https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3852

Aura v Kurgat & 2 others (Environment and Land Case E021 of 2026) [2026] KEELC 3852 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEELC 3852 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Case E021 of 2026 CK Nzili, J June 24, 2026 Between Robert Aura Plaintiff and David Kurgat 1st Defendant The County Land Survey Trans Nzoia 2nd Defendant The Attorney General 3rd Defendant Ruling 1.Before this court is an application dated 23/3/2026, seeking a temporary order of injunction barring and restraining the respondents, their agents, servants, employees, or anyone acting through any proxy from trespassing onto, entering, causing destruction, laying claim, subdividing, placing beacons, transferring, erecting structures, fencing off, or in any manner interfering with Land Parcel No. Kitale Municipality Block 7/192, pending hearing and determination of this suit. 2.The reasons are contained on the face of the application and in a supporting affidavit of Robert Aura, sworn on 23/3/2026. The applicant deposes that he applied for land with the office of the Commissioner of Land in 1998, with directions that the Physical Planner and Surveyor Trans Nzoia would prepare a Part Development Plan (PDP) and survey the plot, which they did, and showed him his plot. 3.The applicant avers that after the plot was confirmed as available, he was issued with an allotment letter on 3/7/1998, attached as RA-(1), accepted the same, and made payment of Kshs.28,440/= as per the receipt attached as annexure RA-(2). 4.The applicant deposes that after the National Land Commission prepared the initial Registry Index Map (RIM), an error was noted and was forwarded to the Director of Surveys for registration and preparation of a lease document as per the letter dated 22/6/2016 annexed as RA-(3). 5.Further, the plaintiff deposes that, though the lease was prepared and forwarded as per a copy marked RA-(5), it was returned by the Land Registrar Kitale as per a letter dated 22/12/2022, marked as RA-(4), for correction. 6.The plaintiff deposes that he was assisted by one Esther Nyakambi to pursue the registration and have a lease prepared as per annexure RA-(6). The applicant deposes that he thereafter made payments for the survey of his plot and also that of Esther Nyakambi, as per a cheque dated 3/7/2014, attached as annexure RA-(7). 7.The applicant deposes that he also took possession of the plot soon after it was surveyed and beacons erected in 1998, erected a structure therein, and also planted trees as per the photos marked RA-8(a), (b), (c), and (d), leaving a caretaker in charge. 8.The applicant deposes that he was recently called by the caretaker and informed that officers from the Directorate of Criminal Investigations were looking for him. He thus went to their offices, and was told that the 1st respondent had complained of invasion of his Plot No. 555, to which he was shown an uncertified, signed, and stamped RIM, annexed as RA-(9). 9.Similarly, the applicant deposes that as the investigation went on, he received a letter dated 13/3/2026 from the 2nd respondent attached as R-(10), stating that he would visit the site on 17/2/2026, during which the DCI officers took measurements on several plots, including Block 6/192, 193, and 194, and left the site. 10.The plaintiff deposes that after leaving the site, the very evening, the 1st respondent sent goons who dug holes and fenced off the three plots stated above. Further to this, the applicant deposes that on 20/3/2026, over 20 goons came onto the suit land armed with crude weapons, led by a chief, Wycliffe, who came on board a tractor carrying fencing posts, became hostile to the caretaker, to which a report was made to the police as OB No. 18/20/3/2026, attached as annexure marked RA-(11). The applicant deposes that the goons proceeded to erect a barbed wire fence and mud structures on the land while subdividing it into three plots as per photos marked RA-12(a), (b), (c), (d), and (e). 11.The applicant deposes that the 1st respondent’s acts have caused massive destruction to his development, including the maize he had planted thereon, hence the reliefs sought. 12.The application is opposed by a replying affidavit sworn by David Kurgat, the 1st respondent, on 15/4/2026, stating that he is the sole owner of Land Title No. Kitale Municipality Block 7/555 as per a title issued on 23/2/2026, attached as annexure marked DK-(1), which the applicant invaded in March 2026 and attempted to erect structures on, leading to a report to the DCI, who reported the matter to the 2nd respondent by a letter dated 10/3/2026, to visit the ground and ascertain the settlement position on the ground, attached as annexure DK-(2). 13.The 1st respondent deposes that the County Surveyor visited the ground with survey maps and ascertained the location of land Title Nos. Kitale Municipality Block 7/555 and 192, which he confirmed by a letter dated 18/3/2026, and told each of the parties to stay within their respective portions, attached as DK-(3), which findings the applicant has deliberately failed to disclose to the court that he was shown his plot and told that he had encroached on his plot. 14.The 1st respondent deposes that his plot does not border the applicant’s land, since there is a road separating the two as per the PDP map attached as DK-(4). 