https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5018

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **ELCLMISC. NO. E008 OF 2026** **SHEILA MUTURI………………………………..………PLAINTIFF/APPLICANT** **VERSUS** **PETER MWANGI WANDERE…………….……..DEFENDANT/RESPONDENT** **RULING** 1. The Plaintiff/Applicant brought a suit to Court via Plaint dated 3/02/2026 and together with the Plaint she filed a Notice of Motion Application of even date brought under Section 1A, 1B and 3 A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and all enabling provisions of the law seeking the following orders: 2. Spent. 3. **THAT** the Honourable Court be pleased to grant an injunction restraining the Respondent whether by himself, his agents and/or servants from transacting, leasing, wasting, constructing on, obtaining rent, leasing, alienating or otherwise interfering or dealing with the property being **TITLE L.R. NO. KABETE/L.KABETE/4002 Kiambu County** without the permission of the Applicant, pending the hearing and determination of this suit. 4. **THAT** an order do issue requiring that the Respondent render accounts of all rental proceeds and expenses generated from the suit property be filed in Court and that the proceeds be deposited into a joint interest bearing account to be administered as agreed by the Parties. 5. **THAT** costs of this application be provided. 6. **THAT** the Honourable Court do issue any other orders that it deems necessary 7. The Application is premised on the grounds on the face of it and the annexed Affidavit of SHEILA MUTURI sworn on even date. 8. The Deponent states that she was previously in a long-term relationship with the Respondent, Peter Mwangi Wandere, and that they are the registered *bona fide* joint proprietors of the suit property known as **L.R. No. Kabete/L.Kabete/4002** Kiambu County, which is held subject to a trust for their two minor children. 9. The Applicant averred that despite having single-handedly financed the construction and development of the suit property, the Respondent has, through his agents and assigns, unlawfully denied her and her representatives access to the land and the rental proceeds derived therefrom. She further laments that because she resides in the United States, she is severely prejudiced and unable to manage, develop, or monitor the suit property, while the Respondent continues to intermeddle with the property as if he were the sole proprietor. It is her contention that she continues to suffer great harm, irreparable loss, and a continuous violation of her proprietary rights due to the malicious and dubious actions of the Respondent, which seek to completely diminish her access to the suit land. 10. The Deponent emphasizes that the matter is extremely urgent and invokes the Court's intervention as a last resort, clarifying that there is no other pending suit between the parties over the same subject matter. Notably, while the preamble of the application mentions that the application is premised on this annexed Affidavit, the body of the deposition itself runs from paragraphs 1 through 13 without explicitly enumerating or physically listing specific documentary annexures within the text of these two pages. Finally, she states that the application is brought in good faith and prays that this Honourable Court exercises its inherent powers to grant the orders sought *ex debito justitiae*. 11. The Application is opposed vide a Replying Affidavit sworn by the Defendant/Respondent on 27/02/2026. The Defendant/Respondent, Peter Mwangi Wandere, confirms in his Replying Affidavit that both the Plaintiff/Applicant and himself are registered co-owners of the land parcel known as Land Title Number KABETE/L.KABETE/4001, which is the suit property situated in Kiambu County, holding the same in trust for their two children. The Respondent vehemently denies excluding the Applicant from the suit property, asserting that he has neither altered ownership records nor attempted to sell, transfer, charge, alienate, or otherwise interfere with the title. Furthermore, he denies blocking the Applicant's access to the suit land, pointing out that she resides in the United States of America and has neither communicated any intention to access the property nor appointed a local representative. 12. The Respondent further sets out that, contrary to the Applicant's assertions, she has not requested any negotiations to discuss an amicable solution regarding the dissemination of the rental income proceeds. In fact, he claims that the Applicant is economical with the truth and has failed to disclose that she has exclusively and unilaterally handled the accounts and proceeds from the rental income for the last two years without any transparency, accountability, or disclosure to him. He states that she has been pocketing over Kenya Shillings Three Hundred Thousand (Kshs. 300,000) only while sending him a mere Kenya Shillings Fifty Thousand (Kshs.50,000) only as payment for performing caretaker and odd jobs on the property, although he does not deny that she partly contributed toward the construction and development of the land. 13. The Respondent contends that the suit is not brought in good faith, noting that the Applicant left him to manage on-ground crises alone when a tenant filed a lawsuit against him. In support of this contention, the Respondent introduces a material documentary annexure, specifically attaching a copy of the tenant's suit titled Statement of Claim Number SCCC-E3155-1013. 