https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4811

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI** **ELC CASE NO. E457 of 2024** **JOAN NJOKI NDUNGI (Suing as the Representative of the estate of SAMUEL GICHURU)……………………………………PLAINTIFF** **-VERSUS-** **SAMUEL KIMONDO & 31 OTHERS......................DEFENDANTS** **RULING** 1. The Applicant filed an Application Pursuant to Sections 1A, 1B, 3A of the Civil Procedure Act Cap 21 of the Laws of Kenya, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Section 152 (E) & (G) of the Land Laws (Amendment) Act No. 28 of 2016, Regulation 65 of Legal Notice 280 of 2017 (Land Regulations) seeking the following orders: 2. **Spent** 3. **THAT the Honourable Court be pleased to issue an eviction order directing that the Respondents herein, their agents, servants, employees and or any person acting under their authority from them be evicted from Part B the suit property known as L.R No. 209/2412 consisting of stalls numbers 1,2,3,4,5,6,7,23,24,25,27 and 28 on the ground floor, first floor and the roof top of the property.** 4. **THAT thereafter, the Honourable Court be pleased to issue an injunction Order restraining the Respondents herein, their agents, servants, employees and or any person acting under their authority from trespassing, re-entering or continuing with the occupation or purporting to carry on any business from Part B the suit property known as LR No. 209/2412 consisting of stalls numbers 1,23,4,5,6,7,23,24,25,27 and 28 on the ground floor, first floor and the. roof. top of the property.** 5. **THAT the Honourable Court be pleased to assess general damages payable to the Plaintiff/ Applicant for trespass and unlawful occupation of the property.** 6. **THAT the Honourable Court be pleased to make an Order that the said eviction be carried out by the Court Bailiff with the assistance of the Officer Commanding Station (OCS) Kamukunji Police Station;** 7. **THAT the Honourable Court be pleased to issue any other Order as it may deem fit and expedient in the circumstances of this case.** 8. **THAT costs of this Application be in the cause.** 9. The grounds in support of the Application were set out in the Affidavit of Joan Njoki Ndungi, where she averred that the Late James Samuel Gichuru (hereinafter referred to as the deceased) was the Applicant’s father and whose Estate the Applicant was an Administratrix thereof, was a co-owner alongside Gathumbi Komu (deceased) as tenants in common of the property L.R No. 209/2412(hereinafter referred to as the suit property). 10. The Legal representatives of the Estate of Gathumbi Komu filed a suit in ELC No. 322 of 2018 (Peter Ndungu Gathumbi &2 others (suing as the legal representatives of the Estate of Gathumbi Komu) versus Joan Njoki (sued as the legal representative of the Estate of James Samuel Gichuru). 11. That the Honourable Court rendered a ruling on 2nd May, 2023 directing that the suit property be partitioned into two equal, separate and distinct portions to be held independently by the Administrators of the two estates. 12. The Applicant avers that a joint report prepared by **Murakaru Architects** and filed in Court divided the property into two equal portions and allocated Part A of the property to the Estate of Gathumbi Komu (deceased) and Part B to the Estate of James Samuel Gichuru (deceased). 13. The Applicant states that upon allocation of a portion of the said property to the Estate of James Samuel Gichuru,being the sole administratrix and legal representative of the said Estate, she took over the management of Part B of the suit property. The said Part B of the suit property consists of stalls numbers 1,2,3 4,5,6,7,23,24,25,27 and 28. 14. The Applicant further avers that one of the previous occupants, Hassan Abdile, who had occupied the suit property at the behest of the legal representatives of the Estate of Gathumbi Komu (deceased), filed a Reference under BPRT Case No. E215 of 2024 - Hassan Abdille versus Joan Njoki Ndungi, and it was during the pendency of the matter at the Business Premises Rent Tribunal that the Respondents herein illegally and wrongfully trespassed and entered into the suit property and have unlawfully remained in occupation thereof. 15. The Applicant avers that the Respondents have refused and/or declined to remove themselves from the suit property despite numerous pleas by the Applicant for vacant possession of the property. 16. The Applicant avers that the Honourable Tribunal issued an Order on 17th October, 2024 dismissing the reference with no Orders as to costs. **The 4th Respondent’s Response.** 1. The 4th Respondent filed a Replying Affidavit sworn on 12th March, 2025 by Francis Babu and stated that he has been a tenant in the suit property for sixteen (16) years now, having entered the premises in the year 2009 as a sub-tenant. He rented stalls number 22 and 23 therein and is currently paying rent of Kenya shillings Fifty Two Thousand (Kshs. 52,000.00) for both stalls. 2. He further stated that he had rented the stalls from Southern Haulage, who also went by the name Towbah Exhibition, who was all along a lessee of the owners of the building. The 4th Respondent averred that he had initially rented stall numbers 23 and 52 but later surrendered stall number 52 and rented stall number 22 instead from the year 2012. He also stated that the nature of the tenancy is a controlled tenancy since he never had a lease to the premises. He deposed that the suit had been lodged in the wrong court and it should be in the Business Premises Rent Tribunal. 3. He stated that he has been paying rent to the Applicant through his advocates in the bank account as the Applicant had directed all tenants to do so through the notice and as such he has no outstanding arrears for the premises. 