Ngumbi & 7 others v Seafront International Ltd & 7 others (Environment and Land Case E069 of 2026) [2026] KEELC 4955 (KLR) (30 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. E069 OF 2026** **JOHN MUTALA NGUMBI………..…….….………1ST PLAINTIFF/APPLICANT WILSON MBITHI MUNGUTI……….…….………2ND PLAINTIFF/APPLICANT LUCY NAKHULO NANJALA BARAZA...……....…3RD PLAINTIFF/APPLICANT ELINA NALIAKA BARAZA………………...…….…4TH PLAINTIFF/APPLICANT JACOB IYADI WAMBULWA…………….…….…..5TH PLAINTIFF/APPLICANT BEATRICE CHESILE NEMUSI BUKHUYA….…..…6TH PLAINTIFF/APPLICANT JOHN IYADI JOTHAM MAINA………..…….…...7TH PLAINTIFF/APPLICANT CAMELINE NAWANDE IYADI………………..…..8TH PLAINTIFF/APPLICANT** **VERSUS** **SEAFRONT INTERNATIONAL LTD………....1ST DEFENDANT/RESPONDENT MICHAEL MWALALI NZOMO..…………....2ND DEFENDANT/RESPONDENT THOMAS NZOLA MUSYOKA………………3RD DEFENDANT/RESPONDENT MICHEAL YUMBYA MANGELI….……….....4TH DEFENDANT/RESPONDENT MARGARET KALEWA KIMOLO…………….5TH DEFENDANT/RESPONDENT FLORENCE MUTANIA KIMOLO………..….6TH DEFENDANT/RESPONDENT NATIONAL LAND COMMISSION…..……..7TH DEFENDANT/RESPONDENT PRINCIPAL LAND REGISTRAR……..……....8TH DEFENDANT/RESPONDENT** **RULING** **Introduction** 1. Before this Court are two Applications for determination. The first is the Plaintiffs' Notice of Motion dated 13th March 2026 seeking interlocutory injunctive orders. The second is the 1st – 6th Defendants' Notice of Motion dated 26th June 2026 seeking a stay of these proceedings pending payment of the costs awarded by the Mavoko Chief Magistrate's Court in CMELC No. E112 of 2025. **The Plaintiffs' Notice of Motion dated 13th March 2026** 1. The Plaintiffs commenced this suit by a Plaint dated 13th March 2026 and, contemporaneously therewith, filed the Notice of Motion of even date seeking the following orders: 2. ***Spent.*** 3. ***Spent.*** 4. ***Spent.*** 5. ***Pending the hearing and final determination of the suit, a temporary order of injunction restraining the 1st to 6th Defendants, their agents, servants, assigns, family members or any other persons claiming through them from entering, remaining on, developing, disposing of, constructing on, selling, charging or in any other manner interfering with L.R. Nos. 337/2870, 337/2871, 337/2872, 337/2873, 337/2874, 337/2868, 337/2869 and 337/2867, Athi River.*** 6. ***An order directing the OCS Athi River Police Station to supervise compliance with the Court's orders.*** 7. ***Costs of the application.*** 8. The Application is premised on the grounds that the Plaintiffs are the lawful allottees of L.R. Nos. 337/2870, 337/2871, 337/2872, 337/2873, 337/2874, 337/2868, 337/2869 and 337/2867, Athi River, having been issued with letters of allotment by the 7th Defendant. They aver that they duly accepted the allotments by complying with all the conditions therein, including payment of the requisite stand premiums and other charges within the prescribed period. 9. The Applicants contend that upon complying with the terms of the allotment letters, they acquired a legitimate expectation that certificates of lease would be processed and issued in their favour. They further state that the 7th Defendant confirmed the authenticity of the letters of allotment issued to them. 10. The Applicants assert that they subsequently discovered that certificates of lease over the suit properties had instead been issued to the 1st to 6th Defendants on diverse dates between September and November 2024. They allege that the said registrations were procured fraudulently, through misrepresentation or collusion, thereby unlawfully defeating their interests in the suit properties. 11. It is the Applicants' case that the 1st to 6th Defendants have commenced advertising the suit properties for sale and, unless restrained, are likely to alienate, transfer, charge or otherwise deal with the properties, thereby rendering the suit nugatory and occasioning the Applicants irreparable loss which cannot be adequately compensated by an award of damages. 12. The Applicants therefore urge the Court to preserve the suit properties by granting the injunctive orders sought pending the hearing and determination of the suit. 13. The 1st to 6th Defendants opposed the application through the Replying Affidavit of the 4th Defendant, Michael Yumbya Mangeli, sworn on his own behalf and on behalf of the 1st, 2nd, 3rd, 5th and 6th Defendants. They aver that they are the lawful proprietors of the suit properties, having been allocated the parcels in 1996, accepted the allotments, paid the requisite charges and subsequently been issued with certificates of lease. They further state that they have continuously paid land rates and rent and have obtained the necessary clearance certificates. 14. The 1st to 6th Defendants contend that they have been in continuous possession and occupation of the suit properties for many years, during which they have undertaken extensive developments thereon. They state that their ownership has never previously been challenged and that the relevant government authorities have confirmed that they are the bona fide owners of the suit properties. 