14. Consequently, the Respondent notifies the Court that he will be seeking orders compelling the Applicant to render full accounts of the proceeds and expenses she has pocketed over the last two years. He concludes by stating that it is in the interest of justice and fairness that prayers 3, 4, and 6 of the Applicant's Notice of Motion be dismissed, and that the temporary ex-parte injunction order be set aside because it was obtained through the non-disclosure of material facts and its continuance would occasion grave injustice to him. 15. The Application was canvassed by way of written submissions. The Plaintiff/Applicant filed their submissions dated 10/03/2025 which I suspect is 10/03/2026 and the Defendant/Respondent filed their submissions which were undated. 16. The Plaintiff/Applicant, through the firm of **Khaminwa & Khaminwa Advocates**, submits that she is the joint owner of the suit property known as Title L.R. No. Kabete/L.Kabete/4002 Kiambu County, which was designated as family property to be held in trust for the children. She submits that despite having financed the construction and development of the said land, she has been high-handedly sidelined, barred from physical access, and denied her rightful share of the rental proceeds by the Respondent, his agents, and assigns. To avert further wasting, alienation, and irreparable loss, the Applicant moves this Honourable Court for a temporary injunction to preserve the *substratum* of the suit pending its full hearing and determination. 17. She relies on the decision in the case of **Exclusive Estates Ltd v Kenya Posts & Telecommunications Corporation & Another [2004] eKLR (Civil Appeal No. 62 of 2004) and Kenleb Construction Limited v New Gatitu Service Station Limited & Another [1990] eKLR,** where the Applicant has made a full and frank disclosure of all material facts, demonstrating an existing equitable and legal right that urgently cries out for judicial protection. 18. In establishing the threshold for the grant of interlocutory reliefs, the Applicant relies further on the celebrated *locus classicus* of **Giella v Cassman Brown & Co. Ltd. [1973] EA 358,** demonstrating that she has an eminently arguable *prima facie* case with a high probability of success. She argues that her plight meets the stringent conditions set out under Order 40 Rule 1 of the Civil Procedure Rules, as captured in **Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & another [2019] KEHC 10298 (KLR)** since the suit property remains in imminent danger of being wasted and alienated by the Respondent. Furthermore, she submits that her position is underscored in the case of **Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] KEHC 2174 (KLR)** and that a denial of these conservatory orders would violate constitutional values and render the main suit entirely nugatory. 19. The Applicant further deposes that land is a unique asset, and the attendant distress of being locked out of her own property cannot be atoned for by an award of damages, a position fortified by **Niaz Mohamed Jan Mohamed v Commissioner of Lands & 4 Others [1996] KEHC 2 (KLR), and Joseph Mbugua Gichanga v Co-operative of Kenya Ltd [2005] KEHC 1576 (KLR)** which dictate that a wrongdoer must not be allowed to buy his way out of flouting the law. 20. On a balance of convenience, she relies on the Court of Appeal decision in **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR (Civil Appeal 77 of 2012)** settled as the comparative analysis of the hardships to be suffered by either party, the Applicant stands to endure the greater mischief if the injunction is withheld. Guided further by the holdings in **Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) and Jaj Super Power Cash and Carry Ltd v Nairobi City Council & 20 Others (Civil Appeal No. 111 of 2002),** it is submitted that it is imperative that the party disrupting the status quo gives way, as the Respondent cannot maintain an advantageous position acquired through illegality. To look into the Respondent’s Preliminary Objections summarily without allowing the Applicant's main suit to be ventilated would be highly draconian and prejudicial. The Applicant therefore prays that this Honourable Court finds that the balance of probabilities tilts heavily in her favour, dismisses the Respondent’s obstructive filings with costs, and grants the interim injunctive orders as prayed in the interest of justice. 