https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4643

**REPUBLIC OF KENYA** **IN THE ENVIRONMENTAL AND LAND COURT** **AT KWALE** **CASE NO. E112 OF 2025** **MARY MUTHEU……………………………..…….…PLAINTIFF/ APPLICANT** * **VERSUS –** **STEFAN WENTZEL…………………………1ST DEFENDANT/RESPONDENT** **DANIEL MWANGI MBOGO T/A NOBLE SECURITY SERVICES LIMITED………………………………………2ND DEFENDANT/RESPONDENT** **ELIJAH MUSILI MAANZO...................3RD DEFENDANT/RESPONDENT** **KOLINE FARMS LIMITED ..................4TH DEFENDANT/RESPONDENT** **MEKAELA ACADEMIES LIMITED.......5TH DEFENDANT/RESPONDENT** **RULING** 1. **Introduction** 2. This Honourable Court is called upon to determine onto two ( 2 ) Notice of Motion applications arising in this matter. The first one is dated 22nd October, 2025 by *Mary Mutheu*, the Plaintiff/Applicant herein, brought under the provisions of Order 40 Rules 1 and 2, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, Laws of Kenya, Article 40 of the Constitution of Kenya, 2010, and all other enabling provisions of the law. In this application, the Plaintiff seeks urgent injunctive relief restraining the Defendants, their agents, servants, or employees from entering, trespassing upon, constructing, interfering with, occupying, or otherwise dealing with her properties known as Kwale/Diani SS/2445 and Kwale/Diani SS/2115, pending the hearing and determination of the suit. 3. The second application is dated 9th December, 2025 by *Elijah Musili Maanzo*, the 3rd Defendant/Applicant herein. It was brought under the provisions of Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, Laws of Kenya, and all other enabling provisions of the law. In that application, the 3rd Defendant sought for a stay of proceedings in this matter pending the hearing and determination of “***ELCJR Case No. E010 of 2025 – Elijah Maanzo & Another – Versus - Chief Magistrate Court Kwale & 3 Others***, wherein the Applicants challenge the jurisdiction of the Magistrate’s Court in granting adverse possession decrees that allegedly vested title in the Plaintiff. 4. Upon service of the said applications, the Plaintiff filed a Replying Affidavit sworn on 6th March, 2026, opposing the Defendants’ application dated 9th December, 2025, terming it misconceived, misleading, and intended to delay the determination of this suit. 5. **The Plaintiff/Applicant’s case** 6. The Plaintiff/Applicant sought for the following orders: - 7. ***Spent.*** 8. ***Spent.*** 9. ***Pending the hearing and determination of this suit, this Honourable Court be pleased to issue an injunction restraining the Defendants, their agents, servants, employees, and/or any other persons acting at their behest from entering, trespassing upon, constructing, interfering with, occupying, or in any other manner dealing with the Plaintiff's properties known as Kwale/Diani SS/2445 and Kwale/Diani SS/2115.*** 10. ***The Officer Commanding Station (OCS), Diani Police Station or any other police officer, enforce the court orders herein.*** 11. ***The Respondent bear the cost.*** 12. The application by the Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 16 paragraphed annexed affidavit of MARY MUTHEU, the Plaintiff/Applicant herein wherein the Affiant averred that: 13. She was the registered owner and lawful occupant of the properties known as Kwale/Diani SS/2445 and Kwale/Diani SS/2115, which had been acquired by her late husband, Helmut Ham. Attached in the supporting affidavit was a copy of the title deeds and marriage certificate marked as “MMC - 001 and 002” respectively. 14. The Affiant stated that following the death of her husband, the 1st and 3rd Respondents, who were directors of Mikaela Academy bordering the suit properties, unlawfully deployed guards through their company, the 4th Defendant, Daniel Mwangi Mbogo T/A Noble Security Services Limited and had since taken over the properties by force and intimidation. Attached in the supporting affidavit was a copy of the Certificate of Death and letter by Koline Farms marked as “MMC – 003” and “MMC – 004”. 15. The Respondents had prevented her from accessing her property freely and had restricted her movements, including denying her the ability to bring in or remove her personal effects from her home. 16. She reported a complaint of land grabbing at Diani Police Station on 9th July, 2024, which was recorded under Occurrence Book number 35. Attached in the supporting affidavit was a copy of the OB extract marked as “MMC – 005”. 17. The Defendant misused his consular office to access confidential data of Helmut Ham and fabricated a Power of Attorney falsely purporting to be from Sebastian Ham. Attached in the supporting affidavit was a copy of the fabricated Power of Attorney and Green Card marked as “MMC - 006 and 007” respectively. 18. The Defendant used the forged Power of Attorney to file a fraudulent suit, “***ELC No. E026 of 2025”,*** which upon realization that the Plaintiff had discovered, was hurriedly withdrawn. Attached with a supporting affidavit was a copy of the filed suit and notice of withdrawal marked as “MMC - 008 and 009” respectively. 