https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3900

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCLC CASE NO. E127 OF 2025** **JITENDRA RAMNIKLAL NAKER::::::::::::::1ST PLAINTIFF/APPLICANT** **JAYANT RAMNIKLAL NAKER:::::::::::::::::2ND PLAINTIFF/APPLICANT** **MAHESHCHANDRA RAMNIKLAL NAKER:::::::::::::::::::::::::::::::::::::::::::::::::3RD PLAINTIFF/APPLICANT** **NEETA NAKER & PALLAVI MAHESCHANDRA NAKER** *(in their capacity as the legal representatives of the estates of KANATABEN RAMNIKLAL NAKER as well RAMNIKLAL MANISHANKER NAKER and for and on behalf of their heirs and/or beneficiaries of the said KANTABEN RAMNIKLAL NAKER and/or RAMNIKLAL MANISHANKER NAKER together the now deceased partners of Aarem Investments***:::::::::::::::::::::::::::::::::: 4THPLAINTIFFS/APPLICANTS** **VERSUS** **MUKA MUKUU FARMERS COOPERATIVE SOCIETY LIMITED::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT/RESPONDENT** **RULING** The application is dated 19th August 2025 and is brought under Order 40 Rules 1 (a), 2 and 3 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act seeking the following orders; 1. That this Application be certified as urgent and service of the same upon the Defendant's be dispensed with in the first instance; 2. That in view of the urgency of this matter, this Honourable Court do proceed to grant prayer 3 on an interim basis pending the inter partes hearing of this Application. 3. That an injunction do issue restraining the Respondent whether by themselves, their servants, agents or employees as well as any and all other persons evicting, entering, or in any way whatsoever Interfering with the Applicant's use and occupation of the Suit Property and further from claiming any interest or right in the suit property through them or otherwise from entering onto or trespassing upon or occupying or using or remaining thereon or continuing to trespass or from taking possession of or damaging, wasting, developing, selling, leasing, alienating, transferring, charging, mortgaging or in any way from dealing howsoever with all that parcel of land known as Zone 10 Plot No. 1-7 Donyo Sabuk (Sisal area) (herein the “Suit Property”) for an initial period of 14 days and thereafter until the inter partes hearing upon service of this Application on the Defendants and until the hearing and final determination of this suit or until further Orders of this Honourable Court; 4. That costs of this Application be provided for. The application is based on the following grounds that the Respondent vide a Memorandum dated 16th May 1994 gave approval and sold seven plots at Donyo Sabuk (Suit Property) to Mr. Ramniklal Naker (now deceased) which he made payments towards the purchase of the same. Mr. Ramniklal Naker passed away in the year 1999, following which the remaining partners of Aarem Investments, being the other Applicants herein, assumed control of the assets, including the Suit Property. That the Respondent herein actively engaged the Applicants in various activities concerning Suit Property and even issued them with a Beacon Certificate sometime in 2007. That the Applicants took possession of the Suit Property and occupied it continuously for over two decades, treating it as their own. At the time of taking possession, the Respondent had not yet issued a certificate of title but had assured the Applicants that the same would be issued in due course. That the Applicants requested the Respondent vide a letter dated 19th August 2021 to appoint a surveyor to measure the suit plots in a bid to fence them. However, the Respondents responded on 11th September 2021 informing the Applicants to appear before the Executive Committee for discussions on the issue of carrying out a survey exercise. That despite numerous follow ups on the issuance of the Certificate of Title for the Suit Property, the Respondents have failed, refused and/or neglected to issue the certificates of title to the Applicants as promised. This delay has caused significant inconvenience and uncertainty to the Applicants who continue to occupy the Suit Property and even have a caretaker on board. That the Applicants were informed via the Respondent's letter of 23rd October 2021 that following a probe report it had been concluded that the said Suit Property did not exist, and the Applicants did not own any of the Property in that area despite having received consideration and having engaged them in activities confirming ownership. Indeed, on 17th June 2025, the Defendant issued a letter demanding that the Plaintiffs vacate from the Suit Property without any basis in law. That the Applicants are apprehensive that unless the orders sought herein are granted, the Defendants/Respondents will continue trespassing on the suit property and or to sell, lease, charge, develop or alienate the same and have adverse dealings over the suit property whereby the Plaintiff/Applicants are likely to suffer irreparable harm which cannot be compensated in damages. The Plaintiff/Applicants have demonstrated that they have a prima facie case with a probability of success against the Defendants/Respondents. In the circumstances of this suit, the balance of convenience tilts in favour of granting the orders sought. This court has considered the application and the submissions therein. 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 Plaintiffs 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.”* 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 Respondent vide a Memorandum dated 16th May 1994 gave approval and sold seven plots at Donyo Sabuk (Suit Property) to Mr. Ramniklal Naker (now deceased) which he made payments towards the purchase of the same. They annext a copy of the sale agreement and the memorandum JRN 3&4. They also annexed payment receipts JRN 5&6. 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 Respondent admits that the said Memorandum was entered into but that the same was later revoked and/or cancelled through the office of the Cooperative Commissioner vide an inquiry report of October 2008 and this was communicated to persons who had bought land in the area. That the Applicants were offered alternative land for the affected portion and a title issued in their favour being title deed No. Donyo Sabuk/Donyo Sabuk West Block 1/5521 in the names of Naheshchandra Ramniklal Manishaker and Naker Jayant Ramniklal. The Applicants on the other hand stated that after Mr. Ramniklal Naker passed away in the year 1999, the remaining partners of Aarem Investments, being the other Applicants herein, assumed control of the assets, including the Suit Property. That the Respondent herein actively engaged the Applicants in various activities concerning Suit Property and even issued them with a Beacon Certificate sometime in 2007. That the Applicants took possession of the Suit Property and occupied it continuously for over two decades, treating it as their own. They annexed several correspondences between the Respondent and squatters recognizing their ownership JRN7. Bearing this in mind, I am convinced that there is a risk in not granting orders of temporary injunction than 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 merited and I order that status quo be maintained pending the hearing and determination of the suit. Parties are advised to comply with order 11 and set down the matter for hearing. Costs to be in the cause. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 23RD DAY OF JUNE 2026.** **N.A. MATHEKA** **JUDGE**