Ongeri v Yusuf & 2 others (Environment and Land Petition E077 of 2024) [2026] KEELC 5087 (KLR) (31 July 2026) (Ruling)

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC PETITION NO. E077 OF 2024** **SAMSON KEGENGO ONGERI………………………...…………..PETITIONER** **=VERSUS=** **SUSPECTED AYUB ABDI YUSUF …………………….….…..1ST RESPONDENT** **EASTLANDS LANDGRABBERS………………………..……..2ND RESPONDENT** **BURURUBURU SUB-COUNTY COMMANDER…………..3RD RESPONDENT** **RULING** 1. By a Chamber Summons dated 16th May 2025 brought under Order 1 Rule 3, Order 10(2), 10(4) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, the Applicant seeks the following orders: 2. ***That the National Bank of Kenya (hereinafter the Intended 4th Respondent) be enjoined as the 4th Respondent in these proceedings.*** 3. ***THAT Goldseal Corporation Limited (hereinafter the Intended 5th Respondent) be enjoined as the 5th Respondent.*** 4. ***THAT pending the hearing and determination of this suit, this Honourable Court be pleased to issue an injunction restraining the Petitioner, his agents or servants from evicting, interfering with possession or alienating the suit property or in any other way interfering with the Applicant’s quiet possession thereof.*** 5. ***THAT the costs of the application be in the cause.*** 6. The application is based on the grounds appearing on its face together with the supporting affidavit of Joab Nahshon Ashitiba, the Chairman of Kwa Miwa Umoja 111 welfare group, sworn on the same date. **THE APPLICANT’S CASE** 1. The deponent averred that at all relevant times, the 4th Intended Respondent was the registered chargee of the suit property due to a loan facility extended to the Petitioner. 2. He further stated that the Petitioner defaulted on repaying the loan facility granted to him and his company, Pipeplastics Samkolit (K), which led the 4th intended Respondent to exercise its statutory power of sale in 1996, but the Petitioner secured an injunction to halt the execution process. 3. He explained that the Petitioner filed HCC No. 1078 of 1996 against the Bank, challenging its right to exercise its statutory power of sale. He stated that the bank appealed the decision in High Court Civil Appeal No 95 of 1999, which was allowed by the Court of Appeal. 4. Following the default and the conclusion of the pending suits, the 4th Intended Respondent began exercising its statutory power of sale and appointed the Intended 5th Respondent in 2015 as its agent to facilitate the eviction process or negotiate the terms of sale with the unlawful occupants. 5. He averred that the 4th Intended Respondent wrote to the NLC confirming that the suit property had been sold by the bank to various individuals, who had been occupying the land as squatters in consultation with the local administration and Nairobi City County. 6. He further averred that in 2016, the 5th Intended Respondent entered into individual sale agreements with the applicants, and each paid Kshs 195,000 as the purchase price for the plot 7. He argued that in 2023, the Intended 4th Respondent unlawfully purported to release the original title and discharged the charge registered against it without notifying or obtaining consent from the Applicants, who held a beneficial interest. 8. He argued that the proposed joinder is necessary for the effectual and complete adjudication of the issues in this suit. **THE PETITIONER’S CASE** 1. The Petitioner filed a replying affidavit in opposition to the application. 2. He argued that the application is misconceived, as the Petition relates to the eviction of illegal squatters, not the ownership of the suit property. He asserted that the issue of ownership was conclusively determined in Civil Appeal No 95 of 1999, HCC No 1078 of 1996, HCC No 432 of 2006, CMELC No E388 of 2021, and Milimani ELC No E338 of 2023. 3. The Petitioner asserts that he is the registered owner of the suit property and holds an indefeasible title thereto. He argued that the issue of ownership is res judicata and an abuse of the court process. He maintained that they were not opposed to the joinder for clarification purposes only. 14. He stated that on 22nd May 1992, he guaranteed Pipe Plastic Samkolit Ltd for a loan of Kshs 8 million from the National Bank, which it later defaulted on repaying. He explained that after the bank demanded KShs 80 million, he filed HCC No. 1078 of 1996 and 432 of 2006. In 2006, the Court ordered him to pay KShs 2.5 million per month to discharge his obligations as guarantor. 15. Although the payment had been made, the Bank demanded KShs 130 million and escalated the matter to the Court of Appeal, which referred it to the High Court and upheld the status quo. 16. He asserted that the bank released the original title and discharge title following the conclusion of the litigation. He stated that he cannot access his property because violent squatters are claiming ownership thereof. 17. He argued that the Applicant has not met the threshold for the grant of an injunction. In conclusion, he urged the Court to dismiss the application with costs. 18. The application was canvassed by way of written submissions. **ANALYSIS AND DETERMINATION** Having considered the application, the response and the submissions by the Applicant, the following issues fall for determination; 1. *Whether the Intended 4th and 5th Respondents should be joined in these proceedings as the 4th and 5th Respondents.* 2. *Whether the Applicant has satisfied the conditions for the grant of an injunction* 20. Regarding the first issue, the law governing joinder of parties is based on Order 1 Rule 10(2) of the Civil Procedure Rules, which states as follows; ***“The Court may at any stage of the proceedings, either upon, or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant or whose presence before the court may be necessary to enable the court to effectually and completely to adjudicate upon or settle all questions involved in the suit, be added.”