19. The Power of Attorney previously filed contained a photograph that was not of the Donor, Sebastian Ham, but of the 1st Defendant. 20. The Defendant further forged Sebastian Ham’s passport number in the Power of Attorney so as to claim title deeds of properties Kwale/Diani SS/2447 and Kwale/Diani SS/2115. 21. Under the occupation of the said guards, she had lost several valuable items, including gold and silver chains, antique artifacts, original paintings, and art collections valued at over a sum of Kenya Shilling Twenty Million (Kshs. 20,000,000/=). 22. Further, the Respondents had permitted illegal occupation of her two 3 -bedroom maisonettes on Kwale/Diani SS/2115 by persons claiming to be former employees of the deceased, thereby denying her rental income exceeding a sum of Kenya Shillings Two Million Four Hundred Thousand (Kshs. 2,400,000/=) to date. Attached in the supporting affidavit was a copy of evidence of the illegal occupation marked as “MMC – 010”. 23. The Defendants had no legal or equitable interest in the suit properties and were acting purely out of commercial interest to expand their school, Mikaela Academy. 24. Unless this Honourable Court intervened urgently, she would continue to suffer irreparable harm, loss of livelihood, and violation of her right to property and dignity. 25. The 5th Defendant, proprietors of Mikaela School, had created an access gate which students, teachers, and staff consistently used to pass through her property without authority or consent. All this was enabled by the Defendants and their security personnel. Attached in the supporting affidavit were videos of staff and students passing through the suit properties marked as “MMC – 011”. 26. She prayed this Honourable Court granted the interim injunction orders sought in the Notice of Motion application. 27. The Affiant deponed that what was stated herein was true to the best of her knowledge, information, and belief. 28. **The Notice of Motion application dated 9th December, 2025 by the 3rd Defendant** 29. The 3rd Defendant sought the following ORDERS: 30. ***Spent.*** 31. ***That this Honourable Court be pleased to issue a stay of these proceedings in terms of the hearing of the Plaintiff's motion dated 22nd October, 2025 pending hearing and determination of this motion.*** 32. ***That this Honourable Court be pleased to issue a stay of these proceedings pending determination of ELCJR CASE NO.E010 OF 2025- KWALE ELIJAH MAANZO & ANOR VS THE CHIEF MAGISTRATE COURT KWALE & 3 OTHERS.*** 33. ***That the costs of this application be provided for.*** 34. The application by the Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 14 Paragraphed annexed affidavit of ELIJAH MUSILI MAANZO, the 3rd Defendant/Applicant herein, who averred that: 35. He was informed by his current advocates on record, which information he duly believed to be true, that the Applicant herein had filed ***“HCCOM E004 of 2025 – Kwale Mary Mutheu – Versus - Stefan Wentzel, Noble Security Services Limited & Elijah Musili Maanzo”***, a suit where she sought similar orders to this suit, including to be declared as a beneficial owner of the properties despite having title deeds. The Affiant annexed in the affidavit and marked as “EMM – 1 were copies of the Plaint and motion in that suit. 36. He was informed by his current advocates on record, which information he duly believed to be true, that a Reply to the motion had been filed and that the suit was withdrawn with costs on 22nd October, 2025. The Affiant annexed in the affidavit and marked as EMM-2, copies of the Reply and Order on Withdrawal. 37. The Affiant deponed that he was aware that the Plaintiff’s title to Plot No. 2115 had been obtained via a decree in an adverse possession claim in ***“MCELC Cause E035/2024 O.S – Kwale Mary Mutheu Chege – Versus - Sebastian Hamm”***, which proceeded without the registered owner’s knowledge as he was out of the country and thus never served. 38. He was informed by his advocates on record, which information he verily believed to be true, that there was a challenge on the adverse possession claims by the Plaintiff in: 39. ***MCELC Misc/E003/2024 – Kwale Mary Mutheu Chege – Versus - Sebastian Hamm*** 40. ***MCELC Cause E035/2024 O.S – Kwale Mary Mutheu Chege – Versus - Sebastian Hamm*** 41. ***MCELC Cause E036/2024 O.S – Kwale Mary Mutheu Chege – Versus - Sebastian Hamm for lack of jurisdiction in ELCJR Case No. E010 of 2025 – Kwale Elijah Maanzo & Another – Versus - Chief Magistrate Court Kwale & 3 Others, where the Applicants sought to quash those decisions and thus the Respondent’s titles. The Affiant annexed hereto and marked as EMM-3, copies of the pleadings in the judicial review application.*** 42. He was informed by his advocates on record, which information he verily believed to be true, that the judicial review ex-parte summons was set for directions on 23rd February, 2026, and one of the issues therein was the stay of these proceedings pending hearing of the substantive motion. The Affiant annexed in the supporting affidavit and marked as “EMM – 4” were copies of the CTS file details. 