4. The 4th Respondent stated that the Applicant was, in the circumstances, estopped from seeking eviction and other orders against him as he was legally in the suit premises as a tenant since he has not been served with an eviction notice. **The 10th Respondent’s Response** 1. The 10th Respondent filed a Replying Affidavit sworn on 10th February,2026 by Cyrus Mulwa Kalendu, where he denied illegally and unlawfully trespassing and entering into the suit property and has unlawfully remained in occupation ever since. 2. He stated that the Applicant had not issued him with a formal demand, notice to vacate, or notice of termination of tenancy as required by law given the nature of his business in the premises. 3. The 10th Respondent stated that the Applicant, through her Counsel, expressly directed all tenants to remit rent to her through the new rent payment details she provided and in compliance with the Applicant’s own directives; he stated that he had been regularly paying rent to the Applicant through the bank account specified by her advocates. He attached the Notice with the statements as proof of payment. 4. The 10th Respondent stated that by dint of collecting rent payments month after month, it confirmed the existence of a landlord-tenant relationship between the Applicant and the 10th Respondent and the action of trespass does not arise from such a relationship. **The Applicant’s submissions** 1. Counsel for the Applicant filed submissions dated 12th May, 2025, submitting that the application herein was served physically upon all the Respondents herein and none of them responded; thus the application was deemed unopposed and sought that the same be allowed as prayed. 2. The Applicant submitted that since the Respondents were not paying rent and/or meeting their obligations as tenants, they remained as trespassers on the property and the most appropriate way to enable her to repossess the property and/or regain entry would be by way of eviction. 3. It was submitted that Trespass has been defined as any intrusion by a person on the land in the possession of another without any justifiable cause. **See, Clerk & Lindsell on Torts, 18+ Edition, page 923, paragraph 18-01 and Section 3 of the Trespass Act.** 4. Counsel submitted that the Applicant was entitled to immediate Orders of eviction against the Respondents herein and further a temporary injunction Order is issued restraining them from re-entering, re-occupying and taking possession or carrying on business from the suit property. 5. That it was necessary and in the interest of justice that the Officer Commanding Station Kamukunji police station offers security as the eviction is conducted. 6. On who was to bear the costs of the Application the Applicant submitted that the general rule on costs is set out in Section 27 of the Civil Procedure Act which provides that the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid. 7. The Applicant submitted that he had suffered financial loss and inconvenience by the Respondent’s actions, and urged the Court to award her costs of the Application. **4th Respondent’s Submissions** 1. Counsel for the 4th Respondent filed their submissions dated 30th May, 2025, submitting that they relied on the Replying Affidavit dated 12th March 2025 opposing the application herein, saying that it is based on lies about the 4th Respondent's tenancy in the suit property. 2. On whether the Applicant is entitled to eviction and injunctive orders against the 4th Respondent, it was submitted that the 4th Respondent has been lawfully occupying the suit premises as a tenant and has consistently met all his obligations. To date, there was no outstanding rent and no evidence has been provided by the Applicant showing default or unlawful occupation. 3. The 4th Respondent submitted that the Applicant was seeking final orders (eviction orders) at the interlocutory stage without allowing the 4th Respondent to be heard. 4. It was further submitted that the Applicant had not demonstrated a prima facie case against the 4th Respondent, nor any irreparable harm that would justify injunctive relief. On the contrary, the balance of convenience favours allowing the 4th Respondent to remain in lawful occupation pending full hearing and that the 4th Respondent is likely to suffer harm as he has been faithfully remitting rent without fail and he was on the verge of being kicked out. 5. The 4th Respondent relied on the case **of *Ephraim Wambu Miano v Kenya Commercial Bank [2002] eKLR while citing Giella v Cassman\_Brown,*** whichoutlined the principles of granting an injunction. 6. On the issue whether the 4th Respondent has a lawful right to be heard and defend the main suit, he submitted he has a right to be heard as established by the provisions of Article 50(1) of the Constitution of Kenya 2010 where the court had already allowed the 4th Respondent to participate in the proceedings by granting him leave to file his Defence out of time on 24th February 2025. 7. It was submitted that eviction at this point on the part of the 4th Respondent would render his Defence moot and defeat the purpose of the Court's earlier orders. 8. On whether the 4th Respondent had not responded to the Application dated 15th November, 2024, it was submitted that their Replying Affidavit dated 12th March 2025 was duly filed on the same day and served upon the Applicant herein. 9. They relied on the case of ***Trust Bank Ltd v Amalo Company Ltd (2002) eKLR****,* stating that a party must not mislead the court by making false assertions. 