21. In opposition to the Applicant's request to maintain the interlocutory injunctive orders dated the 4/02/2026, the Defendant/Respondent submits that the said orders are inequitable, unsustainable, and practically absurd. He contends that contrary to the Applicant's selective and self-serving assertions, the Respondent has at no point barred her from the suit property; rather, her alleged lack of access is entirely self-induced as she is admittedly outside the jurisdiction of this Court. The property consists of residential rental units requiring active, continuous, and on-site management, which the Respondent diligently performs while residing therein. 22. He asserts that to maintain the current status quo would completely paralyze essential day-to-day operations such as comprehensive maintenance, tenant coordination, and groundwork to the grave detriment of both parties and the tenants in occupation. Moving the Court under the trite legal maxim that he who comes to equity must come with clean hands, the Respondent relies on **Trust Bank Limited v Amalo Company Limited [2002] KECA 253 and Mary Wanjiku Mwaniki & another v. Dream Credit Limited [2017] KEELC 339 (KLR)** to demonstrate that the Applicant is undeserving of discretionary relief, having unilaterally managed the property, collected and retained all rental income, and failed to render any accounts or remit the Respondent's rightful share for a period of two years. 23. The Respondent further submits that the Applicant has signally failed to satisfy the well-settled tripartite test established in the *locus classicus* of **Giella v Cassman Brown & Co. Ltd [1973] EA 358**. First, no *prima facie* case with a probability of success has been disclosed, as no proprietary alienation has occurred and the title remains intact, reducing the matter to a mere management dispute. Secondly the Respondent submits, the Applicant cannot claim to suffer any irreparable harm, as her grievances are fundamentally rooted in the non-accounting of rental income, which is fully quantifiable and soundly compensable by an award of damages or an order for account. 24. On the balance of convenience the Respondent submits, tilts heavily in favour of the Respondent, who remains the resident manager ensuring the property does not deteriorate or suffer a mass exodus of tenants. Consequently, the Respondent prays that the existing injunction be discharged in its entirety with costs, or in the alternative, be suitably varied to permit his continued management of the premises subject to rendering a proper monthly accounting of all rental income received pending the final determination of this suit. **Analysis and Determination** 1. This dispute centers on the management, control, and financial returns of a commercial residential property located in Kiambu County. Sheila Muturi, the Plaintiff and Applicant, has approached the Court seeking temporary injunctive relief to stop her co-owner, Peter Mwangi Wandere, from dealing or interfering with the property. Additionally, she requests an order compelling him to account for rental proceeds and deposit them into a joint, interest-bearing bank account. The case highlights the common friction that arises when personal relationships between joint tenants break down, particularly when property is held in trust for minor children and becomes subject to competing claims of exclusion and financial concealment. 2. The Applicant relies on Sections 1A, 1B, and 3A of the Civil Procedure Act alongside Order 51 of the Civil Procedure Rules to preserve the property pending trial. Her claim is built on her joint legal ownership and her assertion that she solely funded the construction of the rental units. Living in the United States, she argues she is vulnerable to exploitation, claiming she has been locked out of physical access to the land and deprived of rental income by the Respondent and his agents. She asks the Court to intervene to prevent the wasting or potential disposal of the asset by a co-owner she accuses of acting as a sole proprietor. 3. To secure a temporary injunction, an Applicant must satisfy a well-established threefold test. First, they must show a prima facie case with a probability of success. The Applicant argues that her joint title and financial contributions establish a clear legal right deserving of protection. She contends that the threat of waste or alteration meets the criteria under Order 40 Rule 1 of the Civil Procedure Rules. In evaluating whether a clear right exists, Kenyan Courts have long held that a prima facie case means a case which is serious enough to command the Court's attention, where there is a right infringed or threatened, and where the Applicant has a probability of succeeding at trial as observed in **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2005] KLR**. Furthermore, as emphasized in cases like **American Cyanamid Co v Ethicon Ltd [1975] and Daryao v State of UP [1961];** where the Court's primary objective at this preliminary stage is to protect the subject matter of the suit from being destroyed or disposed of before the rights of the parties can be fully determined. 