43. The 5th Defendant/Applicant was a school operating on its own property, Plot No. Kwale/Diani/105, separate from the Respondent’s property, and that the access gate on the perimeter wall shared with the school had been built by the Plaintiff/Respondent’s late husband for his sponsored children who no longer attended the school, thus there was no basis for the orders sought. 44. He was aware the school did not have any guards occupying the Respondent’s properties and that the orders sought by the Plaintiff in her motion dated 22nd October, 2025 and the Plaint were vague and would cripple the operations of the school, thereby negatively impacting the community. 45. He was advised by his advocates on record, which advice he verily believed to be true, that an order for status quo would allow the school to operate normally and maintain stability on the ground as the judicial review motion was heard. 46. He believed no prejudice would be suffered by the Plaintiff if the application was allowed. 47. From the foregoing, it was crucial for this Court to order a stay of these proceedings. 48. It was in the interest of justice that the orders sought be granted. 49. He swore this affidavit in support of the application filed herein. 50. The Affiant averred that what was deponed hereinabove was true and correct to the best of his knowledge, information, and belief, save for sources clearly stated therein. 51. **The Plaintiff’s response to the Notice of Motion application dated 9th December, 2025** 52. The Plaintiff responded to the Notice of Motion application dated 9th December, 2025 through a 16 Paragraphed Replying Affidavit sworn by MARY MUTHEU, the Plaintiff in this matter who averred that:- * + - 1. She had read the said affidavit and had been advised by her Advocates on record, which advice she verily believed to be true, that the application by the Defendants was misconceived, misleading, and intended to delay the determination of the suit. 2. The Defendants had falsely alleged that the proceedings herein ought to be stayed on account of proceedings in ***“MCL&E Case No. E010 of 2025 – Kwale Elijah Maanzo & Another v The Chief Magistrate Court Kwale & 3 Others”***. 3. The said judicial review proceedings referred to by the Defendants did not determine the substantive ownership of the suit properties but merely challenged certain proceedings before the Magistrate’s Court. 4. The present suit before this Honourable Court concerned trespass, illegal occupation, and interference with her properties known as Kwale/Diani SS/2445 and Kwale/Diani SS/2115, which issues fell squarely within the jurisdiction of this Honourable Court. 5. The Defendants had deliberately misrepresented the facts in an attempt to create the impression that the dispute was already determined elsewhere. 6. The Defendants’ claim that an Ex - Parte decree in the case of:- ***“MCL&E Case No. E053 of 2024 – Mary Mutheu Chege – Versus - Sebastian Hamm”*** determined the rights over the suit property was misleading and did not extinguish her proprietary rights 7. The Defendants had never acquired any lawful interest in the suit properties and that their continued occupation and interference amounted to trespass. 8. The Defendants’ allegations that the Plaintiff sought to sanitize an illegality were false and merely intended to obstruct the due process of this Honourable Court. 9. The Defendants had in fact been using their security company and agents to restrict her access to her own properties and had facilitated the occupation of her houses by unauthorized persons. 10. She continued to suffer substantial loss, including loss of rental income and loss of access to her personal property, as already detailed in her earlier affidavits filed in the matter. 11. The Defendants had failed to demonstrate any legal basis upon which the proceedings of this Honourable Court should be stayed. 12. She had been advised by her Advocates on record, which advice she verily believed to be true, that the existence of other proceedings did not bar this Honourable Court from hearing and determining the matter, as the causes of action and reliefs sought were distinct. 13. The Defendants’ application was therefore an abuse of the court process and calculated solely to delay justice. 14. It was in the interests of justice that the Defendants’ application be dismissed with costs and the matter proceed to hearing. 15. The Affiant deponed that what was stated herein was true to the best of her knowledge, information, and belief. 53. **Submissions** 54. On 9th March, 2026, while all the parties were present in Court, directions were issued that the Notice of Motion applications dated 22nd October, 2025 and 9th December, 2025 be disposed of by way of written submissions. 55. All the parties duly complied with the Court’s directions. Pursuant thereto, a ruling date was reserved for the 25th June, 2026 by this Honourable Court accordingly. 56. **Analysis and Determination** 57. I have carefully read and considered the pleadings herein, the affidavits filed, and the relevant statutory provisions and authorities cited by the parties. 