15. The 1st to 6th Defendants aver that the suit properties were lawfully allocated to them in 1996 and, having already been alienated, were no longer available for re-allocation. They therefore contend that the Plaintiffs' purported letters of allotment are unlawful and incapable of conferring any proprietary interest in the suit properties. 16. The 1st to 6th Defendants further contend that the National Land Commission purported to allocate land belonging to the Kenya Industrial Estates to the Plaintiffs despite the Kenya Industrial Estates confirming that it neither owned nor had ever possessed the parcels in question. They therefore allege that the Plaintiffs procured their letters of allotment fraudulently and subsequently reported the matter to the police for investigation. 17. The 1st to 6th Defendants maintain that the Plaintiffs have not demonstrated any lawful basis upon which they became entitled to the suit properties and that the Plaintiffs' claim is founded on fraudulent documents. They further aver that they remain in possession of the suit properties, which they have fenced and developed, and that the grant of the orders sought would unjustifiably interfere with their proprietary rights. 18. Further, the 1st to 6th Defendants filed another application dated 26th June, 2026 seeking to stay the proceedings herein until the costs ordered by the court in Mavoko Chief Magistrates’ Court ELC Case No. E112 of 2025; Wilson Mbithi Munguti and 7 others -versus- Seafront International Limited and 7 others are paid in full. 19. Both applications were canvassed by way of written submissions. However, at the time of writing this Ruling, none of the parties had filed their submissions to either of the applications and the 1st to 6th Defendants’ application had not elicited any response. **Issues for Determination** 1. Having considered the two applications and the 1st to 6th Defendants’ response and the pleadings on record, I find the following issues arise for determination: 2. **Whether the** **Plaintiffs’ Application dated 13th March, 2026 meets the threshold for granting of injunctive orders.** 3. **Whether the** **1st to 6th Defendants’ Application dated 26th June, 2026 for stay of proceedings is merited.** **Analysis and Determination** **Whether the Plaintiffs’ Application dated 13th March, 2026 meets the threshold for granting of injunctive orders.** 1. The Court's power to grant interlocutory injunctive orders is conferred by Section 63(c) of the Civil Procedure Act, which empowers the Court, in order to prevent the ends of justice from being defeated, to grant a temporary injunction and, in an appropriate case, to make such interlocutory orders as may appear just and convenient under Section 63(e) of the Act. 2. The circumstances in which that jurisdiction may be exercised are prescribed under **Order 40 Rule 1** of the Civil Procedure Rules, which provides: 3. ***That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or*** 4. ***That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in execution of any decree that may be passed against the defendant in the suit,*** ***the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”*** 1. The principles governing the exercise of the jurisdiction conferred under **Order 40 Rule 1** are now well settled. In the celebrated case of ***Giella v Cassman Brown & Co. Ltd* [1973] EA 358,** the Court held that an applicant for an interlocutory injunction must satisfy three conditions: 2. ***First, the applicant must establish a prima facie case with a probability of success.*** 3. ***Second, the court must consider whether the applicant would suffer irreparable injury that cannot be adequately compensated by damages.*** 4. ***Third, if the court is in doubt, the matter is to be decided on a balance of convenience.*** 5. The position in ***Gilella v Cassman Brown* (*supra*)** was explained in the case of [***Nguruman Limited v Jan Bonde Nielsen & 2 Others***](https://kenyalaw.org/caselaw/cases/view/10428/)**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) allay 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.”*** 1. I now proceed to consider whether the Plaintiffs have satisfied the requirements for the grant of an interlocutory injunction. 2. ***Prima facie* case** 3. In assessing whether the Plaintiff has established a *prima facie* case, the Court relies on the judicial decision of ***Mrao Ltd Versus First American Bank of Kenya Ltd (2003) EKLR***in which the **C**ourt 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.”