https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4603

Osentu Ventures Company Limited v Kakui (Environment and Land Case E005 of 2026) [2026] KEELC 4603 (KLR) (20 July 2026) (Ruling) Neutral citation: [2026] KEELC 4603 (KLR) Republic of Kenya In the Environment and Land Court at Kilgoris Environment and Land Case E005 of 2026 MN Mwanyale, J July 20, 2026 Between Osentu Ventures Company Limited Applicant and John Lengunini ole Kakui Respondent Ruling 1.The application dated 20th of April 2026 subject of this Ruling seeks the following substantive orders; -i.Spentii.Spentiii.Spentiv.That pending the hearing and determination of this suit, this Honourable court be pleased to issue an order of inhibition, inhibiting the registration of any dealings whatsoever in respect of all that parcel of land known as Transmara/Oloirieni/21.v.The Land Registrar Kilgoris be and is hereby directed to register the inhibition ordered herein. 2.The Application is founded on sections 68 of Land Registration Act, as well as sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rules 1, 2, 3 and Order 51 Rule 1 of the Civil Procedure Rules, and grounds in support of the Application are interalia,i.Plaintiff is a lease of a portion of all that parcel of land known as Transmara/Oloirien/21 measuring 150 acres pursuant to a lease agreement dated 30.12.2022.ii.Upon execution of lease, plaintiff took possession of suit property and undertook extensive agricultural development thereon at a substantial financial cost, but the Defendant has unlawfully interfered with the plaintiff’s possession, trespassed onto the suit property, destroyed crops and developments in total breach of the lease agreement and there is real and imminent risk that the defendant may alienate transfer, change, lease or subdivide the suit property so as to defeat the plaintiffs interest and waste the substram of the suit. 3.Application is further supported by the affidavit of Edmond Kipyegon Langat, who reiterates the grounds herein and has annexed copies of the lease Agreement and copies of an official search dated 04.02.2026, and further depones having planted Boma Rhodes grass on a 100 acres and sweet potatoes on 50 acres, and has invested over Khs.30,335,000 and the Defendant had entered suit property without any justification vandalized the farm infrastructure and interfered irrigation systems and access routes. 4.When the application was filed at the exparte stage, Hon. Lady Justice Lucy Gacheru the Hon. duty Judge certified it as urgent and allowed prayer 2 of the said application. 5.Application was served and a Replying affidavit was filed by the Defendant/Respondent who deposes interalia that;i.The lease was dependent on conditions including timely and full payment of the agreed lease consideration.ii.That the plaintiff paid for the first period and defaulted in making subsequent payments hence breaching the terms of the lease and a demand letter was duly sent to the plaintiff in 2024 but Plaintiff/Applicant failed to honour the default and cannot enforce his right while he is in default.iii.That the defendant did not vandalize, or destroy any crop, hence by virtue of the default the plaintiff has not established a prima facie case with probability of success; as he has approached the court with unclear hands and is not deserving the orders and that the application ought to be dismissed with costs.iv.The Applicant filed a further affidavit, in which he deposed payment of Kshs. 900,000 upon the execution of lease, and that he was ready, willing and able to perform its obligations under the lease.v.That a third party unlawfully occupied the portions of the leased land and proceeded to cultivate, denying him access to the leased plants and made the plaintiff …….actual possession in May 2023.vi.That it was the Respondents actions that caused the delay.vii.The Applicant denied receipt of any demand notices. 6.The Application was argued by way of written submissions; Applicant’s Submissions 7.The Applicant has framed 4 issues for determination; in respect of the first issue on whether the court should order inhibition under section 68 of the Land Registration Act, and submits in respect thereof placing reliance on the decision of Mary Watiri Kirumba v Rose Nyokabi Ndugu as well as Shivahbal Wathabal Patel v Manibhai Hatibhai Patel and the decision in Esther Ndengi Njiru and Another v Leonard Gotei. 8.The applicants submit that there exists a genuine dispute regarding the parties’ respective rights and obligations arising from the lease agreement, secondly that there exist a legally recognizable interest and that the Respondent remains the registered proprietor of the entire parcel and remains the legal ability. 9.The Applicant submits that the jurisdiction of the court under section 68 of the Land Registration Act is preventative rather than curative. 10.The other three issues for determination can be summed up into one as to whether the Applicant has met the threshold of a grant of a temporary injunction under Giella v Cassman Brown, in which the Applicant on condition one submits that the existence of the lease is prima facie evidence of a case with probability of success. 11.The Applicant submits that he stands to suffer irreparable harm which may not be remedied by damages; and 12.That the balance of convenience tilts in the Applicants favour and thus urges the court to allow the application. Respondent’s Submissions 13.The Respondent submits that the Applicant is in breach of terms of the lease and issued demand letters dated 4th of June 2024, wherein he demanded lease rent for 2024. 14.Applicant did not heed to the demand letter neither did he comply with the said letters. 15.The Respondent submits no prima facie case as defined in Mrao Limited has been established since the Applicant has not met his obligations under the lease. That a party cannot benefit from its own wrong, hence the Applicant submits that not paid the yearly rent, the Applicant cannot seek protection of the court. The Respondent relies on Green Buffallo Safaris Ltd v Kenya Wildlife Services (2013) eKLR. 16.The Respondent submits that the existence of a quantifiable loss, confirms that damages are an appropriate remedy, to compensate any injury hence the loss cannot be said to be irreparable. 17.On inhibition orders, the Respondent submits that the same cannot be issued based on conjecture or apprehension. 