58. In order to arrive at an informed decision, the Honourable Court has framed the following issues for determination: 59. ***Whether the Notice of Motion application dated 22nd October, 2025 meets the threshold required for grant of temporary injunctive relief under Order 40 Rules 1 and 2 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and Article 40 of the Constitution of Kenya, 2010.*** 60. ***Whether the Notice of Motion application dated 9th December, 2025 meets the threshold required for stay of proceedings under Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and the principles governing judicial review.*** 61. ***Who should bear the costs of the two applications dated 22nd October, 2025 and 9th December, 2025.*** ***ISSUE No. a). Whether the Notice of Motion application dated 22nd October, 2025 meets the threshold required for grant of temporary injunctive relief under Order 40 Rules 1 and 2 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and Article 40 of the Constitution of Kenya, 2010.*** 1. Under this sub–title, the Honourable Court shall examine whether the Notice of Motion application dated 22nd October, 2025 meets the threshold required for grant of temporary injunctive relief under the provision of Order 40 Rules 1 and 2 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and Article 40 of the Constitution of Kenya, 2010. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law. Which provides as follows:- **Order 40, Rule 1** **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.** 1. Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of ***“Giella – Versus - Cassman Brown & Co Limited (1973) EA 358”***, where it was stated: - ***“First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”*** 1. The three conditions set out in ***“Giella (supra)”***, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of ***“Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR”***: -, ***“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”.*** 1. In dealing with the first condition of prima facie case, the Honorable Court guided by the definition melted down in the famous case “***MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125”*** of: -, ***“So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”*** 1. Applying these principles to the present case, the Plaintiff has exhibited title deeds to Kwale/Diani SS/2445 and Kwale/Diani SS/2115, and deponed that the Defendants unlawfully deployed guards, dispossessed her of possession, and facilitated trespass and illegal occupation. She further alleges loss of heirlooms valued at a sum of Kenya Shillings Twenty Million (Kshs. 20,000,000/=) and rental income exceeding a sum of Kenya Shillings Two Million Four Hundred Thousand (Kshs. 2,400,000/=). These facts disclose infringement of proprietary rights under the provision of Article 40 of the Constitution. The Defendants’ contestation of her title, including allegations of irregular acquisition, are weighty matters but are reserved for trial. 2. In line with ***“Mrao Ltd – Versus - First American Bank of Kenya Limited [Supra]”***, a prima facie case requires demonstration of infringement of a right. In the case of ***“Mbuthia – Versus - Jimba credit Corporation Limited 988 KLR 1”***, the court held that; ***“In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.”*** 1. Similarly, in the case of ***“Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Limited”***the court held that; ***“In an interlocutory application to determine the very issues which will be canvassed at the trial with finality All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.”*** 1. Accordingly, I am persuaded that the Plaintiff has established a prima facie case with a probability of success, sufficient to warrant protection. 2. The second principle in ***“Giella – Versus - Cassman Brown & Co. Ltd (Supra)”*** requires the applicant to demonstrate that they stand to suffer irreparable injury which cannot be adequately compensated by an award of damages if the injunction is withheld. With regards to the second limb of the Court of Appeal in ***“Nguruman Limited (supra)”*,** held that, ***“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”*** 1. Having established that the Plaintiff has demonstrated a prima facie case, the Court must now consider whether she stands to suffer irreparable injury if the injunction is not granted. The Plaintiff’s loss of heirlooms, antiques, and denial of access to her home constitutes harm that cannot be quantified or restored by monetary compensation. As held in ***“Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [supra]”***, irreparable injury refers to harm that is substantial and cannot be adequately remedied by damages. The Plaintiff’s proprietary rights, once interfered with, cannot be restored by mere monetary compensation.. The judicial decision of ***“Pius Kipchirchir Kogo – Versus - 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.”