https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4645

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT KERUGOYA** **ELCLC NO. E039 OF 2025** **MICHAEL KARIUKI MUTUGI ………………… 1ST PLAINTIFF/APPLICANT** **JOSEPH MUKABI MUTUGI ………………….. 2ND PLAINTIFF/APPLICANT** **VERSUS** **BERNARD MURIMI MUTUGI ……………… DEFENDANT/RESPONDENT** **RULING** ***[Notice of Motion Dated 4th November 2025]*** 1. The application before the court is the Notice of Motion dated 4th November 2025 brought by the Plaintiffs/Applicants. It is expressed to be brought under **Order 40 Rule 1 (A) and (B), Order 51 Rule 1 of the Civil Procedure Rules 2010, Sections 1A,1B and 3A of the Civil Procedure Act and Section 68 of the Land Registration Act** and seeks for principally: 1. *Inhibition order over* **Plot No. 86B Kagio***, pending the hearing and determination of both the application and the main suit.* 2. *Injunction order restraining restraining the Defendant, whether by himself, his agents, relatives, employees and/or servants, from interfering with the said property pending the hearing and determination of the suit.* 3. *Costs of the application.* The application is premised on the fourteen (14) grounds appearing on its face marked (a) to (n) respectively, and is supported by the joint supporting affidavit of the Plaintiffs/Applicants, sworn on 4th November 2025. 1. The application is opposed by the defendant/respondent through his replying affidavit sworn on 5th December 2025. **Applicants’ Case:** 1. Through the joint affidavit, the Plaintiffs/Applicants deposed inter alia that they are siblings of the Defendant and beneficiaries of the estate of their late father, John Mutugi Mbagaga. They state that the deceased's estate comprised inter alia, of **Plot No. 86 Kagio and L.R. No. Mwerua/Kagio/1031,** whose distribution was settled through a Rectified Certificate of Confirmation of Grant issued on 11th May 2011 in **Nairobi High Court Succession Cause No. 612 of 1993**. According to the Applicants, the confirmed grant directed that the estate be shared amongst all the beneficiaries. They contend that notwithstanding that distribution, the Defendant, without their knowledge or consent, caused **Plot No. 86 Kagio** to be subdivided into **Plots Nos. 86A, 86B and 86C** in July 2017 before causing Plot No. 86B to be registered in his own name. 1. The Applicants aver that they only became aware of the subdivision upon obtaining a Minute Extract dated 21st October 2025 from the Kirinyaga County Director of Land Survey and GIS Office. They contend that the subdivision was undertaken contrary to the Rectified Certificate of Confirmation of Grant and without the consent of the beneficiaries. They accuse the Defendant of having unlawfully procured the subdivision and registration of **Plot No. 86B** by inter alia, acting without authority under the grant, failing to obtain the consent of the beneficiaries, effecting the subdivision without lawful procedure, causing documents to reflect subdivisions which were allegedly never undertaken on the ground, procuring registration of **Plot No. 86B** in his favour, altering official records, allocating beneficiaries to portions contrary to the confirmed grant, swearing affidavits without the beneficiaries' authority, impersonating beneficiaries before the Lands Office and generally dealing with the property without their knowledge or consent. 2. The Applicants further deposed that the Defendant presently holds a Minute Extract in respect of **Plot No. 86B,** which they fear he may use to transfer, dispose of or otherwise deal with the property to their prejudice before the suit is heard and determined. It is on that basis that they urge the court to preserve the suit property by granting orders of inhibition and temporary injunction pending the determination of the suit. **Respondent’s Case:** 1. The respondent contends inter alia that the application is incompetent because **Plot No. 86B** is jointly registered in his name together with Mary Wanjiru Murimi, Florence Nyambura Murimi and Susan Wairimu Murimi pursuant to **Minute No. L/H/UD/12/2020**. He therefore argues that the orders sought would affect persons who are not parties to these proceedings. He admitted that the parties herein are siblings and beneficiaries of the estate of their late father, John Mutugi Mbagaga, whose estate comprised **L.R. No. Mwerua/Kagio/1031 and Plot No. 86 Kagio**. He also confirms that the estate was distributed through the Rectified Certificate of Confirmation of Grant issued on 11th May 2011. 1. The respondent however, disputes the Applicants' assertion that the subdivision of **Plot No. 86 Kagio** was fraudulent or clandestine. He avers that following confirmation of the grant, the family reached a consensual arrangement whereby he relinquished his entitlement to approximately one acre in L**.R. No. Mwerua/Kagio/1031** to enable his siblings, including the Applicants, to obtain larger portions of that land. In return, the family agreed that he would receive a smaller portion measuring approximately 14 feet by 25 feet out of **Plot No. 86 Kagio**. 