https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5017

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCLC NO. E175 OF 2026** **JOSEPH GIKURUMI NDOTONO………...…………..PLAINTIFF/APPLICANT** **(suing as the administrator of the Estate of SOLOMON NDOTONO)** **VERSUS** **JAMES NJONGORO KUNGU……………….1ST DEFENDANT/RESPONDENT** **THE REGISTRAR OF LANDS** **GATUNDU LAND REGISTRY………………2ND DEFENDANT/RESPONDENT** **THE ATTORNEY GENERAL……………...…3RD DEFENDANT/RESPONDENT** **RULING** 1. This Ruling is in respect of the Notice of Motion Application dated 26/08/2025 and filed by the Applicant brought under Section 1A, 1 B, 3A, Section 63(e) of the Civil Procedure Act, Order 40 rule 2, 10, Order 51 rule 1 of the Civil Procedure Rule 2010 and all other enabling provision of the law for orders that: 2. Spent. 3. **THAT** pending inter-partes hearing and determination of this application this Honourable Court be pleased to restrain the Defendants/Respondents whether by themselves, their employees, their agents and/or servants or any other person whatsoever acting for them from anyway interfering, altering and/or removing the proprietary of LR NO. NGENDA/KAHUGUINI/743. 4. **THAT** the Defendants/Respondents be restrained by themselves, their agents or servants or any other person whosoever acting for them from in any way trespassing, encroaching, beaconing and/or putting structurers on the suit property. 5. **THAT** this Honourable Court be pleased to cancel/annual the title deeds fraudulently obtained and held by the 1st Respondent with the assistance of the 2nd Respondent. 6. **THAT** this Honourable Court be pleased to grant an order declaring that the Plaintiffs' family are the rightful, lawful, valid and genuine owners of the suit property LR NO. NGENDA/KAHUGUINI/743. 7. **THAT** pending inter-partes hearing and determination of the main suit this Honourable Court be pleased to grant a permanent order of injunction restraining the Defendants/Respondents whether by themselves, their employees, their agents and/or servants or any other person whatsoever acting for them from any way interfering, altering and/or removing the proprietary of LR NO. NGENDA/KAHUGUINI/743. 8. **THAT** the Honourable Court do issue any such further or other orders as it may deem fit and in the interest of justice. 9. **THAT** the costs of this application be borne by the Respondents. 10. The Application supported by the grounds set out hereunder and the annexed affidavit of JOSEPH GIKURUMI NDOTONO and such further grounds to be adduced at the hearing hereof:- 11. The Plaintiff/Applicants' family estate (Solomon Ndotono) LR NO. NGENDAIKAHUGUINI1743 measuring six decimal, seven five (6.75 acres) is in danger of fraudulently being grabbed by the 1st Defendant/Respondent who has illegally obtained a title deed from Gatundu Land Registry in respect of the same. 12. The 1st Defendant/Respondent has illegally and fraudulently entered into the suit property and is in the process of marking the same for sub-division and disposal. 13. The Plaintiff/Applicants' family stand to loose their inheritance in the event that the Court will not intervene and halt the fraudulent activities of the Respondent. 14. **THAT** unless the Court injuncts the 1st Defendant/Respondent from his illegal activities the Plaintiff/Applicant's fraction family stans to loose their only inheritance subsequently loss and damage will be occasioned. 15. **THAT** unless the orders requested are granted, the Applicants is likely to suffer irreparable damage. 16. **THAT** if the injunctive order is not granted the application will be rendered nugatory. 17. **THAT** the Applicant therefore prays for temporary orders of injunction pending inter-partes hearing and pending hearing and determination of the application. 18. **THAT** it is in the interest of justice that the orders sought be granted. 19. The Applicant is seeking urgent Court intervention to protect a 6.75-acre family estate (**LR NO. NGENDA/KAHUGUINI/743**) from being permanently lost. The core grounds are that the 1st Respondent fraudulently obtained a title deed for the property through the Gatundu Land Registry, has unlawfully entered the land, and is currently preparing to subdivide and sell it. The Applicant argues that without an immediate injunction to freeze these activities, the family will lose their rightful inheritance, causing them irreparable harm and rendering the entire law suit pointless. 20. The Deponent, Joseph Gikurumi Ndotono, deposes in his capacity as a biological son and a duly authorized administrator of the estate of the late Solomon Ndotono evidenced by the Grant of Representation marked **"JGN1"** and the co-administrator’s authorization letter marked **"JGN2"** averring that the suit property, **LR. No. NGENDA/KAHUGUINI/1743** situated in Gatundu, Kiambu County, belongs to the deceased’s estate but has been fraudulently interfered with by the Respondents. 