https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4062

**REPUBLIC OF KENYA** **THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. EO15 OF 2024** **JOSEPH KIMEU NGUTU:::::::::::::::::::::::::::::::APPLICANT/PLAINTIFF** **VERSUS** **MBAITU WELFARE ASSOCIATION:::::1ST RESPONDENT/DEFENDANT** **DONYO SABUK BLOCK 1/293 SELF HELP GROUP:::::::::::::::::::::::::::::::::::::::::::2ND RESPONDENT/DEFENDANT** **MBUKONI HOLDINGS LIMITED::::::::3RD RESPONDENT/DEFENDANT** **MACHAKOS COUNTY LAND REGISTRAR:::::::::::::::::::::::::::::::::::::4TH RESPONDENT/DEFENDANT** **RULING** The application is dated 5th March 2024 and is brought under Section 1A, 1B and 34, Civil Procedure Act, Order 40 Rule 2, 3 and 4, Order 51 rule 1 of the Civil Procedure Rules, section 68 and 73 of the Land Registration Act seeking the following orders; 1. That the Application herein be certified as urgent and heard ex-parte in the first instance. 2. That a temporary injunction does issue restraining the 1st, 2nd and 3rd Respondents whether by themselves, their agents, employees or servants or whomsoever is acting on their behalf from any further dealings, subdivision, registration or transactions over that parcel of land known as Donyo Sabuk/Komarock 1/32717 or/and Donyo Sabuk/Komarock 1/90427-90616 pending the hearing of this application inter- partes. 3. That a temporary injunction does issue restraining the 1st, 2nd and 3rd Respondents whether by themselves, their agents, employees or servants or whomsoever is acting on their behalf from any further dealings, subdivision, registration or transactions over that parcel of land known as Donyo Sabuk/Komarock 1/32717 or/and Donyo Sabuk/Komarock 1/90427-90616 pending the hearing of this application. 4. That a temporary injunction does issue restraining the 1st, 2nd and 3rd Respondents whether by themselves, their agents, employees or servants or whomsoever is acting on their behalf from any further dealings, subdivision, registration or transactions over that parcel of land known as Donyo Sabuk/Komarock 1/32717 or Donyo Sabuk Komarock 1/90427-90616 pending the hearing of the suit herein. 5. That a permanent injunction does issue restraining the 1st, 2nd and 3rd Respondents whether by themselves, their agents, employees or servants or whomever in acting on their behalf from any further dealings, subdivision, registration, entering upon or continuing in occupation of caveating, inhibition or in whatsoever way interfering with the 2.7 acres of that parcel of land comprised in land referenced as Donyo Sabuk Komarock 132717 or and Donyo Sabuk Komarok 190127-00616. 6. That the Honourable court do issue an order of inhibition stopping further dealings, registrations and transactions over that parcel of land known as Donyo Sabuk Komarock 132717 or Donyo Sabuk Komarock 1/90427-00616. 7. That the Honourable count be pleased to issue a mandatory injunction directing the 4th Respondent/Defendant to unconditionally lift or withdraw the caution registered by the 3rd Respondent/Defendant on the Applicant's/Plaintiff's Parcel of land known as Land Reference Donyo Sabuk/ Komarock 1/32717 or/and Donyo Sabuk Komarock 1/90427-90616 8. That, the 1st, 2nd and 3rd Respondents/ Defendants be compelled to vacate the 2.7 acres of Land of Parcel referenced as Donyo Sabuk/Komarock 1/32717 or/and Donyo Sabuk Komarock 1/91427-90616 registered in the name of the Applicant/ Plaintiff. 9. That the 1st, 2nd and 3rd Respondents/ Defendants be compelled to allow unfettered access to the Applicant/ Plaintiff of the 2.7 acres of Land Reference Donyo Sabuk/Komarock 1/32717 or/and Donyo Sabuk Komarock 1/90427-90616 registered in the name of the Applicant/ Plaintiff 10. That the Honourable court does issue an order of mandatory injunction directing the 1st and 2nd Respondents, whether by themselves or their agents, servants or otherwise to forthwith remove and demolish all the dwelling structures erected on part of the 2.7 acres of the suit property, failing which the same be removed by the Applicant/ Plaintiff at the 1st and 2nd Respondent’s cost. 11. That the area OCPD or OCS and his team of police officers be directed to ensure compliance with order ((h). (i) and (j) above. 12. That cost of this application be borne by the Respondents/ Defendants. The Application is supported by the affidavit of Joseph Kimeu Ngutu and on the following grounds that the Applicant/Plaintiff is the Registered owner of all that Parcel of Land referenced as Donyo Sabuk/Komarock 1/32717, formerly Donyo Sabuk/Komarock Block 1/293. That the Applicant entered into agreements with the 3rd Respondent to sell 30 acres of the referenced land to the 3rd Respondent. That the 3rd Respondent in breach of the agreements apportioned to itself an extra 2.7 acres of land over and above the 30 acres and sold it further to the 1st and 2nd Respondents. That the land was subdivided and new numbers were issued that produced Land Reference Donyo Sabuk Komarock 1/32717 or/and Donyo Sabuk Komarock 1/00427-00616 registered