*** **Black’s Law Dictionary (8th Edition)** defines an Interested Party as: ***“a party that has a recognizable stake and therefore a standing in the matter.”*** In **Trusted Society of Human Rights Alliance vs Mumo Matemo & 5 Others (2015) eKLR,** the Court held that: ***“An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the court when it is made either way. Such a person feels that his interest will not be well articulated unless he or she appears in the proceedings and champions his or her cause.”*** 21. Having considered the competing positions, the Court finds that the Intended Respondents are not strangers to the dispute. The Applicants' claim to remain on the suit property is based on transactions allegedly carried out by the 4th Intended Respondent through its agent, the 5th Intended Respondent. Similarly, the Petitioners' assertion that the title was released following the discharge of the charge and previous litigation concerns the 4th Respondent. Any determination regarding the legality of these transactions or the parties' competing claims is likely to affect the rights of both proposed Respondents. 22. The Court is satisfied that the joinder of the 4th and 5th intended Respondents is necessary for the complete adjudication of the issues raised in the Petition. 23. Regarding the second issue, the principles governing the granting of an injunction were established in the case of **Giela v Cassman Brown (1973) EA 358,** as follows: ***a) First, the applicant must show a prima facie case with a probability of success.*** ***b) Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages.*** ***c) Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.*** 24. The first issue for determination is whether the Applicant has established a prima facie case. A prima facie case was defined in **Mrao Ltd v First American Bank of Kenya and 2 others, (2003) KLR 125** as follows: ***"A Prima facie case in a civil application includes, but is not confined to, a genuine and arguable case. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”.*** 25. The Applicant contends that they have acquired a beneficial interest in the suit property after entering into the sale agreements with the 5th Intended Respondent. The Petitioner asserts that he is the registered owner of the suit property. 26. In **Mbuthia vs Jimba Credit Corporation Ltd [1988] KLR,** the Court held that: ***“In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law, and the court should only weigh the relative strength of the parties' cases.”*** 27. Similarly, in **Edwin Kamau Muniu –vs- Barclays Bank of Kenya Ltd, NBI HCCC No.1118 of 2002,** the Court held that: ***“In an interlocutory application, the court is not required to determine the very issues which will be canvassed at the trial with finality. All the court is entitled to at this stage is whether the Applicant is entitled to an injunction sought on the usual criteria.”*** 28. The Petition has produced a copy of the title to demonstrate that he is the registered owner of the suit property. The Applicants' claim to the suit property is based on alleged sale agreements entered into with the Intended 5th Respondents. Whether those transactions conferred enforceable rights is a substantive issue that can be determined only after hearing evidence from all parties. 29. In any event, the Court notes that there is a subsisting order maintaining the status quo pending the hearing and determination of the Petition. The Applicants have not demonstrated that the existing order is inadequate to warrant the grant of an injunction. In light of the foregoing, I find that the Applicant has not established a prima facie case with a probability of success. 30. In an application for interlocutory injunction, the Applicant must satisfy the three conditions before an injunction is granted. 31. In the case of **Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR**, the Court of Appeal stated as follows: ***“…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 stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… if the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further 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 recoverable in law are 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. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.*** 32. Having found that the Applicant has failed to establish a *prima facie* case with a probability of success, it will be immaterial to delve into the other limbs that are to be considered on the grant of a temporary injunction. In so finding, I am persuaded by the holding in the case of **Commercial Finance Co. Ltd vs Afraha Education Society & Others C A Civil Appeal No. 142 of 1999,** where the court held that: **“……*the judge should address himself sequentially on the conditions for granting an injunction instead of proceeding straight away to address himself on the third condition because where the Applicant has no registered interest in the land comprised in the title dispute and thereof has not demonstrated that it has a prima facie case with a probability of success, no interlocutory injunction would be available.”*** 33. The upshot of the foregoing is that the application dated 16th May 2025 lacks merit and is hereby dismissed with costs. **RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY 2026.** **..............................** **T. MURIGI** **JUDGE** **IN THE PRESENCE OF:-** Mugi holding brief for Kamau for Goldseal Mwende for the 2nd Respondent Mutua for the 4th Intended Interested party Vena – Court Assistant