nd 3rd and 4th Respondents/Defendant conspired and colluded and/or to deprive the Plaintiffs of their share. 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 2nd 3rd and 4th Defendants/Respondents have trespassed into the Plaintiffs portion in share number 189 by tilling, cultivating, clearing bushes and committing other acts of waste annexed and marked AMK 6 are photographs. I find that the documents adduced in support do not establish a prima facie case at this stage. There is no survey to establish trespass and to what extend if at all. 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 no orders as to costs as it was undefended. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 23RD DAY OF JUNE DAY 2026.** **N.A. MATHEKA** **JUDGE**