*** 1. The Plaintiffs have exhibited letters of allotment, receipts evidencing payment of the requisite charges and correspondence from the 7th Defendant confirming the authenticity of the letters of allotment. They contend that, having complied with the conditions of allotment, they acquired a legitimate interest in the suit properties. They further aver that they subsequently discovered that certificates of lease had been issued to the 1st to 6th Defendants in respect of the same parcels of land. 2. The 1st to 6th Defendants, on the other hand, maintain that they were lawfully allocated the suit properties in 1996 and are the registered proprietors thereof. They contend that the suit properties had already been alienated and were therefore unavailable for allocation to the Plaintiffs. They further allege that the Plaintiffs' letters of allotment were fraudulently procured. 3. It is evident from the material before the Court that there are competing claims to the suit properties, with each party asserting a lawful entitlement thereto and accusing the other of fraud. The validity of the rival allotments and the resultant titles can only be conclusively determined upon a full hearing where oral evidence is adduced and tested through cross-examination. 4. At this interlocutory stage, the Court is not required to determine which of the competing claims is ultimately meritorious. Instead, the Court is only required to determine whether the Plaintiffs have demonstrated an arguable right which has apparently been infringed and which warrants protection pending the hearing of the suit. 5. In the circumstances, I am satisfied that the Plaintiffs have established a prima facie case with a probability of success. 6. **Irreparable harm** 7. The second limb that the Plaintiffs must satisfy is that they stand to suffer irreparable injury which cannot adequately be compensated by an award of damages if the orders sought are not granted. 8. The Court in ***Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR)*** defined irreparable harm and stated; ***“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.”*** 1. In the present case, the Plaintiffs aver that the 1st to 6th Defendants have commenced advertising the suit properties for sale and are likely to alienate, transfer, charge or otherwise deal with the properties unless restrained by this Court. They contend that such dealings would defeat the substratum of the suit before their claim is heard and determined. 2. The 1st to 6th Defendants, for their part, maintain that they are the registered proprietors of the suit properties. Consequently, there exists a real possibility that the suit properties may be sold, transferred, charged or otherwise alienated to third parties pending the determination of the suit, thereby complicating the dispute and potentially defeating the Plaintiffs' claim unless appropriate preservatory orders are granted. 3. In my view, the subject matter of this dispute comprises specific parcels of land over which the parties assert competing proprietary interests. Should the suit properties be alienated or encumbered before the rights of the parties are determined, the Plaintiffs' alleged interest may be rendered nugatory, and an award of damages may not constitute an adequate remedy. 4. I am therefore satisfied that the Plaintiffs have demonstrated that they stand to suffer irreparable harm if the orders sought are not granted. 5. **Balance of convenience** 6. The final consideration is whether the balance of convenience tilts in favour of granting the orders sought. In ***Pius Kipchirchir Kogo (supra)***, the Court explained the concept of balance of convenience as follows: ***"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."*** 1. Similarly, in ***Paul Gitonga Wanjau Vs Gathuthis Tea Factory Company Ltd & 2 Others (2016) eKLR****,* the Court observed that where there is doubt as to the parties' respective rights, the Court ought to consider which party is likely to suffer the greater harm and, in doing so, seek to maintain the status quo pending the determination of the suit. 2. In ***Amir Suleiman Vs Amboseli Resort Limited [2004] eKLR****,* the Court offered further guidance on the principle of balance of convenience and held that: ***"The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice."*** 1. Further, in ***Robert Mugo Wa Karanja Vs Ecobank (Kenya) Limited & Another [2019] eKLR****,* the Court held that: ***"circumstances for consideration before granting a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules requires proof that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose of the property; the Court is in such situation enjoined to grant a temporary injunction to restrain such acts."*** 1. In the present case, the Plaintiffs claim ownership of the suit properties on the basis of letters of allotment and evidence of compliance with the conditions thereof, while the 1st to 6th Defendants assert that they are the registered proprietors by virtue of certificates of lease issued in their favour. Each party alleges that the other's interest was unlawfully procured. The validity of the competing claims can only be determined after a full hearing. 