*** 1. Further in the case of ***“Kenya Breweries Ltd & Another – Versus - Washington Okeyo [2002] eKLR”***, the Court of Appeal held that where a party’s proprietary rights are threatened, damages are not always an adequate remedy. In the case of ***“Olympic Sports House Ltd v School Equipment Centre Ltd [2012] eKLR”***, the Court held that interference with possession and business operations constitutes irreparable harm. 2. Quite clearly, the Applicant would not be able to be compensated through damages being the land according to them was fraudulently subdivided hence the same has to be determined through a full trial having preserved the suit property. The Plaintiff has therefore satisfied the second limb, showing that her proprietary rights, once violated, cannot be vindicated by damages alone. The Applicant has therefore satisfied the second condition as laid down in ***“Giella’s case”***. 3. Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in his favour. In the case of ***“Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (Supra)”*** 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”.*** 1. In the case of ***“Paul Gitonga Wanjau – Versus - Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR”***, the court dealing with the issue of balance of convenience expressed itself thus:- ***“Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.”*** 1. In this case, maintaining the Plaintiff’s possession preserves the subject matter of the suit. Evicting her at this stage would occasion greater hardship than restraining the Defendants until trial. If the injunction is withheld, the Plaintiff risks permanent dispossession, waste, and alienation of her land. Conversely, if the injunction is granted and the Defendants later succeed at trial, they will only have been delayed in exercising their rights, which can be compensated by damages. 2. The balance of convenience tilts in favour of the Plaintiff/ Applicant. Preserving the Plaintiff’s possession and restraining further interference ensures that the subject matter of the suit is not wasted or alienated before trial. The decision of ***“Amir Suleiman – Versus - 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.”*** 1. The balance of convenience lies in favour of granting the injunction and maintaining the status quo pending the hearing and determination of the suit, I am convinced that there is a lower risk in granting orders of temporary injunction than not granting him, as I wait to hear the suit on its merits. This is especially so because I have not had the opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the claim of the Applicant and it will be in the interest of both the Applicant and the Respondents that the suit property is preserved until the hearing and determination of the suit. 2. In the case of:- ***“Robert Mugo wa Karanja – Versus - 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...”*** 1. I am convinced that if orders of temporary injunction are not granted in this suit, the property in dispute might be in danger of being dealt in the manner set out in the application and apprehended by the Plaintiff/Applicant.In view of the foregoing, I find that the Plaintiff/Applicant has met the criteria for grant of orders of temporary injunction. ***ISSUE No. b). Whether the Notice of Motion application dated 9th December, 2025 meets the threshold required for stay of proceedings under Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and the principles governing judicial review.*** 1. Under this sub–title, the Honourable Court shall examine whether the Notice of Motion application dated 9th December, 2025 meets the threshold required for stay of proceedings under the provision of Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and the princip*l*es governing judicial review. 2. The provision of Order 51 Rule 1 of the Civil Procedure Rules provides the general procedure for applications by way of Notice of Motion application. Sections 1A and 1B of the Civil Procedure Act, cap. 21 and Section 3 of the Environment & land Court Act, No. 19 of 2011 emphasize the overriding objective of the Court to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Section 3A preserves the Court’s inherent jurisdiction to make orders necessary for the ends of justice. 3. It is not in doubt that this Court has powers to stay proceedings under its inherent jurisdiction reserved in Section 3A of the Civil Procedure Act. Stay of proceedings is a grave judicial discretion that interferes with a party’s right to be heard and is to be granted only in the clearest of cases. The applicable principles are well-settled. 4. In the case of:- ***“Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000”*** where it was stated that:- ***“The sole question is whether it is in the interest of justice to order a stay of proceedings, considering factors such as the prima facie merits of the intended appeal, the interests of the applicant, the prejudice to the respondent, and the expeditious disposal of cases.”