4. Secondly, the Applicant must demonstrate that she will suffer irreparable injury that cannot be remedied by damages. She argues that land is a unique asset, and its loss or degradation causes intangible, structural distress that money cannot cure. On this point, Kenyan jurisprudence recognizes that property rights carry inherent value, and where an Applicant shows a distinct threat to their proprietary interests, damages may not offer a complete remedy see **Niaz Mohamed Janmohamed v Commissioner of Lands [1996] eKLR**). Regarding the balance of convenience, she maintains that a comparative look at the hardships shows she will suffer the greater harm if the Respondent is allowed to continue his unilateral management. 5. The Respondent opposes the application, accusing the Applicant of bad faith and material non-disclosure. While he admits the title is held jointly in trust for their two minor children, he denies blocking her from the property. He argues that her lack of physical access is simply due to her living in the United States. He notes that the property consists of active residential units requiring constant on-site management, a burden he claims to have handled alone while living on the premises. 6. The core of the response relies on the equitable doctrine of clean hands. The Respondent claims the Applicant has been selective with the facts, omitting that she managed the bank accounts and collected the bulk of the rental proceeds for two years. He alleges she kept over Kesh 300,000 monthly while sending him only a nominal fifty thousand shillings as if he were an employee. To show her lack of support, he shares documents from a separate tenant lawsuit that he had to defend without her help. 7. Relying on the principle that those who seek equity must do equity, the Respondent argues that the Applicant's failure to account for the collected revenue disqualifies her from receiving injunctive relief. The Court of Appeal in **Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR** reaffirmed that an interim injunction is an equitable, discretionary remedy, and a party who suppresses material facts or acts unfairly defeats their own claim to the Court's protection. Mativo J (as he then was) held that: ***“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 one hand would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the Applicant on the other hand might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the Applicant will suffer if the injunction is refused is greater than that which the Respondent will suffer if it is granted lies on the Applicant.”*** 1. The Respondent also argues that because the title remains safely registered in both names, there is no real threat of the property being sold. He characterizes the dispute as a quantifiable disagreement over rental income, which can be resolved through financial damages rather than an injunction. 2. Resolving an interlocutory injunction requires applying legal principles directly to these competing facts without conducting a premature trial of the main lawsuit. The standard for grant remains strict: a probability of success must be evident, irreparable injury must be likely, and any remaining doubt is resolved by looking at the balance of convenience. 3. The Respondent’s primary defense that the Applicant’s past conduct bars her from relief implicates the requirement for complete candor. This principle is deeply rooted in Kenyan law, where Courts have consistently held that an Applicant must make a full and frank disclosure of all material facts within their knowledge, and any deliberate omission can lead to the immediate rejection of the application without an examination of its merits as held in **Kenleb Cons Limited –versus- New Gatitu Service Station Limited And Another (1990) KLR 557,**where **Bosire J(as he then was)** held that**;** ***“To succeed in an application for injunction an Applicant must not only make full and frank disclosure of all relevant facts to the just determination of the application but must show he has a right, legal or equitable, which requires protection by injunction.”*** 1. Additionally, because the parties are joint tenants holding the land in trust for their children, the legal nature of concurrent ownership applies. Joint tenants share a unity of possession, giving each an equal right to use and enjoy the entire property. However, when property is held in trust or generates common income, co-owners owe fiduciary duties to one another. If one co-owner collects more than their fair share of rents from third-party tenants, they are legally required to account to the other for that excess to prevent unjust enrichment. 