https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4362

Ndaka & 2 others v Mwongela & 6 others (Environment and Land Case E021 of 2025) [2026] KEELC 4362 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEELC 4362 (KLR) Republic of Kenya In the Environment and Land Court at Makueni Environment and Land Case E021 of 2025 EO Obaga, J July 14, 2026 Between Benjamin Ndula Ndaka 1st Plaintiff Josephine Wayua Mwinzi 2nd Plaintiff Paulina Muluka Musembi 3rd Plaintiff and Caroline Ngina Mwongela 1st Defendant Seth Wanzau 2nd Defendant Nicholas Mutua Nzioka 3rd Defendant Fredrick Mutia Mwaiwa 4th Defendant The Land Registrar, Makueni 5th Defendant Rafiki Microfinance Bank Ltd 6th Defendant The Attorney General 7th Defendant Ruling 1.Before this court for determination is the application dated 29th May, 2025 by the Plaintiffs/Applicants. The following orders have been sought: -1.[Spent]2.[Spent]3.That pending the hearing and determination of this suit, an order of injunction do issue restraining the defendants/respondents whether by themselves, their agents and/or any other person claiming under them from in any way at all engaging in any acts of dispossessing, eviction, subdivision and/or curtailing use by the plaintiffs/applicants all those parcel of land known as Makueni/unoa/2790 and 2798.4.That the costs of and incidental to this application be borne by the Defendants/Respondents. 2.The application is premised on the grounds appearing on its face in addition to the supporting affidavit of Josephine Wayua Mwinzi sworn on even date. 3.The deponent averred that the Applicants are the beneficial owners and occupants of land parcels Nos. Makueni/UNOA/2790 and 2798 having purchased them from the 2nd Respondent. That the said properties are registered in the names of the 3rd and 4th Respondents having purchased them through an auction conducted by the 6th Respondent. The deponent stated that the properties are extensively developed with commercial buildings which are fully occupied. 4.The deponent averred that they have enjoyed quiet possession of their respective properties to date without any interference from the Defendants. She further averred that on 10/7/2017, she found statutory notices of sale affixed to the suit premises by the 3rd Respondent requiring payment of Kshs. 293,734.58/= by the 1st Respondent arising from a charge over the suit properties in favour of the 6th Respondent. That the 3rd Respondent has subsequently issued notices to the tenants directing them to pay rent to his account which is a violation of the Applicants’ rights as the landlords. 5.The deponent averred that they have filed Makueni HCCC No. 4 of 2018 where they have challenged the charge that was registered against their parcels of land. She contended that there is need for this court to delve into the issue of how the suit properties were disposed and how the 2nd Respondent fraudulently transferred the land to the 1st Respondent. 6.The 6th Respondent filed a replying affidavit sworn by its Debt Recovery Manager, John Langat on 8th July, 2025. He averred that the 6th Defendant did indeed exercise its statutory power of sale over the suit properties known as Makueni/UNOA/2790 and Makueni/UNOA/2798 vide a public auction in favour of the 4th and 3rd Respondents respectively. 7.The deponent confirmed that indeed the 6th Respondent issued statutory notices in the exercise of its statutory power of sale. He denied that the suit properties are owned by the 1st, 2nd and 3rd Applicants. That the bank advanced a loan facility of Kshs.10,000,000/= to the 1st Defendant vide an offer letter dated 4th February, 2015 against the suit properties herein as the securities. He added that before registration of the charges, the 6th Defendant conducted thorough due diligence. 8.The deponent contended that the purported sale agreements annexed to the supporting affidavit are shams as they cannot be pegged on the suit properties. He further averred that there exists another similar suit Makueni ELC Case No. 36 of 2019 over ownership of the suit properties which was instigated by the Applicants. He concluded that the Applicants had not made out a case against the against the 6th Respondent to warrant the issuance of interim orders as sought. 9.The 1st Respondent filed a replying affidavit sworn on 7th July, 2025 in opposition to the application. She averred that the matter herein is res judicata the same having been determined in Makueni ELC Case No. 331 of 2017 in favour of the Respondents. That the Applicants are forum shopping and therefore the application is an abuse of court process and should be dismissed. 10.The 4th Respondent filed a replying affidavit sworn on his behalf and on behalf of the 3rd Respondent on 23rd July, 2025. He averred that he is the registered proprietor of land Parcel No. Makueni/Unoa/2790 whereas the 3rd Respondent is the registered proprietor of land Parcel No. Makueni/UNOA/2798. He averred that they lawfully purchased the suit properties in a public auction that was conducted by licensed auctioneers on behalf of the 6th Respondent. 