15.Again, the 1st respondent deposes that despite the said findings, the applicant remains dissatisfied with the information and directions of the 2nd respondent and also refused to confine himself to his plot. 16.The 1st respondent denies sending any goons to the applicant’s land; otherwise, he is invading his plot, and he is also embroiled in a fist with other persons, unknown to him, alleging invasion of the applicant’s land, and that instead of seeking their eviction, he wants to take up his land through the court. 17.The 1st respondent deposes that after obtaining the orders on 31/3/2026, the applicant, accompanied by goons at night, uprooted his fencing posts, and tried to evict his caretaker as per photos attached as DK-5(a), (b), (c), and (d), leading to a police report vide OB No. 06/04/04/26 attached as DK-(6). 18.The 1st respondent terms the applicant as coming to court with unclean hands, without disclosing what he knows about the situation on the ground and taking advantage of the orders of 31/3/2026 to evict him from his own land, which is not the applicant’s, with full knowledge that the 1st respondent has no interest in Land Title No. Kitale Municipality Block 7/192, although he has a lease for Kitale Municipality Block 5/192, he is seeking orders in relation to Block 7. 19.The 1st respondent denies that the applicant’s lease had been amended as alleged when the Land Registrar returned it. 20.The plaintiff relies on written submissions dated 16/4/2026. Reliance is placed on Giella -vs- Cassman Brown & Co. Ltd [1973] EA 358, Rex Developers Ltd & Others -vs- Kenya Commercial Bank Ltd & Others [2026] KEHC 2856 [KLR], Nguruman Ltd -vs- Jan Bonde Nielsen & Others [2014] eKLR. Arthi Highway Developers Ltd -vs- West End Butchery & Others [2015] eKLR, Dina Management Ltd -vs- County Government of Mombasa & Others [2023] eKLR, Keino -vs- Ausin Gishu County Government & Another [2026] KEELC 520 [KLR], and Pius Kipchirchir Kogo -vs- Frank Kimeli Tenai [2018] KEELC 2424 [KLR]. 21.The 1st respondent relies on written submissions dated 15/4/2026. Reliance is placed on Mrao Ltd -vs- First American Bank of (K) Ltd & Others [2003] KLR 125, Efficient Dynamic & Supplies Ltd -vs- Gret Café Ltd: RNN Motors Ltd (IP) 2024 KEELC 3888 [KLR] and Chebii Kipkoech -vs- Barnabas Tuitoek Bargoria & Another [2019] eKLR. 22.A party seeking temporary orders of injunction has to surmount the three ingredients set out in Giella -vs- Cassman Brown (supra). A prima facie case is established where, looking at the material before the court, a right has been infringed or violated, calling for an explanation from the opposite party, as held in Mrao Ltd -vs- First American Bank of (K) Ltd (supra). 23.Irreparable loss or damage is defined in Nguruman Ltd -vs- Jan Bonde Nielsen (supra), as one which may not be quantified monetarily or compensated by way of damage. It must be real, apparent, and imminent. Mere apprehension or fear will not suffice. Evidence must be provided that the applicant is likely to suffer irreparable injury if the orders sought are not granted. See Mrao Ltd (supra), Efficient Dynamic & Supplies Ltd (supra). 24.A balance of convenience is the degree of inconvenience or harm likely to be suffered by the plaintiff in the absence of an injunction, being greater than that of the defendant, if the injunction is granted and the suit ultimately dismissed, as held in Pius Kipchirchir Kogo (supra). 25.A court is not expected to conduct a mini-trial to establish the three ingredients that must be met logically, sequentially, and distinctly by an applicant. The court does not make definitive findings on both facts and the law. All that it has to establish, on a balance of probability, is whether the applicant has established a prima facie case likely to succeed at the hearing, warranting preservation of the suit property by way of temporary injunctive orders. 26.In this suit, the applicant pleads through a plaint dated 23/3/2026 that he has lived on the land since 1998, when he was issued with a letter of allotment, accepted the same, took vacant possession, commenced development thereto and was eventually issued with a lease dated 19/2/2022, even though it had some errors designating the parcel as Kitale Municipality Block 5/192, instead of Kitale Municipality Block 7/192. 27.The applicant pleaded that the 1st respondent only started laying the claim on his land in March 2026, after which the 2nd respondent, on 17/3/2026, allegedly carved out part of his Plot No. 192, together with Plot Nos. 193 and 194 as belonging to the 1st respondent, who immediately started fencing off the land and erecting structures therein, with an intention of locking out and demolishing all the applicant’s structures thereon. 28.The applicant, in his supporting affidavit, has attached the paper trial as annexures marked RA-(1) - RM-12(a), (b), (c), (d), and (e), which he used to acquire the plot. He also submits that based on the said documentation, he has demonstrated a recognisable and equitable right or interest in the suit land which is threatened with or has been infringed by the 1st respondent, to call for the interim orders sought. 