https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5160

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO E184 OF 2025** **KELLEN NYAMBURA …………………………………….......………… PLAINTIFF** **VERSUS** **SIMON MUTHAA MWANGI …………………………..…………….. DEFENDANT** **RULING** 1. What is before me for determination is the Plaintiff’s application brought by way of a Notice of Motion dated 4th September 2025 seeking the following orders: 1. *Spent* 2. *That an order of eviction be issue removing the Respondent, his servants, partners, employees, and/or agents from the suit property given that they are trespassing.* 3. *Spent* 4. *Once the Respondent vacates the suit property, an order to issue restraining the Respondent, his servants, partners, employees, and/or agents from trespassing, encroaching, evicting, excavating, arbitrary registration or in any other manner interfering with the Applicant’s exclusive quiet enjoyment and occupation of the suit property pending the hearing and determination of this suit.* 5. *Spent* 6. *Spent* 7. *That pending the hearing of this suit, this Honourable court be pleased to issue an injunctive order restraining the Respondent his servants, partners, employees, and/or agents or any other persons acting under his instructions or his interests form entering, interfering with the Applicant’s entry, occupation and possession of the suit property.* 8. *That an order to issue for the Officer Commanding Station (OCS) Kiambu Police Station to assist in ensuring compliance with the orders above.* 9. *That the costs of this application be borne by the Respondent.* 10. *That this Honourable Court be pleased to make any other order as it deems just in the circumstances.* 2. The application is premised on the grounds set forth on its face and the affidavit in support thereof sworn by the Applicant on even date. 3. In brief, the Applicant avers that she is the registered owner of the property known as KIAMBU MUNICIPALITY BLOCK 5 (KIAMUMBI)/1223 which she purchased and developed through a loan from Barclays Bank, her former employer. 4. The Applicant was in an informal relationship with the Respondent which did not culminate into any marriage under the laws of Kenya and they have two children out of the said relationship. Owing to the Respondent’s violent character, the Applicant opted to move of the suit property in the year 2010 leaving he Respondent in the house on the suit property. Her attempts to have the Respondent vacate the suit premises have proved futile as he has refused to move out. The Applicant has been forced to rent houses at her own expense since 2010 and she is currently out of a job and unable to bear the burden of renting houses. 5. The application was met with opposition by the Respondent who filed Replying Affidavit sworn on 17th March 2026. He avers that the orders sought by the Respondent are prejudicial, oppressive and calculated to condemn him unheard contrary to the rules of natural justice. He is f the view that the orders sought are final in nature and they would render the suit nugatory as he would have been permanently removed from the suit property which he considers as his matrimonial home without a substantive determination of his beneficial interest therein. 6. He discloses that he previously instituted Nairobi Civil Suit No. 11 of 2010 (O.S) seeking division of matrimonial property but the same has never been determined. He adds that eviction at this interlocutory stage would defeat his proprietary rights and override his spousal interest recognized under section 93 of the Land Registration Act. 7. He avers that he personally developed the suit property by hiring his father who is a mason as the contractor and that he oversaw the entire construction process. He avers that he is presently unemployed and financially constrained and that eviction at this stage would occasion him irreparable hardship as he has no alternative property. 8. He avers that he has the original title of the suit property and he has been in peaceful occupation thereof since 2002. 9. He adds that he intends to apply to have this matter consolidated with the suit for division of Matrimonial Property. 10. The application was canvassed through written submissions pursuant to the court’s directions. The Respondent’s Preliminary Objection raised on the grounds that the suit property is matrimonial property was dismissed vide ruling dated 28th January 2026. **ANALYSIS AND DETERMINATION** 11. I have considered the Notice of Motion, supporting affidavit, Replying Affidavit and the submissions filed by both parties. The only issue for determination is whether the court should grant the order of eviction and/or injunction. 12. The principles governing the grant of interlocutory injunctions are well settled. The Applicant must establish a *prima facie*case with a probability of success, demonstrate that he stands to suffer irreparable harm which cannot be compensated by damages, and, where the court is in doubt, the Application is to be determined on a balance of convenience. This position was crystallized in **Giella vs Cassman Brown (1973) EA 358** and reaffirmed in **Nguruman Ltd vs Jan Bonde Nielsen & Others [2014] eKLR**, where the Court of Appeal emphasized that the three limbs are sequential and not conjunctive. **Whether the Applicant has established a prima facie case** 13. A *prima facie* case was defined in **Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others [2003] eKLR** as a case in which, on the material presented, a tribunal properly directing itself might conclude that there exists a right which has apparently been infringed. 14. The Plaintiff/Applicant’s claim is anchored on the fact that she is the registered proprietor of the suit property. She has annexed a copy of the title deed in her name. This fact has not been controverted by the Respondent though he claims that the suit property is matrimonial property. I am therefore satisfied tha the Applicant has established a prima facie case with a probability of success. 15. I will now determine whether the Applicant has demonstrated that she stands to suffer irreparable loss if the order of injunction is not granted. 16. The Applicant has deponed that she was initially living with the Respondent in the suit premises but she was forced to move out for her own safety due to the Respondent’s violent behavior. She has also stated that she is currently unemployed and she is struggling to pay rent yet the Respondents continues to enjoy exclusive quiet possession of the suit property. 17. The Respondent’s admission that he has the original title deed and his belief that he is has a beneficial interest in the suit property is clear evidence that he could alienate or sell it without the Applicant’s knowledge or consent thus occasioning he Applicant irreparable loss. 18. Regarding the balance of convenience, the material paced before the court tilts the balance in favour of the Applicant who has been deprived of the use of the suit property which she owns without any lawful cause. Even though I agree that an eviction at this stage would not be appropriate, I am nevertheless persuaded that the Applicant is entitled to the order of injunction. 19. The upshot is that the application has merit and I grant in in the following terms; 1. ***A temporary injunction is hereby issued restraining the Respondent his servants, partners, employees, and/or agents or any other persons acting under his instructions or his interests from entering, interfering with the Applicant’s entry, occupation and possession of the suit property pending the hearing and determination of the main suit.*** 2. ***The Officer Commanding Station (OCS) Kiambu Police Station is hereby directed to assist in ensuring compliance with the orders above.*** 3. ***The costs of this application shall be in the cause.*** **Dated signed and delivered virtually at Malindi this 16th day of July 2026.** **...........................** **J. M ONYANGO** **JUDGE** **In the presence of:** 1. Ms Anyango for Mr. Oduor for the Plaintiff/Applicant 2. Mr. Gitau for the Defendant/Respondent.