11.He further averred that the Applicants had not demonstrated any legal or equitable interest in the suit properties. He contended that the Applicants’ continued occupation of the suit properties has deprived the 3rd and 4th Respondents of the enjoyment and use of the properties contrary to Article 40 of the Constitution. He urged the court to dismiss the application with costs. 12.The Applicants filed a further affidavit sworn on their behalf by Josephine Wayua Mwinzi on 5th February, 2026. She averred that the present suit involves new parties specifically the 3rd and 4th Defendants who were not part of ELC No. 331 of 2017 and therefore the rights and titles held by them have never been adjudicated upon. That the 6th Defendant’s failure to conduct a site visit while carrying out its due diligence makes it a party to the fraud. 13.The deponent contended that despite the massive developments that they had made in the suit properties, neither the 1st nor the 2nd Defendant ever took action against them for trespass during their years of occupation. 14.The application was disposed of by way of written submissions. 15.In the Applicants’ submissions dated 5th February, 2026, Counsel submitted the Applicants had demonstrated the principles set out in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358. Submitting on whether the Applicants have shown a prima facie case, Counsel contended that the Applicants paid the full purchase price for the suit properties and were placed into possession by the 2nd Defendant. That upon payment and taking possession, equity intervened to protect the Applicants’ beneficial interest. 16.Submitting on irreparable injury, Counsel argued that the Applicants’ proprietary interests in the suit properties would be permanently undermined if the orders sought are not issued pending trial as they risk losing commercial properties that provide their only source of livelihood. 17.On balance of convenience, Counsel submitted that the Applicants are in possession of the suit properties and refusing to grant the orders sought would occasion greater hardship than the inconvenience to the Defendants. 18.In the 6th Respondent’s submissions dated 6th March 2026, Counsel argued that the 6th Respondent had been improperly joined in these proceedings as it had never been aware of any ownership dispute between the Applicants and the 1st – 4th Defendants over the suit properties. Counsel further contended that the 6th Respondent has no interest in the suit properties. It was Counsel’s submission that the 6th Respondent does not have any cause to champion over the substratum of the matter. 19.Counsel submitted that the Applicants have approached this court with unclean hands by deliberately failing to disclose the existence of previous litigation vide Makueni ELC Case No. 331 of 2017 as well as parallel litigation vide Makueni ELC Case No. 36 of 2019. Counsel urged the court to dismiss the application with costs. 20.The 3rd and 4th Respondents filed their submissions dated 16th March, 2026. On their behalf, Counsel submitted that the present application is res judicata as the issues raised herein were directly and substantially in issue in Makueni ELC Case No. 331 of 2017. Counsel argued that this court is divested of the jurisdiction to entertain the present application. 21.It was submitted that the Applicants had not established a prima facie case because the 3rd and 4th Respondents purchased the suit properties at a public auction after the 6th Defendant had lawfully exercised its statutory power of sale. 22.Counsel submitted that the Applicants had not demonstrated that they will suffer irreparable harm which is incapable of compensation by damages. On balance of convenience, Counsel contended that granting the orders sought would undermine the sanctity of public auctions and unjustly prejudice the Respondents. It was submitted that the 3rd and 4th Respondents are bona fide purchasers for value without notice. Urging the court to find that the Applicants had failed to meet the threshold for grant of an order of injunction, Counsel submitted that the application should be dismissed with costs. 23.The 1st and 2nd Respondents filed their written submissions dated 13th March, 2026. On their behalf, Counsel submitted that this court lacks jurisdiction to entertain the matter on account of the doctrine of res judicata, the issues herein having been conclusively determined in Makueni ELC Case No. 331 of 2017. Counsel urged the court to dismiss the application with costs. 24.The sole issue for determination is whether the Applicants have met the legal threshold for issuance of the injunctive orders sought. 