2. The Plaintiffs have further deponed that the 1st to 6th Defendants have commenced advertising the suit properties for sale and may dispose of, transfer, charge or otherwise alienate the same before the dispute is determined. If such dealings were to occur, the subject matter of the suit may be placed beyond the reach of the Court, thereby complicating or defeating the effective determination of the parties' respective rights. 3. Bearing the foregoing principles in mind, I am persuaded that there is a lower risk of injustice in preserving the suit properties pending the hearing and determination of the suit than in declining the orders sought. Preserving the suit properties will ensure that the subject matter of the litigation remains intact until the Court has had the opportunity to determine the competing claims on their merits. 4. Accordingly, I find that the balance of convenience tilts in favour of the Plaintiffs. Having found that the Plaintiffs have established a prima facie case with a probability of success, demonstrated that they stand to suffer irreparable harm if the orders sought are not granted, and that the balance of convenience tilts in their favour, the Court must now determine the appropriate preservatory relief to grant. 5. Order 40 Rule 1 of the Civil Procedure Rules empowers the Court to grant a temporary injunction or make such other order as it deems fit for the purpose of preventing the wasting, damaging, alienation, sale, removal or disposition of the property in dispute pending the determination of the suit. 6. In my view, the order that best serves that purpose in the present case is one preserving the *status quo* obtaining on the suit properties pending the hearing and determination of the suit. 7. This approach is consistent with the decision of the Court of Appeal in ***Mwadzaya Wachanda Clan Welfare Registered Trustees & 58 others v Petro Oil Kenya Ltd & 6 others [2022] KECA 402 (KLR)****,* as well as Practice Direction 23(l) of the Practice Directions to Standardise Practice and Procedures in the Environment and Land Court, 2025, contained in Gazette Notice No. 3461 of 2025, both of which recognise the importance of preserving the subject matter of litigation through appropriate preservatory orders where the circumstances of the case so require. 8. Accordingly, I am satisfied that this is a proper case for the exercise of the Court's discretion under Order 40 Rule 1 of the Civil Procedure Rules. The interests of justice will best be served by preserving the *status quo* obtaining on the suit properties pending the hearing and determination of the suit. **The 1st to 6th Defendants’ Notice of Motion dated 26th June 2026** 1. The Notice of motion dated 26th June, 2026 seeks orders for stay of the proceedings before this Court until costs ordered by the Mavoko Chief Magistrates’ Court in CMELC E112 of 2025 are paid in full. 2. The application is premised on the provisions of **Order 25 Rule 4** of the Civil Procedure Rules which provides: ***"If any subsequent suit shall be brought before payment of the costs of a discontinued suit, upon the same, or substantially the same cause of action, the court may order a stay of such subsequent suit until such costs shall have been paid."*** 1. The Rule empowers the Court, in an appropriate case, to stay a subsequent suit instituted before payment of the costs of an earlier suit that was discontinued. The jurisdiction is discretionary, as demonstrated by the use of the word *"may"*. Accordingly, even where the prescribed conditions are satisfied, the grant of a stay is not automatic but depends on the circumstances of the particular case. 2. In ***Patrick Kigera Mathia & Anr v Dr. Peter Mungai Ngugi & 2 others (2011) eKLR,*** the court set out the elements for the invocation of Order 25 of Rule 4 as follows: 3. ***A suit is instituted and later discontinued by the claimant;*** 4. ***Costs are awarded and certified in respect of that discontinued suit;*** 5. ***Those costs are known/demanded and not paid by the claimant;*** 6. ***The claimant files another suit upon the same or substantially the same cause of action;*** 7. ***The court may order a stay until such costs have been paid.*** 8. There is no dispute that the present suit follows the withdrawal of **Mavoko CM ELC No. E112 of 2025**. The pleadings exhibited before this Court demonstrate that both suits arise from substantially the same dispute. Equally, the ruling of the subordinate court confirms that the Plaintiffs were condemned to pay the costs of the withdrawn suit. The question that falls for determination is therefore whether, in the circumstances of this case, the Court should exercise its discretion to stay these proceedings. 