https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3614

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLC NO. 427 OF 2025** **SAMATAR SOLUTIONS LIMITED ………………………………… PLAINTIFFS** **=VERSUS=** **KIMANI OPERATIONS LIMITED ……………………………1ST DEFENDANT** **KIMANI VENTURES LIMITED ………………………………2ND DEFENDANT** **RULING** 1. By a Notice of Motion dated 28th August 2025, brought under Article 40 of the Constitution, Sections 1A, 1B, 3A, and 63(e) of the Civil Procedure Act, and Order 40 Rule 1 of the Civil Procedure Rules 2010, the Plaintiff/Applicant seeks the following orders: * 1. ***Spent.*** 2. ***Spent.*** 3. ***Spent.*** 4. ***That pending the hearing and determination of this suit, the Honourable Court be pleased to issue an order of injunction restraining the Defendants/Respondents whether by themselves, agents, servants, cronies or any person claiming through them from accessing, entering, threatening to enter and/or in any manner whatsoever interfering with the Applicant's and the Applicant's tenants' occupation and use of all those parcels of land known as Land Titles No. L.R No. 36/111/152 AND L.R No. 36/I11/153 OFF EIGHTEEN STREET, EASTLEIGH SECTION III AREA, WITHIN NAIROBI COUNTY, together with the building thereon known as TWIN TOWER BLOCK 1 & 2, and the Officer Commanding California Police Station to ensure compliance.*** 5. ***That the costs of this application be provided for.*** 2. The application is based on the grounds appearing on its face together with the supporting of Ali Mohamud Afrah, the Plaintiff’s sole director, sworn on even date. **THE APPLICANT’S CASE** 1. The deponent averred that the Applicant lawfully acquired the properties known as Title Nos. L.R. Nos. 36/III/152 and 36/III/153, located off Eighteen Street, Eastleigh Section III, Nairobi County, together with the buildings erected thereon, known as Twin Tower Block 1 and 2 (the suit properties herein), following a public auction held on 7th July 2025. 2. He further averred that after the sale, the Applicant took possession of the suit properties, contracted a security firm to guard the premises, and began active management, including collecting rent. 3. He stated that on 26th August 2025, a group claiming to be agents of the Respondents unlawfully stormed the suit properties, engaged in acts of violence, vandalism, and intimidated tenants, and attempted to take control of the premises' security, which prompted police officers on patrol to intervene and disperse them. 4. The deponent averred that on 3rd August 2025, a group of about fifteen armed individuals, led by one Diana, who purported to represent the 1st and 2nd Respondents, unlawfully and violently broke into the suit properties, assaulted the Applicant's contracted guards, vandalized parts of the property, and instructed tenants to pay rent to the Respondents. He stated that police officers on patrol intervened to restore order and ejected the intruders. Subsequently, the matter was reported at Buruburu Police Station by Abdullahi Ali Mohamed under OB No. 03/08/08/2025 at 0114 hours. 5. He further averred that on 7th August 2025, a larger group of over thirty armed men, acting under the instructions of the Respondents, invaded the suit properties, engaged in acts of violence and destruction, terrorized tenants, and attempted to take control of the security operations. He stated that police officers from Shauri Moyo, assisted by members of the public, were compelled to intervene to restore order. 6. He stated that the relentless attacks caused fear and insecurity among tenants, prompting some to vacate the premises without paying rent or service charges, which led to financial loss and prejudice to the Applicant. He asserted that the Respondents have no lawful claim over the suit properties, and therefore, their conduct constitutes trespass and unlawful interference with the Applicant's proprietary rights. 7. The deponent argued that unless an injunction is granted, the Applicant would lose possession, rental income, and effective control of the suit properties, to the detriment of both itself and its tenants. In conclusion, he urged the court to allow the application as prayed. **THE RESPONDENT'S CASE** 1. The Respondents filed a replying affidavit sworn by their director, Michael Kamau Kimani, in opposition to the application. The deponent denied the claim that a public auction was held on 7th July 2025 or on any other date concerning the suit properties. He stated that 7th July, commonly known as Saba Saba Day, is associated with demonstrations in Kenya. He argued that the entire city of Nairobi was under a total lockdown imposed by security agencies, thus preventing any bidders from accessing the advertised auction mart. 2. He further stated that the Respondent's manager, Diana Marita, made efforts and arrived at the auction mart around 11:00 am, where she found the entrance locked, and stayed until about 1:00 pm without witnessing any human activity inside or outside the building. 