10. The 4th Respondent submitted that the Applicant's application against the 4th Respondent was premature, unfounded, and procedurally unfair and the same ought to be dismissed with costs. 11. The 10th Respondent has not filed and/or uploaded their submissions as directed by this Honourable Court. **Analysis and Determination** 1. Upon consideration of the Application, responses and submissions, the issues for consideration of this Court are: 2. **Whether eviction orders should issue.** 3. **Whether the Applicant has satisfied the legal threshold for the grant of an injunction.** 4. **Whether the Applicant is entitled to general damages for trespass.** 5. **Whether the Applicant is entitled to general damages.** 6. **Whether the Application is merited.** 7. The Applicant seeks 8. orders of eviction against the Respondents together with an injunction Order restraining the Respondents from trespassing, re-entering or continuing with the occupation or purporting to carry on any business from Part B, assessment of general damages payable to the Applicant for trespass and unlawful occupation of the property and enforcement order by the Police Officers. 9. It is not in dispute that the Applicant is the legal representative of the Estate of the late James Samuel Gichuru and claims ownership and possession of Part B of L.R. No. 209/2412 following the partition of the property pursuant to orders issued by this Court. 10. The Applicant contends that following the dismissal of the proceedings before the Business Premises Rent Tribunal, the Respondents remained on the suit premises without any lawful justification and consequently became trespassers liable to eviction. 11. On the other hand, the 4th and 10th Respondents deny the allegation that they are trespassers. Their case is that they are long-standing tenants of the suit premises, having occupied their respective stalls for several years as Tenants. They further contend that the Applicant has continued to accept rent from them after assuming management of the premises and thereby acknowledged the existence of a landlord-tenant relationship. They maintain that they have never been served with any lawful notice terminating their tenancy. 12. From the foregoing, it is evident that the parties hold fundamentally different positions on the legal character of their occupation of the suit property, whether the Respondents are Tenants or Trespassers. 13. The determination of the competing positions necessarily requires the Court to interrogate the nature of the tenancy, the legal effect of the previous proceedings before the Business Premises Rent Tribunal and the Appeal pending in court, the documents relied upon by the parties and the conduct of the parties following the partition of the property. 14. The orders sought among them are an eviction order, which forms a substantive issue which ought to be canvassed in the main suit where the Applicant will furnish the Court with the relevant documents alluded to in her supporting affidavit. 15. The Court notes that the Plaint dated the 7th November 2024 sought, inter alia, orders of eviction, permanent injunction, mandatory injunction, general damages for trespass and an order for mesne profits from the date of occupation until determination of the suit. The present application has substantially reproduced the same reliefs in the Plaint in the Application, which is at an interlocutory stage. 16. In the Court’s view, eviction is a substantive and precipitate order and hence can only issue after a hearing of the main suit. 17. In the case of **The Headmaster Kiembeni Primary School vs Baptist Church [2005] eKLR,** where Hon Justice D.K Mara*ga*, ***Judge [as he then was] stated as hereunder;*** ***“I have also seen in other cases in which parties make applications for interlocutory injunctive order similar to the one made in this matter which, if granted as prayed, would have the effect of granting permanent or mandatory injunctions and sometimes even eviction orders. Such practice is to be highly discouraged. Courts on their part should be wary of such applications bearing in mind the fact that Order 39 does not provide for the grant of permanent injunctions at the interlocutory stage. See also Shah \_v. Shah (1981) KLR 374.”*** 1. In the case of **Julius L. Marten –vs- Caleb Arap Rotich [2021] e KLR, Mutungi J.** held as follows: “***Any eviction order has far-reaching implications as it entails the forceful removal of a party from land that he/she has been in occupation/possession for some time. Before such an order is given, the court must be satisfied on its merits, which means any person who stands to be affected by any order the court may make is entitled to be heard."*** 1. The Court therefore finds that the Applicant has not met the legal threshold for the granting of the eviction order at the Application stage. **Whether the Applicant has satisfied the legal threshold for the grant of an injunction** 1. The statutory provisions governing interlocutory or temporary injunctions are found primarily in **Section 63(c)** and **Section 3A** of the[Civil Procedure Act (Cap 21)](https://new.kenyalaw.org/akn/ke/act/1924/3), and detailed procedurally under **Order 40 (Rules 1, 2, and 4)** of the [Civil Procedure Rules](https://new.kenyalaw.org/akn/ke/act/ln/2010/151/eng%402022-12-31). These laws give courts the power to protect property and rights while a main lawsuit is still going on. The principles governing the grant of interlocutory injunctions were laid down in the case of **Giella v Cassman Brown & Co. Ltd,** and the same are that an applicant must establish: 2. **a prima facie case with a probability of success;** 3. **that he stands to suffer irreparable injury which cannot adequately be compensated by an award of damages; and** 4. **where the court is in doubt, the application should be determined on a balance of convenience.