9. Upon allowing the withdrawal of the suit, the subordinate court made the following order: ***"The Plaintiffs (cumulatively) to pay Kshs. 10,000/- as costs of this suit to each Defendant within 45 days. In default, the Defendants shall file a Party and Party Bill of Costs for taxation."*** 1. The order is significant for two reasons. First, it imposed a costs obligation upon the Plaintiffs payable within a specified period of forty-five (45) days. Secondly, it expressly provided the procedure to be followed in the event of default, namely that the Defendants would be at liberty to file their respective Party and Party Bills of Costs for taxation. The subordinate court therefore prescribed the mechanism through which the costs order was to be pursued should payment not be forthcoming. 2. The Defendants have not demonstrated that they invoked that procedure by filing their respective Bills of Costs for taxation or that a Certificate of Taxation has since been issued. Neither is there any evidence that the taxation process has been frustrated or otherwise rendered unavailable. Instead, they invite this Court to stay the present proceedings without first pursuing the course expressly provided by the subordinate court. 3. A similar question arose in ***Kiroket Ole Punyua v Umash Ole Mwanik & 2 others [2018] KEELC 168 (KLR)*** and the court declined to grant a stay under Order 25 Rule 4 on the ground that there was no evidence that the applicant had filed a bill of costs or obtained a certificate of taxation. The court held: ***“I have looked at the withdrawn suit and the current petition and find that the prayers sought are identical. However, as envisaged in the provision of order 25 rule 4 I have not found any evidence by the applicant to show that he indeed after the withdrawal of the suit, filed a bill of costs or obtained a certificate of taxation in which the respondent has failed and refused to settle and in the circumstances, I find in the absence of the above, the application is premature and I thus dismiss the same with costs.”*** 1. Likewise, in ***Gilbert Kabage Karianjahi v Richard Maina Mutungi* [2018] KEELC 3663 (KLR),** the Court recognized that the Civil Procedure Rules provide adequate mechanisms for the recovery of costs following the termination of proceedings, and that those mechanisms ought to be pursued before the Court is invited to exercise its discretion under Order 25 Rule 4. 2. In the present case, while the Plaintiffs have undoubtedly instituted a subsequent suit after withdrawing the earlier proceedings, the Defendants have not demonstrated that they have pursued the enforcement mechanism expressly provided in the order of the subordinate court. The discretion under Order 25 Rule 4 is intended to prevent abuse of the court process, not to supplant the procedure already directed by the court that awarded the costs. 3. In the circumstances, I am not persuaded that this is a proper case for the exercise of the Court's discretion under Order 25 Rule 4 of the Civil Procedure Rules. A stay of proceedings is a grave remedy which interrupts the ordinary course of litigation and should therefore be granted sparingly and only where it is necessary to serve the interests of justice. The Defendants have not demonstrated any sufficient basis to warrant such an order. Accordingly, the prayer for a stay of these proceedings is declined. 4. The Defendants remain at liberty to pursue taxation and recovery of the costs awarded in Mavoko CM ELC No. E112 of 2025 in accordance with the order of the subordinate court and the applicable law. **Orders:** 1. Consequently, and for the foregoing reasons, I make the following orders: 2. ***Pending the hearing and determination of this suit, the parties shall maintain the prevailing status quo in respect of Land Reference Numbers 337/2870, 337/2871, 337/2872, 337/2873, 337/2874, 337/2868, 337/2869 and 337/2867, Athi River.*** 3. ***For the avoidance of doubt, pending the hearing and determination of this suit, neither party shall undertake any further construction upon, alienate, encumber, transfer, charge, lease, subdivide, or otherwise deal with the suit properties in any manner that alters or is inconsistent with the prevailing status quo.*** 4. ***The 1st to 6th Defendants' Notice of Motion seeking a stay of these proceedings pursuant to Order 25 Rule 4 of the Civil Procedure Rules is hereby dismissed.*** 5. ***The 1st to 6th Defendants shall be at liberty to pursue taxation and recovery of the costs awarded in Mavoko CM ELC No. E112 of 2025 in accordance with the order of the subordinate court and the applicable law.*** 6. ***The costs of both Notices of Motion shall abide the outcome of the suit.*** It is so ordered. **Delivered and Dated at Machakos this 30th day of July, 2026.** **HON. J. N. KUYIONI** **JUDGE** **30.07.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Catherine Court Assistant. Mr. Kalwa for the 1st – 6th Defendants. Mr. Kuria for the 8th Defendant. Mr. Kilonzi holding brief for Mr. Nzei for the Plaintiffs.