2. Regarding the tension between the unique nature of land and the quantifiable nature of rental income, the law draws a clear distinction. While land is generally treated as irreplaceable, an injunction will typically be denied if the real substance of the dispute is simply a disagreement over a stream of income. As noted in **Air Kenya Aviation Ltd v Kenya Airports Authority [2012] eKLR**, where a loss can be fully calculated and compensated in monetary terms, it does not constitute an irreparable injury. 3. When the competing arguments are stripped down, both sides reveal clear vulnerabilities. The Applicant has a valid legal interest as a registered joint owner and trustee, but her claims of total exclusion are weakened by her residence abroad and her alleged failure to account for past rental revenue. Conversely, the Respondent’s role as a diligent caretaker is complicated by his unilateral control over the physical premises and the clear breakdown of communication regarding financial management. 4. Preserving the property is vital, but a total injunction would freeze the operations of commercial rental units. Such paralysis would devalue the asset and harm the financial interests of the minor children who are the beneficiaries of the trust. Equity seeks a balanced solution when co-owners reach a deadlock, focusing on creating a transparent mechanism to safeguard income while leaving physical operations intact. 5. Consequently, while the Applicant holds a valid joint title, she has not shown that her potential injuries cannot be resolved through a financial accounting or monetary damages. Furthermore, her failure to disclose her exclusive control over past rental income violates the clean hands doctrine, ruling out a total injunction against the Respondent. However, because the property is held in trust for minor children, the Court must use its inherent powers to preserve the asset and ensure financial accountability. To balance the hardships fairly, the blanket injunction against the Respondent’s management is denied, but orders are granted compelling mutual transparency, a full rendering of accounts from both parties, and the secure deposition of all future rental income. 6. Consequent upon the findings and analysis detailed above, the Court hereby dispenses with the Notice of Motion Application dated 3/02/2026 by issuing the following final orders: 7. ***The Applicant’s prayer for a temporary injunction restraining the Respondent from managing, maintaining, or coordinating day-to-day operations on the suit property known as Title Number KABETE/L.KABETE/4001 (erroneously cited as 4002) is hereby denied, and the ad-interim ex-parte injunction orders are vacated to prevent the structural paralysis and deterioration of the rental units.*** 8. ***An order is hereby issued restraining both the Applicant and the Respondent, whether by themselves, their agents, servants, or proxies, from transferring, charging, leasing to new long-term tenants, alienating, or in any manner disposing of or encumbering the title or the land parcel of the suit property without the express written consent of both parties or an order of this Court, pending the final hearing and determination of the main suit.*** 9. ***An order is hereby issued compelling the Plaintiff/Applicant to file and serve within thirty days from the date hereof a full, accurate, and verified account of all rental income received, collected, or pocketed by her from the suit property for the immediate preceding two years, including all disbursements made therefrom.*** 10. ***An order is hereby issued compelling the Defendant/Respondent to file and serve within thirty days from the date hereof a full, accurate, and verified account of all rental income collected locally and all operational expenditures, repairs, caretaker costs, and tenant-related legal expenses incurred by him on the suit property for the immediate preceding two years.*** 11. ***An order is hereby issued requiring the parties to jointly open an interest-bearing escrow account with a tier-one commercial bank within forty-five days from the date hereof, to be administered under the joint signatures of both parties or their designated legal representatives.*** 12. ***An order is hereby issued directing that all future rental proceeds collected from the tenants of the suit property, beginning from the next billing cycle following this Ruling, be deposited directly into the said joint interest-bearing escrow account, from which net profits shall be preserved for the beneficiaries of the trust after deducting verified operational expenses as agreed by the parties or ordered by the Court.*** 13. ***The costs of this application shall abide the outcome of the main suit.*** 14. Orders Accordingly. **DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON 30TH DAY OF JULY 2026.** **.................................** **MOGENI J** **JUDGE** **In the presence of:** Miss Balantine Khaminwa for the Plaintiff/Applicant Miss Wanjiku holding brief for Ms. Mukoma for the Defendant/Respondent Mr. Melita - Court Assistant **................................** **MOGENI J** **JUDGE**