3. He argued that even if a public auction was held as advertised—which he denied—the terms of the auction required the highest bidder to pay ten per cent of the purchase price at the fall of the hammer, sign an agreement, and settle the remaining balance within ninety days from the date of the agreement. He contended that possession, collection of rent, and other income would only be transferred to the buyer upon full payment of the purchase price. He maintained that it was premature for the Applicant to take possession on the same day the auction allegedly took place, especially since the Plaintiff was still making instalment payments, as evidenced by its own annexures. 4. He argued that the Plaintiff was selective in the evidence presented to the Court, noting the omission of the memorandum of sale, which formed the basis of the alleged sale contracts and which, at clause 14, clearly explains when a purchaser would be entitled to take possession and collect rents. He also claimed that the Applicant had not disclosed to the Court that it attempted to purchase two buildings with separate titles, nor had it revealed the total purported purchase price for both properties. 5. The deponent stated that the Applicant misled the court and is therefore not entitled to the orders sought. He asserted that if the Applicant's claim is genuine, it should have lodged its complaint at California Police Station, which has jurisdiction over the suit properties, rather than proceeding selectively to Buruburu Police Station. He explained that the Respondent and its manager, Diana, were summoned by California Police and complied, whereas the Applicant never attended that station. 6. He contended that the Applicant's annexures indicate that the full purchase price was not paid, with instalment payments made on various dates from 7th July 2025 to 20th August 2025 and thereafter. He argued that during that period, the Applicant organized for the eviction of the 1st Defendant and misled both the police and the court. 7. The deponent asserts that the 1st Defendant remains the sole registered owner of the suit properties. He argued that the Plaintiff bid only for L.R No. 36/III/152, if any auction had taken place, which was denied, and offered no explanation for the forceful and unlawful seizure of L.R No. 36/III/153, for which no Certificate of Sale had been produced. 8. He asserted that the Applicant's unlawful encroachment and trespass have caused fear and insecurity among the 1st Defendant's tenants and workers, leading to financial loss and severe mental distress. In conclusion, he urged the Court to dismiss the application with costs. **THE RESPONSE** 1. In a further affidavit dated 19th February 2026, the deponent reiterated the contents of his supporting affidavit. He further stated that the matter was reported at Buruburu Police Station under OB No. 03/08/08/2025, which is a gazetted police station authorized to receive complaints of this nature. 2. The application was canvassed by way of written submissions. **THE APPLICANT’S SUBMISSIONS** 1. The Applicant filed its submissions dated 16th October 2025. 2. On behalf of the Applicant, Counsel submitted that the principles for granting an interlocutory injunction are outlined in the case of **Giella v Casman Brown & Co. Ltd (1973) EA 358,** which require the applicant to demonstrate a prima facie case with a probability of success; that the applicant would suffer irreparable harm that cannot be adequately compensated by damages; and that where doubt exists, the Court should decide the application based on a balance of convenience. 3. Regarding the first condition, Counsel on **Mrao Limited v First American Bank & 2 others (2003) eKLR,** which defines a prima facie case as one where a tribunal properly directing itself would conclude that a right has been infringed, thereby calling for an explanation or rebuttal from the opposing party. Counsel also cited **Nguruman Limited v Jan Bonde Nielsen & 2 others (2014) eKLR** to submit that the applicant must demonstrate a clear and unmistakable right to be protected, a material and substantive invasion of that right, and an urgent necessity to prevent irreparable damage. 4. Counsel submitted that the Applicant has established a prima facie case with a probability of success as he has acquired ownership of the suit properties. Counsel maintained that the Applicant's proprietary rights are directly threatened by the Respondents, who have no legitimate claim or proprietary interest in the suit properties. 