https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3262

Njango & another v Kinuthia & another (Environment and Land Case E177 of 2024) [2026] KEELC 3262 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3262 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case E177 of 2024 JA Mogeni, J May 28, 2026 Between Elizabeth Njango 1st Plaintiff Simon Mbocha Kinyati 2nd Plaintiff and Peter Thande Kinuthia 1st Defendant John Kariuki Mbugua 2nd Defendant Ruling 1.This Ruling is in respect of the Notice of Motion filed under Article 45 of the Constitution of Kenya, 2010; Sections 1A, 3A, 6 & 7 of the Civil Procedure Act, 2012; Sections 18-20 of the Land Act and all enabling provisions of the law and brought seeking the following orders:1.That the Court be pleased to certify this Application urgent and service thereof be dispensed with in the first instance.2.That a temporary injunction does issue restraining the Defendants/Respondents, their servants, legal representatives, agents, nominees or any person acting under their authority from entering into, transacting over, harvesting, excavating, trespassing and or in any other manner interfering with land parcel KARAI/LUSIGGITI/T.1782, pending the inter-parties hearing of this application.3.That the OCS Kikuyu Police Station be ordered to ensure the enforcement of the orders herein.4.That a temporary injunction does issue restraining the Defendants/Respondents, their servants, legal representatives, agents, nominees or any person acting under their authority from harvesting, excavating, trespassing and or in any manner interfering with land parcel KARAI/LUSIGGITI/T.1782, pending the hearing of the main suit.5.That the OCS Kikuyu Police station be ordered to ensure the enforcement of the orders herein.6.THAT the cost of this Application be provided for. 2.The application is supported by the Affidavit of Elizabeth Mbocha and is anchored on the following summarized grounds:i.The 1st Applicant is the registered owner of the suit premises. A prior agreement for sand harvesting was allegedly breached by the Respondents through non-payment and unauthorized nighttime harvesting.ii.The Respondents are accused of harvesting approximately 100 lorries of sand per night without payment, causing the Applicants to suffer financial losses amounting to millions of shillings.iii.Despite the formal termination of the agreement, the Respondents have allegedly remained on the land using hired goons, prevented the Applicants from accessing the property, and issued threats against the Applicants' lives.iv.Previous injunctive orders lapsed following the termination of a prior suit (HCCC NO E001/2023) due to a lack of jurisdiction, necessitating this fresh application to prevent the Respondents from continuing their trespass and land degradation.v.The Applicants are apprehensive that without urgent intervention, the suit property will be rendered a "shell," causing irreparable damage and mental anguish that cannot be adequately compensated by damages. 3.Vide the Supporting Affidavit sworn by Elizabeth Njango on 18/10/2024 where the Deponent deposes that she is the absolute registered proprietor and an innocent purchaser of the suit property, being land parcel KARAI/LUSIGGITI/T.1782, as evidenced by the Title Deed annexed and marked "EN-1". She contends that the 2nd Plaintiff/Applicant entered into an alleged contract for sand excavation and sale with the Respondents, marked "EN-2", without her consultation or authorization. 4.Consequently, she maintains that the said contract is a legal nullity for want of capacity on the part of the 2nd Applicant. Furthermore, she states that any existing engagement was lawfully terminated via a notice dated 29/12/2022, on account of extensive breaches, as shown in the notice annexed and marked "EN-3". 5.Despite the said termination, the Deponent deposes that the Respondents have continued to trespass and harvest sand fraudulently, particularly at night to evade counting and assessment, as demonstrated by the photographs of excavators on-site marked "EN-4". She laments that the Respondents have illegally harvested approximately 100 lorries per night, valued at Kshs 1,000,000, leading to losses in the millions. To sustain this illegal occupation, the Respondents have allegedly deployed armed goons who have threatened the lives of the Applicants, as evidenced by the photographs marked "EN-5". 6.The Deponent further states that while the matter was reported to the police and a prior suit HCCC NO E001/2023 resulted in preservation orders, the said orders abated when the suit was terminated for lack of jurisdiction, as seen in the OB report and Court Order marked "EN-6". Notwithstanding demands made through her Advocates, marked "EN-7", the Respondents continue to degrade the land, posing an environmental hazard to neighbors. She, therefore, prays for the intervention of this Honorable Court to grant the injunctive orders sought to prevent the suit from becoming a mere academic exercise and to forestall further irreparable harm and depreciation of the suit property. 7.The Application is opposed vide the Replying Affidavit sworn on 15/01/2025 by Peter Thande the 1st Defendant with authority from the 2nd Defendant. 