2. According to the respondent, the beneficiaries unanimously agreed to partition **Plot No. 86 Kagio**, into **Plots Nos. 86A, 86B and 86C**. He states that all the beneficiaries, including the Applicants, executed the necessary consent forms, supplied their passport photographs and authorised him to facilitate the subdivision. He avers that the partition was subsequently approved by the relevant County authorities on 4th July 2017. The respondent further deposed that the agreed arrangement was implemented and each beneficiary took possession of his or her respective share, and has since been paying the requisite rent and rates to the County Government of Kirinyaga. He adds that several beneficiaries have already dealt with their portions arising from the subdivision of **L.R. No. Mwerua/Kagio/1031**, in which he relinquished his share therein pursuant to the family agreement. 1. It is further his case that **Plot No. 86B** is considerably smaller and less developed than Plots **Nos. 86A and 86C**, thereby demonstrating that he did not obtain an unfair advantage from the arrangement. He states that he later included his wife and daughters as co-proprietors of **Plot No. 86B**. He further contends that the present suit has been brought after inordinate delay, as the Applicants allegedly signed the consent to partition the property in 2016, have occupied their respective portions since then, and have continuously paid rent and rates thereon. He therefore disputes their claim that they only discovered the subdivision in October 2025, and accused them of failing to disclose that they benefited from the one-acre share he surrendered in **L.R. No. Mwerua/Kagio/1031**. He urges the court to dismiss the application with costs. 1. The issues arising in the application for the court’s determinations are as follows: 1. *Whether the Applicants have satisfied the threshold for the grant of the orders of temporary injunction sought against the defendant, over the suit property.* 2. *Whether the applicants have made out a reasonable case for inhibition order to issue over the suit property pending the hearing and determination of the suit.* 3. *Who pays the costs?* 2. I have carefully considered the grounds on the notice of motion, affidavit evidence, the rival submissions by the learned counsel, authorities relied upon and come to the following findings: 1. The law governing the grant of interlocutory injunctions is well settled. In the case of ***Giella versus Cassman Brown & Co. Ltd* [1973] EA 358**, the court laid down the conditions that an applicant must satisfy before such relief can issue. Those principles were subsequently restated by the Court of Appeal in the case of ***Nguruman Limited versus Jan Bonde Nielsen & 2 Others* [2014] eKLR,** where the Court emphasized that the requirements are sequential. An applicant must first establish a prima facie case with a probability of success. It is only where that threshold is met that the court proceeds to consider whether the applicant stands to suffer irreparable injury incapable of compensation by an award of damages and, where necessary, determine the matter on a balance of convenience. 2. The Applicants herein contend that **Plot No. 86 Kagio** formed part of the estate of the late John Mutugi Mbagaga and that pursuant to the Rectified Certificate of Confirmation of Grant issued on 11th May 2011 in **Nairobi High Court Succession Cause No. 612 of 1993,** the property was to be shared amongst the beneficiaries of the estate. Their complaint is that, notwithstanding the confirmed mode of distribution, the Respondent unilaterally and fraudulently caused the property to be subdivided into **Plots Nos. 86A, 86B and 86C** and caused **Plot No. 86B** to be registered in his name without the knowledge or consent of the other beneficiaries. They consequently urge the Court to preserve the property through orders of inhibition and injunction on the apprehension that the Respondent may alienate or otherwise deal with the property to their prejudice before the suit is heard. 3. The Respondent on the other hand, does not dispute that the suit property formed part of the deceased's estate. His case is that the subdivision was neither clandestine nor fraudulent, but was undertaken pursuant to a family agreement reached after confirmation of the grant. According to him, he relinquished his entitlement in **L.R. No. Mwerua/Kagio/1031** to enable his siblings, including the Applicants, to obtain larger portions thereof, and in exchange, the family agreed that he would receive a smaller portion out of **Plot No. 86 Kagio**. He maintains that all the beneficiaries, including the Applicants, consented to the partition, executed the relevant documents and have occupied and paid rates and rent in respect of their respective portions since 2016. 4. It is evident from the foregoing that the parties are not merely advancing different legal arguments, but they present two irreconcilable factual accounts, regarding the circumstances under which **Plot No. 86 Kagio** was subdivided. Whereas the Applicants maintain that the subdivision was undertaken in complete disregard of the confirmed grant and without their participation, the Respondent insists that it was the product of a consensual family arrangement implemented with the knowledge and participation of all the beneficiaries. The court is also invited by the Applicants to make findings of fraud against the Respondent, while the Respondent maintains that the impugned process was lawful and duly sanctioned. * 1. At this interlocutory stage, the Court is not called upon to determine the validity of the alleged family arrangement, and or the authenticity of the alleged consents or whether fraud was indeed committed. Those are contested questions of fact that can only be conclusively resolved upon hearing oral evidence, and testing the parties’ testimonies through cross-examination. To determine those issues now would amount to conducting a trial on affidavit evidence, something the Court ought to refrain from doing. 