29.The plaintiff further submits that, guided by Arthi Highway Developers Ltd (supra), where there is equal equity, the law prevents, and in this case, he has been in open, continuous, and possession of the land, unlike the 1st respondent, since 1998, which possession and developments constitute constructive notice thereby defeating any claim to the land by the 1st respondent, whose title is impeached and cannot override his established equitable interest on the land as held in Dina Management Ltd (supra). 30.The court held that for a title deed to be valid, it ought to arise from a process that is lawful, procedural, and formal. When two title deeds to a land are in contest, it is not enough to waive the instrument of title, as held in Munyu Maina -vs- Hiram Gathiha Maina [2013] KECA 94 [KLR], one has to go beyond the instrument of title and show that he obtained a title in a regular, procedural, and formal manner free from any encumbrances, including those not noted in the title register. 31.Lands are not vegetables that are bought from unknown sellers. They are valuable properties. An owner is expected to undertake due diligence before acquisition to establish the status of the land on the ground. 32.The 1st respondent is silent on the process of the acquisition of his title documents in February 2026. When there is a claim over the same piece of land, each party has to adduce before the court, evidence on the root title of its title, which must not cast any doubt or have a break in the chain of acquisition as held in Presbyterian Foundation -vs- Kibera Siranga SHG Nursery School [2025] eKLR and General & Another -vs- Hussein & Others Civil Appeal No. 100 Eldoret No. 32 of 2018[2025] KECA 1022 [KLR] (5th June 2025) (Judgement), the court said that the law of evidence revolves around facts and proof which when combined show the merits or otherwise of a party’s case. 33.The court cited Nelson Kagunza Chai & Others -vs- Pwani University [2014] eKLR, that a PDP must be drawn and approved before alienation of unalienated land, followed by a letter of allotment based on the approved PDP. The court cited African Line Transport Co. Ltd -vs- Attorney General, Mombasa HCC No. 276 of 2012, that planning and surveying come first before allocation. 34.In this suit, the 1st applicant relies on a letter dated 18/2/2026 by the County Surveyor. It cannot pass a legal muster to see how the 1st respondent obtained his title to the land. It does not refer to a PDP or allotment letter, on which the lease and certificate of lease issued to the 1st respondent were based. The letter is silent on which RIM was used to establish and point out the position of the four plots. It is not a determination of boundaries as per Sections 14-29 of the Land Registration Act. 35.In my considered view, the alleged referral of the matter to the police did not oust the obligation of the 1st respondent to establish his root of title. It is not the police or the land surveyor who allocated the 1st respondent the land in the first instance. The 1st respondent should have simply gone to the allocating authority, and so would have the police if they were minded to assist the parties, to refer the matter to the Directorate of Criminal Investigations, Land Fraud Department, to verify from the allocating authority who holds the valid instrument of ownership. 36.In this case, the 1st respondent has not supplied before this court evidence to show where he applied for the plot, whether there was verification of its availability, on both the paper and on the ground, and secondly, if he paid the requisite fees for the issuance of instruments, prior to the issuance of the title documents in February 2026. 37.The 2nd respondent, equally, had the statutory duty before visiting the site, to ascertain what instrument of ownership other than the certificate of lease and lease document, the 1st respondent had vis-à-vis the applicant. 38.In Korir -vs- Njoki & Another [2023 KECA 439 [KLR], the court held that where the authenticity of a title deed is in dispute, one cannot come to court, place the same title before the court and claim its sufficiency in evidence, without going further to explain the process through which he obtained the title. 39.In Elizabeth Wanjiru Githinji & Others -vs- Kenya Urban Roads Authority [2019] eKLR, the court held that it is not sufficient to wave a title and assert indefeasibility. See also Henry Muthee Kathurima -vs- Commissioner of Lands & Another [2015] eKLR. 40.The applicant has pleaded the events of 17/3/2026 by the 2nd respondent. It is not true that there was non-material disclosure in obtaining interim orders. In any event, the letter dated 17/3/2026 is of no legal consequence as alluded to above. 41.The court finds that the applicant has established a prima facie case with a probability of success at the hearing. There is demonstrable evidence of interference with his existing rights by the 1st respondent, which is eminent and not based on any legal documentation of allocation of the title documents held by the 1st respondent, when the applicant was already the first allottee in 1998, as per the paper trail availed. The balance of convenience tilts in favour of issuing a temporary injunction. 42.The 1st respondent is directed to stop any interference with the suit land in any manner until the suit is heard and determined. 43.Mention on 23/7/2026 for pre-trial conference. Mention notice to issue. 44.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 24TH DAY OF JUNE 2026.In the presence of:Court Assistant - DennisNo appearance for the partiesHON. C.K. NZILIJUDGE, ELC KITALE.