8.He avers that the instant suit and application are scandalous, frivolous, and an abuse of the Court process, characterized by a gross concealment of material facts. He avers that while a Sale of Sand Agreement was indeed executed on 23/11/2022, as supported by the bundle of annexures marked "PTK-1", the Applicants have deliberately misrepresented the proprietary status of the suit property. Specifically, he points out that although the 2nd Applicant held himself out as the registered owner and surrendered a title deed in his name during negotiations, a subsequent official search of the Green Card which is annexed revealed that the property had been transferred to his wife, the 1st Applicant, only three weeks prior. He contends that the 1st Applicant is not an innocent purchaser for value but a collaborator who was actively involved in negotiations and the receipt of weekly payments, thereby estoppping her from feigning ignorance of the contract. 9.The Respondent further denies the allegations of illegal nighttime harvesting, terming the claim of extracting 100 lorries per night as laughable and technically impractical given the equipment on-site. He deposes that the Respondents have had no access to the suit premises since 25/12/2022, after the 2nd Applicant closed the site and subsequently served a termination notice on 29/12/2022. He asserts that the genesis of the dispute was the Applicants' unilateral and extra-contractual demands for additional payments beyond the agreed rate of Kshs. 2,000 per lorry, which led to the Respondents being unlawfully barred from the premises and their equipment being detained despite heavy capital investment. 10.Finally, the 1st Respondent highlights the significant financial prejudice suffered by the Respondents, totaling approximately Kshs. 4,740,000 in operational costs and Kshs. 5,000,000 in lost business opportunities due to the Applicants' breach. He challenges the validity of the Applicants' pleadings, noting suspicious discrepancies in the 1st Applicant’s signatures across the Verifying and Supporting Affidavits. He maintains that the Applicants have failed to demonstrate any environmental hazard or irreparable injury warranting injunctive relief, and he urges the Court to dismiss the application with costs to prevent the use of the judicial process to sanitize a breach of contract. 11.On 21/01/2026 the Court directed Counsel for the Defendants to file their written submissions since the Applicant’s Counsel had on a previous appearance in Court on 2/10/2025 confirmed filing of their submissions and service. Despite this directive, by the time of writing this Ruling the Counsel for the Defendants had not complied. 12.However, the Applicant had filed their written submission dated 17/02/2025. The Applicant’s submissions are anchored on the principles for the grant of a temporary injunction as established in the locus classicus of Giella v. Casman Brown [1973] EA 358. The Applicants contend that they have established a formidable prima facie case with a high probability of success, moving beyond mere arguable points to demonstrate a clear infringement of their proprietary rights. 13.Relying on the Court of Appeal’s guidance in Mrao Ltd v. First American Bank of Kenya Ltd [2003] eKLR, the Applicants argue that as the lawful registered owners of land parcel KARAI/LUSIGITI/T.1782, their right to peaceful enjoyment of property has been violated by the Respondents' breach of a sand-harvesting agreement. They maintain that the Respondents have not only failed to pay for the resource but have also resorted to illegal nighttime excavations and the deployment of armed goons to bar the owners from their own land, a situation that fits the criteria for judicial intervention under Order 40 Rule 1 of the Civil Procedure Rules, as illustrated in Robert Mugo Wa Karanja v. Ecobank (Kenya) Limited & Another [2019] eKLR. 14.On the second limb of the Giella test, the Applicants submit that they are at risk of suffering irreparable injury that cannot be adequately atoned for by an award of damages. They draw the Court's attention to the decision in Nguruman Limited v. Jan Bonde Nielsen & 2 Others [2014] eKLR, asserting that the physical degradation of the land and the constant threats to the life of the 2nd Applicant and his family constitute harm that transcends monetary compensation. 15.The submissions emphasize that the Respondents have turned the suit property into an unsightly environmental hazard, and should the Court decline to grant the preservation orders, the Applicants will be left with a hollowed-out shell of land. This loss of the face of the property and the blatant disregard for the constitutional right to property under Article 40 are presented as injuries that no amount of financial reimbursement could ever truly repair. 16.Regarding the balance of convenience and the question of costs, the Applicants implore the Court to find that the scales tilt decisively in their favor. They argue that as the innocent parties who have performed their contractual obligations, they should not be penalized while the Respondents profit from their own illegalities. 17.Citing Rose Njeri Ndegwa v. Samuel Sobi J. Misingu [2019] eKLR, they maintain that the status quo must be preserved to prevent the suit from becoming academic. Furthermore, the Applicants seek costs of the application, relying on Section 27 of the Civil Procedure Act and the principle in Haraf Traders Limited v. Narok County Government [2022] eKLR that costs follow the event. They conclude by urging the Court to exercise its equitable jurisdiction to protect them from the pain and embarrassment caused by the Respondents' high-handed actions, thereby ensuring that justice is not only done but is seen to be done for these aggrieved citizens. 