2. The Court of Appeal in the case of ***Mrao Ltd versus First American Bank of Kenya Ltd & 2 Others* (2023) eKLR** defined a prima facie case as one which, on the material presented to the court, demonstrates an apparent infringement of a right requiring rebuttal by the opposite party. The Court cautioned that the exercise is not one of making definitive findings on disputed facts. The material placed before this Court undoubtedly discloses a dispute worthy of trial. However, the existence of a triable issue does not without more, entitle an applicant to interlocutory relief. The Court must still be satisfied that the circumstances warrant the exercise of its equitable discretion. 3. In that regard, one matter raised by the Respondent assumes significance. He has exhibited a Minute Extract arising from a meeting held on 1st July 2020 under **Minute No. L/H/UD/12/2020,** showing that Mary Wanjiru Murimi, Florence Nyambura Murimi and Susan Wairimu Murimi were approved by the County Government of Kirinyaga to be added as partners in **Plot No. 86B Kagio**, upon endorsement by the Director of Lands, Survey and GIS. The Applicants neither challenged the authenticity of that document nor sought to join the said persons to these proceedings. 4. The effect of the orders sought by the Applicants would therefore extend beyond the Respondent. An order of inhibition would freeze dealings in **Plot No. 86B Kagio**, while an injunction would equally restrain the enjoyment and use of the property. Such orders would inevitably affect the proprietary interests of the persons reflected in the said Minute Extract, yet Mary Wanjiru Murimi, Florence Nyambura Murimi and Susan Wairimu Murimi have not been afforded an opportunity to be heard. While their non-joinder is not of itself, fatal to the application, it is a relevant consideration that this Court cannot ignore in the exercise of its discretion, particularly where the orders sought directly affect proprietary interests. * 1. Equally noteworthy is the chronology emerging from the material presented before the Court. The Respondent's evidence is that the subdivision was approved in July 2017, that the parties have occupied their respective portions since 2016 and have independently paid rates and rent thereon. Further, that the additional partners were approved in respect of **Plot No. 86B** in July 2020. The Applicants, on their part, maintain that they only became aware of the subdivision upon obtaining a Minute Extract in October 2025. Whether that assertion is ultimately borne out by the evidence is a matter for trial. At this stage however, the Court is not persuaded that the Applicants have demonstrated an imminent threat of alienation beyond their apprehension. The act complained of, namely the subdivision and the addition of partners to **Plot No. 86B**, had on the Respondent's evidence, already taken place years before the institution of the suit. * 1. Having considered the factual materials placed before me, I am not persuaded that the Applicants have established a prima facie case of the nature contemplated in ***Giella (Supra)*, *Nguruman* (Supra) and *Mrao (Supra)*.** The competing factual positions presented by the parties require interrogation at a full hearing, and the Court would exceed the proper bounds of an interlocutory application were it to pronounce itself on the legality of the subdivision, the alleged family agreement or the allegations of fraud on the basis of affidavit evidence alone. Having reached that conclusion, it follows that the Applicants have failed to satisfy the first and foundational requirement for the grant of an interlocutory injunction. In accordance with the sequential test laid down in ***Nguruman******(Supra)***, there is no necessity to consider the remaining limbs relating to irreparable injury and the balance of convenience. * 1. As regards the prayer for inhibition, although such an order is intended to preserve property pending the determination of competing proprietary claims, it remains a discretionary remedy. In the peculiar circumstances of this case, where the Applicants have not established a prima facie case warranting interlocutory intervention and where the order sought would directly affect persons who are not parties to the suit, I am not persuaded that this is a proper case for the exercise of that discretion. Accordingly, I find no merit in the notice of motion dated 4th November 2025. 2. Under **section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya**, costs follow the event, unless where the court directs differently on good grounds. In this case, considering the obvious familial relations between the parties, the court is of the view that the justice of the case would be better served with an order that the costs abide the outcome of the suit. 1. Having come to the determinations set out above, the court finds and orders as follows: 1. **That the application dated 4th November 2025 is without merit and is hereby dismissed.** 2. **The costs in the application is to abide the outcome of the suit.** It is so ordered. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 22ND DAY OF JULY 2026** **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Plaintiffs/Applicants – Mr. Asimwe Defendant/respondent – No Appearance Kinyua/Charles - Court Assistant **S. M. Kibunja** **ELC JUDGE**