18.In view of the contested issues of lack of performance of its obligations, the threshold for issuance of inhibition orders, has not been met. 19.The Defendant/Respondent thus seeks that the application be dismissed with costs. Issues for Determination 20.Having analyzed the application, the rival affidavits, and submissions as well as the considered the law, the court frames the following as issues for determination?i.Whether or not the application is merited, under this head the court shall determine firstly whether the threshold for grant of temporary injunction have been met?ii.And secondly whether an inhibition order can issue?iii.What reliefs ought to issueiv.Who bears the cost of the application? Analysis and Determination 21.On issue number 1, both the Applicant and Respondent agree on the principles for grant of a temporary injunction, each having cited the case of Giella v Cassman Brown. 22.Applying the principles thereof to the circumstances of this case, the court should first determine whether the Applicant has established a prima facie with probability of success. 23.A prima facie case as defined in Mrao Limited “is one which ion the material placed to the courts, a tribunal property directing itself will conclude that there exists a right which has been infringed by the opposite party so as to call for an explanation or rebuttal from the latter…” 24.The rights in which the Applicant seeks to protect by way of this temporary injunction application stem out of a lease Agreement which is contract that conferred certain rights which rights are recognized under Order 40 Rule 2, which this application is based on. 25.The Applicant however did not respond to the issues of non-payment of the annual rent for the lease apart from the initial payment of Kshs. 900,000 paid at the execution of the lease. The further affidavit did not address the issue of the said rent arrears, although it mentioned that the trespass by the Respondent caused the hardship. Whereas the court does not condone the actions of the Respondent, it equally does not find that the Applicant has established a prima facie case, in view of the allegation of breach of terms of the lease for payment of annual fees on the part of the Applicant, as the Applicant has approached the court for an equitable remedy of injunction while in arrears of rent and has not shown good faith as was held in Mrao Limited v First American Bank of Kenya Ltd Civil Appel 39/2002 (2003) KECA where the court held interalia; - at paragraph “….the Applicant has come to a court of equity but having failed to show utmost good faith, I cannot but hold that it was not entitled to the injunction it prayed for in its application…” hence the applicant has not established a prima facie case with probability of success. 26.As was stated in Kenya Commercial Finance Limited v Afraha Limited where a prima facie case has not been established the court does not need to inquire on the other two principles of Giella v Cassman Brown Limited. 27.Should the court however be wrong that the Applicant has not established a prima facie, which it is not, the court shall look at the 2nd principle in Giella v Cassman Brown as to whether the loss to be suffered cannot be adequately compensated by damages. 28.In the Plaint upon which this application is founded paragraph 10 thereof has quantified the losses and has sought judgment ofa.Kshs. 30,335,000/= being quantified value of crops and agricultural investments destroyed.b.Kshs. 9,100,500 being contractual penalties.c.General damages for trespass.d.Aggravated and exemplary damages as part of the reliefs. 29.The Respondents submit that having pleaded an award of damages as well as quantified the claim, the Applicant essentially concedes that the injury can be compensated by damages hence fails the 2nd test under Giella v Cassman Brown Ltd. 30.The Respondent’s Advocates position finds backing in the decision in the case of Nguruman Ltd v Nielsen and 2 Others Civil Appeal No. 77 of 2012) 2014 KECA 606 where at paragraph 29 the court observed as follows; -“ 29.On the second factor, that the applicant must establish that he might “otherwise” suffer irreparable injury which cannot be adequately remedied by damages……..An injury is irreparable where there is no standard by which their amount can be measure with reasonable accuracy or the injury or harm is such a that monetary compensation of whatever amount, will never be adequate remedy…” 31.It follows therefrom that the Applicant has not met the conditions for grant of a temporary injunction and answers issue number 1 in the negative. 32.On whether the Applicant is entitled to an inhibition order. The court is aware of the powers conferred on it under section 68 of the Land Registration Act, the Applicant seeks an inhibitory order against title No. Transmara/Oloirien/21 and has exhibited a copy of the certificate of official search of the suit parcel which reveals the approximate area to be 157.66 Ha. The Applicant has a lease over a portion measuring 150 acres in the said suit property, the court considers it punitive to order an inhibition against the whole suit property as sought by the Applicant and therefore finds that the Applicant is not entitled to the said relief as prayed, and answers issue No. 2 in the negative and the application therefore fails. 33.On what reliefs ought to issue, the court has found that the Applicant has not met the threshold for grant of an injunction, and that an inhibition order would occasion great prejudice to the Respondent, but acknowledges that the Applicant and the Respondent have a contractual relationship vide a lease entered between them, and that pursuant to the lease, the Applicant though in arrears has undertaken investment on the portion leased to him and the court in realization that the suit property ought to be preserved, hereby issues an order for the maintenance of the current status quo on the suit property, so as to preserve and maintain the lease dated 30th of December 2022 and for the Respondent not to interfere with the occupation and possession of the Applicant pursuant to the said lease, till determination of this suit. 34.The order for maintenance of status quo as issued above is issued pursuant to powers of the court under practice direction 28 (k) gazette Notice 5178/2014. 35.Both parties to the lease to perform their obligations under the lease pending determination of this suit. 36.Costs of the application awarded to the Respondents. DATED AT KILGORIS THIS 20TH DAY OF JULY, 2026HON. M. N. MWANYALEJUDGEIn the presence of;CA – Sylvia/GilbertMr. Wafula for the RespondentMs. Kolum for Applicant