in the name of the Applicant/Plaintiff. The 1st and 2nd Respondents entered into an agreement with the Applicant to compensate him for the illegally annexed extra portion of land measuring 2.7 acres comprised in Donyo Sabuk/Komarock 1/32717 registered in the name of the applicant and sold to them. The 1st and 2nd Respondents are in breach of the said agreement and have failed to fully compensate the Applicant as agreed. The 3rd Respondent has placed an illegal caution on the suit property, making it impossible for the applicant to conduct any dealings on his 2.7 acres of land. The Applicant/Plaintiff is apprehensive that unless the Respondents are restrained by this Honourable court, the Applicant is under an imminent risk of losing the property to third parties. That it's in the interest of justice that the orders sought be granted to preserve the suit land and further prevent irreparable loss to the Applicant/Plaintiff. This court has considered the application and the submissions therein. The principles of granting temporary injunctions are well settled and are set out in the judicial decision of Giella vs Cassman Brown (1973) EA 358. This position has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of Nguruman Limited vs Jan Bonde Nielsen & 2 others 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, ally 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”.* Consequently, the Plaintiff ought to, first, establish a prima facie case. In Mrao Ltd vs First American Bank of Kenya Ltd (2003) EKLR the Court 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.”* In support of the application, the Applicant stated that he is is the Registered owner of all that Parcel of Land referenced as Donyo Sabuk/Komarock 1/32717, formerly Donyo Sabuk/Komarock Block 1/293. He attached a copies of certificate of title marked JKN2A and JKN2B of the former title deed and the one issued after subdivision. Secondly, the Plaintiff has to demonstrate that irreparable injury will be occasioned to them if an order of temporary injunction is not granted. The judicial decision of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR provides an explanation for what is meant by irreparable injury and it states; *“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.* The Applicant states that he entered into agreements with the 3rd Respondent to sell 30 acres of the referenced land to the 3rd Respondent. That the 3rd Respondent in breach of the agreements apportioned to itself an extra 2.7 acres of land over and above the 30 acres and sold it further to the 1st and 2nd Respondents. Thirdly, the Plaintiff has to demonstrate that the balance of convenience tilts in their favour. In the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) EKLR which defined the concept of balance of convenience as: *‘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”.* The decision of Amir Suleiman vs Amboseli Resort Limited (2004) eKLR where the learned judge offered further elaboration on what is meant by “*balance of convenience*” and stated; *“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”* The Applicants stated that the 1st and 2nd Respondents entered into an agreement with the Applicant to compensate him for the illegally annexed extra portion of land measuring 2.7 acres comprised in Donyo Sabuk/Komarock 1/32717 registered in the name of the Applicant and sold to them. The 1st and 2nd Respondents are in breach of the said agreement and have failed to fully compensate the Applicant as agreed. The 3rd Respondent submitted that they entered into two separate agreements with the Applicant for the purchase of the suit parcels of land for the price of Kshs 2,700,000/= which the paid in full. That the Applicant was to subdivide the suit land and transfer 30 acres to the 3rd Respondent. Instead he subdivided the same to 32.7cares and further to 189 plots and sold to third parties. The 3rd Defendant hence lodged a caution on the suit property to safe guard their interest pending the resolution od the dispute. I find the matter involves land sale agreements between the parties and allegations of breach of contract from both sides. Bearing this in mind, I am convinced that there is a risk in granting orders of temporary injunction than not granting them, as I wait to hear the suit on its merits. This is especially so because I have not had opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the current situation on the ground. I have also not had the opportunity to interrogate the annexures therein. In Robert Mugo wa Karanja vs Ecobank (Kenya) Limited & Another (2019) eKLR where the court in deciding on an injunction application stated; *“circumstances for consideration before granting a temporary injunction under order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”* In view of the foregoing, I find that the application is not merited and I dismiss it with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 1ST DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**