5. Regarding the second issue, Counsel submitted that the Applicant is on the verge of suffering irreparable harm that cannot be adequately compensated by damages, as the Respondents had on numerous occasions sent persons to the suit premises who committed acts of violence, destruction, vandalism, assaulted the Applicant's contracted security guards, and threatened tenants. 6. Counsel argued that these actions caused the Applicant to incur financial losses through repair costs and loss of rental income, as tenants vacated the premises due to concerns for their safety. 7. Counsel submitted that the balance of convenience favours the Applicant, as it is the legal owner of the suit properties by virtue of the public auction held on 7th July 2025. Counsel relied on **Paul Gitonga Wanjau v Gathuthis Tea Factory Company Ltd & 2 others (2016) eKLR** to submit that, in determining where the balance of convenience lies, the Court should consider which party would suffer greater harm if an injunction is not granted. Counsel maintained that unless the Respondents are restrained by an injunction, the Applicant would continue to suffer loss of income and ongoing vandalism. **THE RESPONDENTS SUBMISSIONS** 1. The Respondents filed their submissions dated 2nd December 2025. 2. On behalf of the Respondents, Counsel submitted that the grounds raised in the application do not justify the injunctive orders sought but amount to a confession on oath by the Applicant of how it trespassed onto the 1st Respondent's property without any colour of right. 3. Regarding the first condition, Counsel relied on the cases of **Giella v Casman Brown & Co. Ltd [1973] EA 358**, **Mrao Limited v First American Bank & 2 others (2003) eKLR,** and **Nguruman Limited v Jan Bonde Nielsen & 2 others (2014) eKLR**, to submit that the Applicant had failed to establish a prima facie case. Counsel contended that no public auction was held on 7th July 2025. Counsel further contended that even if a public auction was held, which is denied, the Applicant did not comply with the terms of the memorandum of sale, particularly clause 14, which governed the conditions upon which a purchaser would be entitled to possession. Counsel maintained that there was no lawful basis for the Applicant to take possession of the 1st Defendant's property. 4. Regarding the second condition, Counsel submitted that the 1st Defendant's property is an income-generating investment and that any loss arising from it could be adequately compensated. Counsel further submitted that the Plaintiff, not the Defendant, caused the harm by unlawfully and forcibly taking possession of the 1st Defendant's property without justification or colour of right, and is now unjustly enriching itself by collecting rental income. 5. Counsel submitted that the Plaintiff has never acquired any rights over the suit properties, as there is doubt whether any public auction was held on 7th July 2025, which is the very basis of the Plaintiff's claim. 6. Counsel further submitted that the Plaintiff did not approach the court with clean hands, given that it had reported the alleged incidents at Buruburu Police Station, which is situated several kilometres from the suit properties, instead of the nearest stations, namely Biafra Police Post and California Police Station. Counsel noted that the OB dated 8th August 2025, reflected a referral to California Police Station, and that the Plaintiff had never attended that station despite being summoned there on the material date. 7. Counsel also submitted that the 2nd Defendant is a stranger to the matter and that all allegations raised against it are unfounded. 8. Counsel submitted that the Applicant's proprietary rights, if any, and those of the 1st Defendant are constitutionally protected under Article 40 of the Constitution and are further safeguarded under the Land Act, the Land Registration Act, and the Consumer Protection Act, 2012. Counsel argued that any party seeking to enforce debt recovery or take possession should comply with all relevant legal procedures. 9. In conclusion, Counsel urged the Court to dismiss the application with costs. **ANALYSIS AND DETERMINATION** 1. Having considered the application, the respective affidavits and rival submissions, the only issue for determination is whether the Applicant has met the threshold for the grant of an injunction. 2. The law governing applications for injunctions is **Order 40 Rule 1 of the Civil Procedure Rules, 2010,** which provides that: “***Where in any suit it is proved by affidavit or otherwise–*** ***(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or*** ***(b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the if any decree that may be passed against the defendant in the suit,*** ***The court may, by order, grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”*** 1. The principles for granting an injunction were established in the celebrated case of **Giella vs Cassman Brown & Co. Ltd. 1973 EA 358** as follows: ***a) Firstly, 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.