21. The Deponent states that upon conducting an official land Search at the Gatundu Land Registry, the family discovered to their consternation that the parcel had been unlawfully transferred to the 1st Respondent, James Njongoro Kungu, as demonstrated by the official Search Certificate marked **"JGN3"**. This fraudulent expropriation prompted the family to lodge criminal proceedings under **MCCR No. E337 of 2023** at the Gatundu Law Courts, wherein family members were bonded to testify as prosecution witnesses pursuant to the Court bonds marked **"JGN4"**, culminating in a Judgment marked **"JGN5"** where the evidence overwhelmingly favored the Applicants' family. 22. A subsequent registry inspection revealed severe falsification of public records, as evidenced by the compromised Green Card marked **"JGN6"**. The Deponent further laments that the 1st Respondent has since illegally trespassed onto the ancestral land which holds immense sentimental value as the burial site of their late parents and siblings and has commenced unlawful subdivision and disposal. Consequently, the Deponent prays that this Honourable Court intervenes to restrain the Respondents from altering land records (including green cards, mutations, and survey maps), asserting that unless injunctive relief is urgently granted, the Applicant’s family will suffer permanent, immeasurable, and irreparable loss and damage. 23. The 1st Defendant, James Njongoro Kungu, deposes in opposition to the Notice of Motion dated 26/08/2025, categorically averring that the suit property, Land Parcel No. Ngenda/Kahuguini/743, ceased to exist on 26/01/2021 after he lawfully subdivided it into two distinct constituent parcels, namely Ngenda/Kahuguini/1923 and Ngenda/Kahuguini/1924, as evidenced by the official registry Green Cards annexed and marked **"JNK 1A"** and **"JNK 1B"** respectively. 24. The Deponent outlines the historical root of title, asserting that he was registered as the absolute owner of the parent parcel on 25/02/1992 following a lawful gift *inter vivos* from his late father, Kungu Kirira, who had systematically purchased the entirety of the land from the Plaintiff’s late father, Solomon Ndotono. This root of title is traced through two distinct Sale Agreements: first, a 1973 agreement for the purchase of a 3-acre portion marked **"JNK 2"**, and second, a subsequent agreement dated 14/01/1977 for the remaining 3.75 acres marked **"JNK 3"**, with the transaction further finalized through executed transfer forms dated 12/07/1978 and a Land Control Board consent to transfer dated 21/07/1978, marked **"JNK 4A"** and **"JNK 4B"** respectively. 25. The Deponent further avers that when a dispute arose in 1977 initiated by the Plaintiff’s late brother, David Waiganjo, the Deponent's father successfully litigated the matter in **Nairobi High Court Civil Case No. 2605 of 1977**. In support of that historical suit, his father’s Affidavit dated 27/01/1979 is annexed as **"JNK 5"**, which is crucially corroborated by the Plaintiff’s own father’s Replying Affidavits dated 1979 and 25/01/1986, marked **"JNK 6"** and **"JNK 7"**, wherein Solomon Ndotono explicitly admitted to the sale and disclaimed any residual interest in the suit property. Consequently, the Deponent asserts that ownership of the land passed to his family in 1977, meaning it could not legally form part of the estate of Solomon Ndotono during the filing of **Gatundu Succession Cause No. 51 of 2019.** 26. Addressing the criminal proceedings raised by the Applicant, the Deponent confirms he was the accused person in **Gatundu Chief Magistrate’s Criminal Case No. E337 of 2023** on charges of fraudulent land registration, but vehemently points out that the Plaintiff deliberately chose to hoodwink the Court by concealing the final outcome of that case; specifically, that the criminal Court delivered a final Judgment on 8/07/2025 fully acquitting the Deponent under Section 215 of the Criminal Procedure Code, as evidenced by the certified copy of the Judgment marked **"JNK 9"**. 27. Ultimately, the 1st Defendant contends that the instant civil application constitutes a bad-faith attempt to relitigate a concluded criminal matter, that the Plaintiff has failed to meet the threshold for injunctive relief given the Deponent’s uninterrupted physical possession since 1992, and that any purported claim over the property is fundamentally dead on arrival and time-barred by operation of Section 7 of the Limitation of Actions Act, thereby rendering the prayers sought untenable in law and equity. 28. The 2nd and 3rd Respondents did not file any response to the Application. 29. The Court issued directions that the parties were to file and exchange written submissions on 12/03/2026. At the time of writing this Ruling only the 1st Respondent had filed their submissions dated 10/03/2026. 