18.Having considered the pleadings, the Affidavits filed and the written submissions by the Applicants the central issue for determination is whether the Applicants have satisfied the three-fold test for the grant of an interlocutory injunction. This entails evaluating: 1.Whether the Applicants have demonstrated a prima facie case with a probability of success. 2.Whether the Applicants stand to suffer irreparable injury which would not be adequately compensated by an award of damages. 3.If the Court is in doubt, where the balance of convenience lies. 19.These are principles established in the Giella case (supra). Black's Law Dictionary defines an injunction as "a Court order commanding or preventing a specific act." In the context of Kenyan jurisprudence, the Court's power to grant this relief is discretionary but must be exercised judicially. 20.On the issue of prima facie case, the Applicants assert proprietary rights over land parcel KARAI/LUSIGITI/T.1782. While the Respondents challenge the 1st Applicant’s status as an innocent purchaser, they do not deny that a contract existed and has since been terminated. A prima facie case was eloquently defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, where the Court of Appeal stated:“A prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence at this stage must show an infringement of a right or at least the probability of success of the Applicant's case upon trial. It is a case which, on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 21.The Respondents’ admission that they entered into a contract with a party who had already transferred the land, coupled with the Applicants' evidence of termination and continued presence of the Respondents, creates a scenario that calls for a full trial. At this interlocutory stage, the Court finds that the Applicants have established a legal right to their property that warrants protection. 22.The Applicants contend that the land is being hallowed out into a shell and that threats to life have been issued. The Respondents argue that any loss is purely commercial and compensable by damages. However, the degradation of land a finite resource often transcends monetary value. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal held:“The Court must be satisfied that the injury the Respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages which are recoverable at law is an adequate remedy and the Respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the Applicant’s claim may appear at that stage." 23.In the instant matter, the allegation of environmental hazard and land degradation through sand harvesting suggests a permanent change to the character of the land. Damages cannot easily restore the topography of a hallowed-out parcel. Furthermore, the alleged use of goons and threats to life introduces an element of physical insecurity that cannot be quantified in Kenyan Shillings. 24.Where the Court is in doubt, it must weigh the hardship to the Applicants if the injunction is denied against the hardship to the Respondents if it is granted. The Respondents claim they have invested millions. However, the Applicants are the registered owners. In Giella v Casman Brown [1973] EA 358, the principle was established that:“If the Court is in doubt, it will decide an application on the balance of convenience." 25.Considering that the Respondents themselves state they have not had access since December 2022, granting an injunction to maintain the status quo does not appear to paralyze any active lawful business, but rather prevents a potential resumption of contested activities that would further degrade the suit property. 26.Upon careful consideration of the rival pleadings and the cited authorities, this Court finds that the Applicants have met the threshold for the grant of injunctive relief. The sanctity of title and the need to preserve the subject matter of the suit pending a full hearing outweigh the Respondents' claims of commercial loss, which can be pursued via a Counterclaim if necessary. 27.Accordingly, the Court makes the following orders:i.The Application dated 18/10/2024 is hereby allowed.ii.A temporary injunction is hereby issued restraining the Defendants/Respondents, their servants, agents, or any person acting under their authority from entering into, transacting over, harvesting sand, excavating, trespassing, or in any other manner interfering with land parcel KARAI/LUSIGGITI/T.1782 pending the hearing and determination of the main suit.iii.The OCS Kikuyu Police Station is hereby directed to provide the necessary assistance to ensure the quiet enjoyment of the suit property by the Applicants and the enforcement of these orders.iv.Parties to go for Pre-trial Conference on 11/06/2026.v.The costs of this Application shall abide the outcome of the main suit.Orders accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 28TH DAY OF MAY, 2026.………………………MOGENI JJUDGEIn the presence of:Ms. Mong’are for 1st and 2nd Applicants/Plaintiffs1st and 2nd Respondents/Defendants – AbsentMr. Melita - Court Assistant………………………MOGENI JJUDGE