** 5. The Applicant states that upon allocation of a portion of the suit property to the Estate of James Samuel Gichuru, she took over the management of the Part B thereofbeing the sole administratrix and legal representative of the said Estate. However, it is worth taking note that the Applicant did not annex any of the documents to prove her capacity as the Legal Representative. 6. The Applicant is required to establish a prima facie case with a probability of success. From the pleadings and evidence before the Court, the Court is satisfied on a prima facie basis and without conclusively determining matters that are to await hearing that the Respondents occupied the suit property before the partition referred to. The Respondents have demonstrated on a prima facie basis that they were lawfully in occupation of the premises as tenants and that the Applicant's complaints arise from contested issues relating to possession and tenancy rights, matters which can only be determined upon a full hearing. The Applicant has therefore failed to demonstrate the existence of a clear and enforceable legal right that has been violated to warrant the grant of an interlocutory injunction. 7. Further, the Applicant has not demonstrated that the Respondents are trespassers. A party cannot be termed a trespasser where his occupation originates from a tenancy or other lawful authority unless and until that right has been lawfully terminated in accordance with the law. The issues surrounding termination of the tenancy and entitlement to possession remain disputed and cannot be conclusively determined at the interlocutory stage. 8. The Applicant is further required to demonstrate that she will suffer irreparable harm incapable of compensation by an award of damages. The alleged injury relates to occupation and use of commercial stalls from which rental income is derived. Any loss occasioned by continued occupation is purely quantifiable in monetary terms and is therefore capable of adequate compensation through damages should the Applicant ultimately succeed at trial. The Applicant has not identified any unique or exceptional circumstances demonstrating that damages would not constitute an adequate remedy. 9. Thirdly, even if this Court were to entertain any doubt, the Applicant is required to show that the balance of convenience needs to tilt in favour of the Applicant. Granting the injunction sought would have the effect of evicting the Respondents from the suit premises and determining the substantive dispute at an interlocutory stage without the benefit of a full trial. Courts have consistently held that interlocutory injunctions should preserve the prevailing status quo rather than confer final relief before the rights of the parties have been determined. 10. Moreover, the orders sought are mandatory in nature, as they seek to restrain the Respondents from continuing in occupation and effectively restore possession to the Applicant. Such orders ought not to be granted at an interlocutory stage except in the clearest of cases, which the present matter is not. The Applicant has neither demonstrated exceptional circumstances nor established a clear and undisputed legal right warranting such drastic relief. 11. In the circumstances, the Applicant has failed to establish a prima facie case, has not demonstrated irreparable loss, and the balance of convenience favours maintaining the status quo pending the hearing and determination of the suit. 12. Accordingly, the prayer seeking an injunction restraining the Respondents from trespassing, re-entering, occupying, or carrying on business on Part B of L.R. No. 209/2412 is devoid of merit and ought to be dismissed with costs. **Whether the Applicant is entitled to general damages for trespass** 1. It is trite law that trespass is actionable per se and unlike special damages which must be specifically pleaded and strictly proved; general damages for trespass are usually awarded once trespass is proved. In the case of **Park Towers Limited -VS-John Mithamo Njika & 7 Others (2014) eKLR, Mutungi J** stated as follows;- ***“I agree with the Learned Judges that where trespass is proved, a party need not prove that he suffered any specific damage or loss to be awarded general damages. The Court in such circumstances is under a duty to assess the damages awardable depending on the unique circumstances of each case.”*** 1. While trespass is actionable per se, the Court must first be satisfied that the occupation complained of is indeed unlawful. In the present case, liability itself remains contested since the Respondents assert a lawful tenancy. Consequently, the Court cannot proceed to assess damages before first determining whether trespass has in fact been established. 2. In the circumstances, the Court finds that the prayer for general damages cannot properly be determined within the present interlocutory application and must abide by the hearing and determination of the main suit. **CONCLUSION** 1. Consequently, and in the premises, the Final orders of the Court are as hereunder; 2. **The Application of 15th November,2024 be and is hereby dismissed.** 3. **Costs of the Application shall be paid by the Applicant to the 4th and 10th Respondents.** **Delivered, dated and signed via Microsoft Teams this 23rd day of July 2026.** **HON. L. G. KIMANI** **JUDGE ENVIRONMENT AND LAND COURT** *The Ruling is read in the presence of:* *M/s Mgalla holding brief for Wangui for 4th Defendant/Respondent* *M/s Nasambu holding brief for Mbabu for Plaintiff*