30. The 1st Respondent’s submissions move this Honourable Court to dismiss the application on the primary ground that the substratum of the motion is legally non-existent. It is contended that the suit property, originally registered as Land Parcel No. Ngenda/Kahuguini/743, ceased to exist on 26/01/2021 upon its lawful subdivision into two resultant parcels, namely Ngenda/Kahuguini/1923 and Ngenda/Kahuguini/1924, as supported by the Green Cards marked **"JNK 1A"** and **"JNK 1B"**. 31. The 1st Respondent traces his unassailable root of title to a 1992 gift inter vivos from his late father, Kungu Kiriira, who had systematically purchased the entire 6.75 acres from the Applicant’s late father, Solomon Ndotono, through separate Sale Agreements in 1973 and 1977. This historical title was validated under **Nairobi High Court Civil Case No. 2605 of 1977** after the Applicant's father initially reneged on the transfer, and the proprietary rights were further vindicated on 8th July 2025 when the **Gatundu Criminal Case No. E337 of 2023** wherein the 1st Respondent was vexatiously charged with obtaining land registration by false pretenses culminated in a full acquittal. 32. In addressing the legal threshold for the grant of temporary injunctive relief, the 1st Respondent asserts that the Applicant has failed to satisfy the singular triptych governing interlocutory injunctions. Citing the principles reiterated by Ombwayo, J. in **Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR),** the 1st Respondent submits that the Applicant has failed to demonstrate a prima facie case with a probability of success, has offered no proof of imminent risk or irreparable harm that cannot be compensated by an award of damages, and that the balance of convenience heavily tilts in favor of preserving the 1st Respondent's uninterrupted physical possession enjoyed since 1992. Because the registration of the parent parcel was closed half a decade ago, the 1st Respondent notes that the Court cannot issue an injunction against a non-existent property, rendering the prayers seeking to restrain interference with the parent parcel defective, untenable, and dead-on arrival. 33. Furthermore, the 1st Respondent vehemently objects to the nature of the remedies sought, arguing that the application is fatally incompetent as it surreptitiously seeks final, permanent, and mandatory reliefs at an interlocutory stage. Invoking the decision of Matheka, J. in **Durahard Ltd v Mbarak & 3 others [2023] KEELC 21001 (KLR),** which adopted the strictures of the Court of Appeal in **Kenya Power & Lighting Co. Limited v Sheriff Molana Habib (2018) eKLR,** the 1st Respondent underscores the clear procedural dichotomy between temporary orders and permanent or declaratory decrees. It is urged that prayers for the cancellation of titles and final declarations of ownership are substantive reliefs that can only be safely determined upon a full ventilation of merits and cross-examination of witnesses at the main trial. Consequently, the 1st Respondent submits that granting such final orders at this interim juncture would be a prejudicial pre-judgment of the suit, tantamount to condemning the 1st Respondent unheard, and therefore prays for the absolute dismissal of the application with costs. **Issues for Determination** 1. Having carefully considered the Applicant's Notice of Motion dated 26/08/2025, the supporting affidavit of Joseph Gikurumi Ndotono, the 1st Respondent’s Replying Affidavit, and the written submissions on record, this Court finds that the application falls for determination upon the following three clear issues: 2. *Whether the interlocutory application is procedurally incompetent by reason of seeking final, substantive, and declaratory reliefs at an interim stage.* 3. *Whether the Applicant has met the threshold for the grant of temporary injunctive orders under Order 40 of the Civil Procedure Rules.* 4. *Whether an injunction can issue against a parent registration parcel that has been closed following subdivision.* **Analysis of the Application and Pleadings** 1. The Applicant has approached this Court seeking a mix of interim and final reliefs. A critical examination of the prayers reveals a severe procedural mismatch. Prayers 4 and 5 seek the outright cancellation of title deeds held by the 1st Respondent and a solemn judicial declaration that the Plaintiff's family holds valid, genuine, and exclusive ownership over the suit land. Such prayers are, by their very nature, final remedies. Interlocutory applications are structurally designed to preserve the *status quo* pending the final determination of the rights of competing parties, not to grant the ultimate fruits of a trial before a single witness has taken the stand. By inserting permanent and declaratory prayers into a miscellaneous motion, the Applicant invites this Court to summarily determine the main suit on Affidavit evidence. 