https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5171

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCLC NO. E194 OF 2025** **EDWARD NGINYO .…………………..…………….............................. APPLICANT** **VERSUS** **HELLEN NDUTA MWAURA.………………………...…………1ST RESPONDENT** **As administrator of the Estate of John Mwaura)** **REGISTRAR OF LANDS KIAMBU………...…………………2ND RESPONDENT** **THE ATTORNEY GENERAL…………………..……………….3RD RESPONDENT** **RULING** 1. Before this Court is the Plaintiff’s/Applicant’s Application dated 24 September 2025 seeking the following orders: 2. *Spent;* 3. *That this Court issues a temporary injunction restraining the Respondent, his servants, agents, employees or any person acting under his authority from leasing, constructing, entering into, or in any way dealing with the parcel of land known as Ndumberi/Riabai/410 pending hearing and determination of this suit;* 4. *An order direction the 2nd Defendant to appoint an independent and impartial surveyor to do the survey and table the Survey report before this Court;* 5. *Conservatory order restraining the 1st Defendant from further trespass until the matter is heard and determined* 6. *Cost* 7. *Any other relief court may deem fit.* 8. The Application is premised on the grounds set forth on the face of it and the affidavit in support of the same sworn by Edward Nginyo. 9. In response to the application the 2nd and 3rd Respondents filed Grounds of Opposition dated 10th November 2025 raising the following points; 10. *The application as drawn depicts a boundary dispute which is an exclusive original domain of the Land Registrar vide filling of boundary dispute and not an ownership dispute.* 11. *That the application as drawn has not met the threshold for the grant of orders of injunction as per the principle in Giella v Cassman Brown.* 12. *The prayer for boundary dispute is not opposed.* 13. The Applicant avers that he is the son to the proprietor of the property known as Ndumberi/Riabai/410 and avers that it forms part of his ancestral land. 14. From the pleadings before Court, the Applicant contends that the cause of action herein arose during demarcation and an error occurred that led to part of the property known as Ndumberi/Riabai/410 being wrongly recorded as Ndumberi/Riabai/423 in the name of the 1st Respondent. 15. The Applicant is apprehensive that the Respondent will alienate the suit land as she is in the process of leasing or developing the disputed portion and that this will irreparably prejudice his interest. 7. The Application did not solicit any response from the 1st Respondent. The 1st Respondent never entered appearance. 8. I have considered the Application and further perused the documents annexed to the Application and the List of bundle of documents as filed by the Applicant in the main suit. 9. The Plaintiff/Applicant annexed five documents in the Application which also form part of the list and bundle of documents in support of the main suit. These are: 1. *Certificate of official search of the property known as of land known as Ndumberi/Riabai/4013 registered in the name of Helen Nduta Mwaura, the 1st Respondent;* 2. *Original cadastal map;* 3. *Chiefs letter;* 4. *Letter to task force of national land injustice; and* 5. *Summon letter from deputy county commissioner.* 10. The Plaintiff/ Applicant states that after his father’s demise, they applied for Grant vide Milimani HC Succession Cause No. 1467 of 1991. He thereafter obtained a map which shows that land parcel number Ndumberi/Riabai/423 overlaps with land parcel number Ndumberi/Riabai/410. The 2nd Defendant subsequently had land parcel number Ndumberi/Riabai/410 changed to Ndumberi/Riabai/605. He further depones that the respondent is currently in the process of leasing or developing the disrupted portion which would irreparably prejudice the Applicant’s interests hence the application for injunction. 11. The Court directed that the application be disposed of by way of written submissions but by the time of writing this ruling only the Plaintiff/Applicant had filed his submissions. **ANALYSIS AND DETERMINATION** 12. Having considered the application, Grounds of Opposition and the Applicant’s submissions, there are two issues for determination: 1. *Whether the dispute is a boundary as opposed to an ownership dispute* 2. *Whether the order of temporary injunction ought to be granted.* *Although the Applicant concedes that the dispute is a boundary dispute which has hitherto been dealt with by the Land Registrar, it apparent that the surveyor’s report did not resolve the dispute and that explains why the suit was filed in court.* 13. I will now determine if the applicant has met the conditions for the grant of an order of temporary injunction as set out in the case of **Giella V Cassman Brown & Company Limited (1973) E.A 358.** 14. An applicant must establish a prima facie case with a likelihood of success; demonstrate that they would suffer irreparable loss that cannot be compensated by way of damages if the injunction was not granted, and in the event that the court is in doubt, it shall determine the application based on the balance of convenience. 15. I will start by examining whether the Applicant has established that he has a prima facie case with a probability of success. From the documents filed by the Applicant it is not in dispute that the Applicant’s father was initially registered as the owner of the suit property before the dispute over the size and location of the suit property arose. The matter was subsequently referred to the Land Registrar who instructed the surveyor to conduct a survey of the 2 parcels of land. From a preliminary point of view therefore, the Applicant has established that he has a prima facie case with a probability of success. 16. Turning to the question of irreparable loss, the Applicant has expressed fears that the Respondent might alienate or develop the suit property to the Applicant’s detriment. Considering the fact that there is a dispute over whether or not the suit property overlaps with the Respondent’s parcel of land, alienation of the suit property would occasion the Applicant irreparable loss which cannot be adequately compensated by damages. 17. In the foregoing circumstance, the balance of convenience tilts in favour of the Applicant. 18. The upshot is that the application has merit and it is hereby granted in the following terms: 1. *A temporary injunction is hereby issued restraining the* *Respondent, his servants, agents, employees or any person acting under his authority from leasing, constructing, entering into, or in any way dealing with the parcel of land known as Ndumberi/Riabai/410 pending hearing and determination of this suit;* 1. *The costs of this application shall be in the cause.* **Dated, Signed and Delivered, virtually at Thika this 21st day of July 2026.** …………….………….. **J. M. ONYANGO** **JUDGE**