*** 1. Further, in the case of:- ***“David Morton Silverstein – Versus - Atsango Chesoni Civil Application No. Nai. 189 of 2001 [2002] 1 KLR 867; [2002] 1 EA 296”*** the Court of Appeal citing ***“Kenya Commercial Bank Limited – Versus - Benjoh Amalgamated Ltd & Another Civil Application No NAI 50 of 2001”*** held that it is not the law that a stay of proceedings cannot be granted but that each case depends on its own facts. In the case of:- ***“Niazons (Kenya) Limited – Versus - China Road & Bridge Corporation (Kenya) Limited. Nairobi (Milimani) HCCC No. 126 of 1999”*** it was held that: ***“Where the appeal may have very serious effects on the entire case so that if stay of proceedings is not granted the result of the appeal may well render the orders made nugatory and render the exercise futile, stay…should be granted.”*** 1. The decision on whether to grant stay of proceedings is discretionary but must be exercised judiciously and on sound principles. The main consideration is whether it is in the interest of justice to grant such an order. See ***“Re Global Tours & Travel Ltd HCWC No.43 of 2000 (Unreported)”***. 2. The Court of Appeal stated in the case of:- ***“Lucy Njoki Waithaka – Versus - Tribunal Appointed to Investigate the Conduct of the Honourable Lady Justice Lucy Njoki Waithaka & Judicial Service Commission; Kenya Magistrates & Judges Association (Interested Party) [2020] eKLR”*** that: ***We note that stay of proceedings is a serious, grave and fundamental judicial action which interferes with the right of any party to conduct litigation. (See: Francis N. Githiari – Versus - Njama Limited [2006] eKLR). It impinges on the right of access to justice, right to be heard without delay and the right to a fair trial. While addressing the issue of stay of proceedings in the persuasive case of Global Tours & Travels Limited (supra), Ringera, J as he then was stated thus:*** ***“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice… the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal in the sense of whether or not the intended appeal will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”*** 1. In **Halsbury’s Laws of England, 4th Edn. Vo. 37 page 330 and 332**, stay of proceedings is discussed as follows: **The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue…This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases ... It will not be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.** 1. The 3rd Defendant/Applicant, Elijah Musili Maanzo, deponed that the Plaintiff’s title to Plot No. 2115 was obtained through adverse possession decrees issued by the Magistrate’s Court in ***“MCELC Cause E035 of 2024 O.S – Kwale Mary Mutheu Chege – Versus - Sebastian Hamm”***, allegedly without service upon the registered owner. He annexed pleadings in ***“ELCJR Case No. E010 of 2025 – Elijah Maanzo & Another v Chief Magistrate Court Kwale & 3 Others”***, where jurisdiction of the Magistrate’s Court is challenged. He argued that unless these proceedings are stayed, the Plaintiff/Applicant will enforce a decree that is irregular and prejudicial, and that an order of status quo would allow the school and parties to operate normally pending determination of the judicial review. 2. The Plaintiff/Applicant, in her Replying Affidavit sworn on 6th March, 2026, averred that the Defendants’ application was misconceived, misleading, and intended to delay justice. She stated that the judicial review proceedings did not determine substantive ownership of the suit properties but merely challenged the Magistrate’s Court process. She emphasized that the present suit concerned trespass, illegal occupation, and interference with her properties, matters squarely within the jurisdiction of this Court. She further deponed that the Defendants had misrepresented facts to create the impression that the dispute was already determined elsewhere, and that their continued occupation amounted to trespass. 3. The Court must consider and/ or weigh the following while determining to grant stay of proceedings:- * + - 1. The need for expeditious disposal of cases. 2. The prima facie merits of the intended challenge. 3. The need to avoid multiplicity of proceedings. 4. Whether the application is made without undue delay. 5. The balance of convenience and interests of justice 4. The Defendants’ judicial review challenge is directed at the jurisdiction of the Magistrate’s Court in granting adverse possession decrees. However, this does not directly determine ownership or trespass, which are the substantive issues before this Court. Granting stay would delay resolution of the Plaintiff’s claim of trespass and unlawful occupation, contrary to Sections 1A and 1B of the Civil Procedure Act which require courts to facilitate expeditious disposal of disputes. The judicial review proceedings and the present suit address distinct issues. The former challenges jurisdiction, while the latter seeks injunctive relief against trespass. There is no risk of duplication or conflicting outcomes. The Plaintiff continues to suffer dispossession, loss of income, and violation of proprietary rights. The Defendants, on the other hand, would only be inconvenienced by delay in exercising alleged rights, which can be compensated by damages. The balance of convenience therefore tilts heavily in favour of the Plaintiff. The application was filed after the Plaintiff had already moved the Court for injunctive relief. The timing and tenor of the application suggest it was calculated to stall proceedings rather than advance substantive justice. 