25.The prerequisite conditions for a grant of injunctive orders under Order 40 Rule 1(a) of the Civil Procedure Rules, 2010 were determined in the celebrated case of Giella v Cassman Brown & Co Ltd [1973] 1 EA 358 at 360 (CAK) as follows:-“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. 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 adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience. (E.A. Industries v. Trufoods, [1972] E.A. 420.)” 26.In Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR the Court of Appeal defined a prima facie case in the following terms: -“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will 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.” 27.A perusal of the application and the supporting affidavit reveals that the suit properties are legally registered in the names of the 3rd and 4th Respondents (Exhibits ‘JWM-7a’ & ‘JWM-7b’). It is an undisputed fact that the suit properties were sold to the 3rd and 4th Respondents vide a memorandum of sale dated 6th September, 2018. 28.The Applicants’ claim to the suit properties is founded upon several sale agreements executed by previous third-party owners who had purportedly purchased the land from the 2nd Respondent. They also contend that it is by virtue of the said contracts that they took possession of the suit premises and have made significant developments thereon. On the other hand, the 3rd and 4th Respondents claim that they are bona fide purchasers for value after lawfully acquiring the suit properties vide a public auction that was conducted by the 6th Respondent exercising its statutory power of sale. 29.Section 26 of the Land Registration Act, 2012 enjoins this Court to recognize a certificate of title or lease as prima facie evidence of ownership of land. The law provides as follows: -(1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—a.On the ground of fraud or misrepresentation to which the person is proved to be a party; orb.Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 30.In the case of Airland Tours & Travels Ltd versus National Industrial Credit Bank Milimani High Court Civil Case No. 1234 of 2002, the court aptly held as follows: -“In an interlocutory application, the court is not required to make any conclusive or definitive findings of fact or law, most certainly not on the basis of contradictory affidavit evidence or disputed provisions of the law.” 31.Similarly, in In Julius Kuria Nganga v Wambui Kigamba [2017] eKLR, the Court stated as follows: -“Further, the court will also take into account that at this stage the court is not called upon to determine the very issues with finality but only to find out if the Applicant has established that he deserved the orders sought basing it on the laid down criteria. See the case of Edwin Kamau Muniu vs Barclays Bank of Kenya Ltd Nairobi (Milimani) High Court, Civil Case No.1118 of 2002, where the court held that:“in an interlocutory application, the court is not required to determine the very issues which will be canvassed at the trial with finality. All the court is entitled to at that stage is whether the Applicant is entitled to an injunction sought on the usual criteria”.” 32.At this interlocutory stage, the Applicants herein cannot prove any of the vitiating factors under Section 26 (1) (a) and (b) of the Land Registration Act. While the Applicants allege fraudulent conduct on the part of the Respondents, the said allegations have yet to be heard and proved. Unfortunately, the Applicants have not satisfied this Court that they have a prima facie case against the Respondents on the basis of the material that they have presented. 33.The Court of Appeal in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR opined as follows: -“…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 stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… 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 are 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.” 34.Seeing that the Applicants have not proved a prima facie case for the grant of interlocutory relief, it is not worthwhile to consider the other two limbs as per the observations of the Court of Appeal in Nguruman Limited (supra). A conclusive determination of the validity of the 3rd and 4th Defendants’ title to the suit properties can only be determined at a full hearing of the parties. 35.The upshot of the foregoing is that the application dated 29th May, 2025 is devoid of merit and is to be dismissed with costs.It is so ordered. HON. E. O. OBAGA, FCIArbJUDGERULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 14TH DAY OF JULY, 2026.In The Presence Of:Mr. Kithuka for Plaintiffs/Applicant.Mr. Ndichu for 6th Defendant/RespondentMr. Kioko for 1st and 2nd RespondentsMr. Mbuthia for 3rd and 4th RespondentsCourt Assistants – Kilonzo & Musyoki