2. On the factual matrix, a deep dive into the cross-pleadings reveals that the Applicant’s case rests on the assertion that the land remains part of the un-allotted estate of the late Solomon Ndotono, and that a search at the Gatundu Registry revealed massive tampering with the Green Card. However, this assertion is heavily countered by the 1st Respondent’s contextual documentary trail. The 1st Respondent has produced historical land purchase agreements from 1973 and 1977, Land Control Board consents from 1978, and, most damaging to the Applicant's narrative, a set of sworn Affidavits from the 1st Respondent’s own father, Solomon Ndotono, dating back to 1979 and 1986 under **Nairobi High Court Civil Case No. 2605 of 1977**. 3. In those historical records, the deceased patriarch explicitly admitted under oath that he sold the land and relinquished his proprietary claims. Furthermore, while the Applicant heavily emphasized a criminal complaint filed against the 1st Respondent, the 1st Respondent has supplied the certified Judgment of 8/07/2025 showing a clean acquittal under Section 215 of the Criminal Procedure Code. The Applicant’s concealment of this acquittal is a material non-disclosure of fact that weighs heavily against the equitable standard required for injunctive relief. 4. On the first issue of procedural competence, it is an immutable tenet of civil procedure that a party cannot secure final reliefs through an interlocutory application. *Black’s Law Dictionary* defines an interlocutory order as one that is *"temporary or provisional, and not intended to be a final disposition of the matter or right in dispute."* By seeking cancellation of titles and declarations of ownership at this stage, the Applicant invites the Court to fall into procedural error. In **Olive Mwihaki Mugenda & Another v Okiya Omtata Okoiti & 4 Others [2016] eKLR,** the Court verbatim stated: ***“…. the Court should not grant interim relief which amounts to final relief."*** 1. The Applicant has fundamentally failed to establish a *prima facie* case with a probability of success the foundational pillar established in the seminal case of **Giella v. Cassman Brown & Co. Ltd [1973] EA 358.** A *prima facie* case is not a mere assertable claim; it must look like a right that will most likely succeed when the full evidence is tested. As Ringera, J. classicly observed in **Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125:** ***"A prima facie case in a civil application includes a case in which on the material presented to the Court a tribunal properly directing itself on the law and fact would elevate it to a right. The mere allegation of fraud without a continuous, unbroken chain of prima facie proof does not shift the evidentiary burden at an interlocutory stage."*** 1. The Applicant's claim is thoroughly fractured by the 1st Respondent’s uninterrupted possession since 1992 and the historical admissions of the Applicant's predecessor-in-title. 2. Furthermore, equity does not act in vain, nor does it issue orders against legal phantoms. The 1st Respondent’s unrefuted evidence shows that the parent title, Land Parcel No. Ngenda/Kahuguini/743, was closed on 26/01/2021 upon subdivision into two new live registers: Ngenda/Kahuguini/1923 and Ngenda/Kahuguini/1924. In land law, once a register is closed following a lawful subdivision, the parent parcel ceases to exist as a separate piece of property. A Court cannot injunct a closed register. 3. Because the Applicant’s motion exclusively targets the closed parent title and fails to address the resultant parcels, the application is technically blind to the true status of the registry and cannot be sustained. 4. Lord Diplock in **American Cyanamid Co. vs Ethicon Limited (1975) 1 ALL ER 504; (1975) A.C. 396 HL at 510** observed as follows; ***“It is no part of the Court's function at this stage of the litigation to try and resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.”*** 1. In the upshot, this Court finds that the Notice of Motion dated 26/08/2025 is procedurally defective, lacks substantive merit under the **Giella v. Cassman Brown** (**supra**) tripartite standard, and seeks to restrict an inactive property register. Consequently, the application is hereby spent and dismissed. 2. The Court issues the following final orders: 3. ***The Applicant's Notice of Motion dated 26/08/2025 be and is hereby dismissed in its entirety.*** 4. ***The interim prayers for temporary injunctions, cancellation of titles, and declarations of ownership at this interlocutory stage are declined.*** 5. ***The costs of this application shall be borne by the Applicant and awarded to the 1st Respondent in any event.*** 6. ***Parties to go for Pre-trial Conference before the Deputy Registrar on 1/10/2026.*** 7. Orders Accordingly. **DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 30TH DAY OF JULY, 2026.** ……………………… **MOGENI J** **JUDGE** **In the presence of: -** Miss Kanja holding brief for Njoroge for the Plaintiff/Applicant Defendants/Respondents – Absent Mr. Melita - Court Assistant ……………………… **MOGENI J** **JUDGE**