5. The Court is persuaded that the Defendants’ application dated 9th December, 2025 does not meet the threshold required for stay of proceedings under the provision of Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and the principles governing judicial review. The application is misconceived, amounts to an abuse of the court process, and is calculated to delay justice. 6. Accordingly, the Notice of Motion application dated 9th December, 2025 is dismissed for lack of merit with costs. ***ISSUE No. c). Who should bear the costs of the two applications dated 22nd October, 2025 and 9th December, 2025.*** 1. It is now well established that the issue of costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. I have well stated in previous precedence and most especially in ***“Sagalla Lodge Limited – Versus - Samwuel Mazera Mwamunga & another (Suing as the Executors of Eliud Timothy Mwamunga – Deceased) [2022] eKLR”***, that: ***“58. The Black Law Dictionary defines “Cost” to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.*** ***The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. The issue of Costs is the discretion of Courts. From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. The events in this case is that the Notice of Motion application dated 7th December, 2021 by the Plaintiff has succeeded and hence they are entitled to costs of the application and that of the Defendants dated 21st December, 2021.”*** 1. The rationale is that the successful party should ordinarily be compensated for the expense incurred in vindicating their rights, while the unsuccessful party bears the financial consequence of their failed litigation. See the cases of ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. 2. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 3. In the present matter, the Plaintiff’s application dated 22nd October, 2025 has been found to meet the threshold for grant of temporary injunctive relief under the provision of Order 40 Rules 1 and 2 of the Civil Procedure Rules. Conversely, the Defendants’ application dated 9th December, 2025 seeking stay of proceedings has been found to be misconceived, an abuse of the court process, and intended to delay justice. 4. Accordingly, the Honourable Court orders that the Defendants shall bear the costs of both applications dated 22nd October, 2025 and 9th December, 2025. 5. **Conclusion and Disposition** 6. In long analysis, the Honourable Court has carefully considered and weighed the conflicting parties’ interests as regards the competing applications. Clearly, the Plaintiff/Applicant has established entitlement to interlocutory protection under Order 40 Rules 1 and 2 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and Article 40 of the Constitution of Kenya, 2010, while the Defendants/Applicants have failed to demonstrate sufficient grounds to warrant a stay of proceedings under Order 51 Rule 1 of the Civil Procedure Rules and the principles governing judicial review. 7. Having said that much, there is need to preserve the integrity of the judicial process by ensuring that proprietary rights duly protected by law are not rendered nugatory through dilatory tactics. In a nutshell, I proceed to order the following:- 8. **THAT the Notice of Motion application dated 22nd October, 2025 by the Plaintiff/Applicant be and is hereby found to have merit and is allowed.** 9. **THAT a temporary injunction be and is accordingly issued restraining the Defendants, their agents, servants, employees, or any persons acting under their authority from entering, trespassing upon, constructing, interfering with, occupying, or otherwise dealing with the Plaintiff’s properties known as Kwale/Diani SS/2445 and Kwale/Diani SS/2115, pending the hearing and determination of the suit.** 10. **THAT an order do issue that the Officer Commanding Station (OCS), Diani Police Station or any other police officer, enforce the court orders herein.** 11. **THAT the Notice of Motion application dated 9th December, 2025 by the Defendants/Applicants seeking stay of proceedings be and is hereby dismissed for want of merit.** 12. **THAT for expediency sake, there be conducted a Pre – Trial Conference on 7th October, 2026 pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There be a hearing on 18th November, 2026 ELC No. 1 preferably through Physical means.** 13. **THAT the costs of both applications dated 22nd October, 2025 and 9th December, 2025 shall be borne by the Defendants/Applicants.** **IT IS SO ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS ………2ND .….……DAY OF ………JULY…..……..2026.** **……………………………** **HON. MR. JUSTICE L. L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of:** * + - * 1. Mr. Daniel Disii, the Court Assistant. 2. M/s. Minaywa Advocate holding brief for Mr. Kowade Advocate for the Plaintiff. 3. Mr. Mkomba Advocate for the 1st , 2nd, 3rd, 4th & 5th Defendants.