*** ***d) Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.*** 1. The first issue for determination is whether the Applicant has established a prima facie case with a probability of success. In **Mrao Ltd v First American Bank of Kenya and 2 others, (2003) KLR 125,** the Court of Appeal defined a prima facie case 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”*** 1. The Applicant’s claim of ownership of the suit properties is based on a public auction held on 7th July 2025. In this regard, the Applicant annexed a certificate of sale in its favour concerning L.R No. 36/III/152 dated 7th July 2025, along with copies of banker's cheques and banking documents evidencing payments made on various dates from 7th July 2025 to 20th August 2025, a copy of an incident report dated 7th August 2025, prepared by its agents, Sunnyside Security Services, together with photographic evidence of damaged property. 2. The Respondents denied the Applicant’s claim that the suit properties were sold at an auction. They asserted that 7th July, commonly known as Saba Saba Day, is widely associated with civil protests. It was argued that the city of Nairobi experienced a complete lockdown imposed by security agencies, rendering access to the auction mart at New Kereita Building along Kirinyaga Road impossible. They further averred that their officer tried to reach the venue but found it locked and inaccessible. 3. The Defendants attached a copy of the Memorandum of Sale, which prima facie confirms that the Plaintiff purchased the suit premises, constructed on L.R Nos. 36/III/152 and 36/111/153, on 7th July 2025. 4. The Defendants contend that clause 14 of the Memorandum of Sale governed the conditions under which a purchaser would be entitled to take possession and collect rents upon full payment of the purchase price. 5. Although the Respondents argued that the Plaintiff only bid for L.R No. 36/III/152 and that no certificate of sale for L.R No. 36/III/153 was presented, it is clear from the Memorandum of Sale that the stated Kshs. 72 million was for both properties. Based on the evidence on record, I find that the Applicant has established a prima facie case. 6. On the second limb, the Applicant must demonstrate that it will suffer irreparable harm that cannot be adequately compensated by an award of damages. In **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR,** the Court of Appeal held that: ***“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be remedied by damages in the absence of an injunction, is a threshold requirement, and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is, injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy***.” 1. The applicant contends that it would suffer irreparable harm, including financial loss from tenants vacating the premises without paying outstanding rent, costs of repairing vandalised parts of the property, and the potential loss of effective control over the suit properties. 2. Based on the evidence on record, this Court is satisfied that if an injunction is not granted, the Applicant will suffer irreparable harm that cannot be adequately compensated by damages. 3. On the balance of convenience, the Court must weigh the hardship to be borne by the Applicant by refusing to grant the injunction against the hardship to be borne by the Respondent if the injunction is granted. In the matter at hand, the balance of convenience favours maintaining the status quo pending the hearing and determination of the suit. 4. The upshot of the foregoing is that the application dated 28th August 2025 is merited and is allowed on the following terms: * 1. ***An injunction is hereby issued restraining the Defendants/Respondents,*** ***whether by themselves, agents, servants, or any person claiming through them, from accessing, entering, threatening to enter and/or in any manner whatsoever interfering with the Plaintiff's and the Plaintiff's tenants' occupation and use of all those parcels of land known as Land Titles No. LR NO. 36/111/152 AND LR NO. 36/I11/153 OFF EIGHTEEN STREET, EASTLEIGH SECTION III AREA, WITHIN NAIROBI COUNTY, together with the building thereon known as TWIN TOWER BLOCK 1 & 2, pending the hearing and determination of this suit.*** 2. ***Costs shall abide with the outcome of the suit.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 3RD DAY OF JUNE, 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Mrs Gichuhi for the Defendants/Respondents Ahmed – Court assistant