https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5181

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELCLC NO. E006 2026** **MOSES SANGORO ( Suing as the administrator to the estate of SINAIDA MARY AKATSA (Deceased)….…………… PLAINTIFF** **-VERSUS-** **BENNET EZEKIEL UDOTO OKUMU…………..1ST DEFENDANT** **LAND REGISTRAR KAKAMEGA……………....2ND DEFENDANT** **RULING** **Introduction** 1. Before court is a Notice of Motion application dated4th March 2026 filed by the applicant seeking the following orders: 2. **Spent.** 3. **Spent.** 4. **That a temporary injunction do issue restraining the Defendant/ Respondent either by himself, his agents, or any person whosoever acting under his instructions from taking possession, trespassing into, selling or dealing in land L.R Butsotso/ Indagalasia/787 in any manner whatsoever pending the hearing and determination of the main suit herein.** 5. **That the costs of this application be borne by the Defendant/ Respondent.** 6. The application is supported by the affidavit of the applicant sworn on 4th March 2026. The applicant states that he is the son and legal administrator of the estate of the late Mary Sinaida Akatsa, who was the registered proprietor of land parcel L.R. Butsotso/Indagalasia/787 measuring approximately 4.0 hectares. He depones that the deceased acquired the property through a transfer dated 13th March 1991 and was issued with a title deed on 21st March 1991. According to the applicant, the deceased remained in quiet possession of the land throughout her lifetime and never sold or otherwise disposed of the property. 7. The applicant further avers that in April 2019 the deceased discovered that the 1st respondent had obtained a title to the same parcel, allegedly having purchased it from one Boniface Kamau Nyaga. He contends that neither Boniface Kamau Nyaga nor the 1st respondent had any lawful interest in the suit property and that one of the competing titles must therefore be fraudulent. In support of his claim, he annexed copies of the transfer documents, Land Control Board consent and the title deed issued to the deceased. 8. The application is opposed. The 1st respondent filed a replying affidavit sworn on 23rd May 2026, while the 2nd respondent did not file any replying affidavit. The 1st respondent depones that the application is frivolous and devoid of merit, contending that land parcel L.R. Butsotso/Indagalasia/787 no longer exists, having been lawfully subdivided into parcels Butsotso/Indagalasia/7230 and 7231. He states that he purchased the original parcel in 2012 from the registered proprietor, obtained a valid title after complying with all legal requirements, and has remained in peaceful occupation of the land before and after the subdivision. 9. The 1st respondent further states that it was the deceased who trespassed onto his land, prompting him to institute Kakamega MCELC No. 64 of 2019 against her. He maintains that his title was lawfully issued by the 2nd respondent after a valid transfer from the previous registered proprietor and argues that granting the orders sought would occasion him irreparable loss by preventing him from utilizing property he has occupied peacefully for several years. 10. In a rejoinder, the applicant filed a further affidavit sworn on 17th June 2026. He reiterates that the titles relied upon by the 1st respondent, including those relating to the alleged subdivisions, are fraudulent and incapable of defeating the deceased's original title. 11. The applicant further points out that the documents exhibited by the 1st respondent indicate that the suit property was registered in the name of the deceased on 21st March 1991 and later reflected as registered in the name of Boniface Kamau on 28th November 2011. He contends that the 1st respondent has failed to explain how the property lawfully passed from the deceased to Boniface Kamau. 12. It is therefore his position that the 1st respondent's titles are unsupported by any lawful root of title. The applicant further disputes the 1st respondent's claim of occupation, maintaining that the deceased and, subsequently, her estate have always remained in possession of the suit property. He avers that the 1st respondent only began interfering with the land and fencing portions of it after the deceased's demise. 13. The application was canvassed by way of written submissions. The court has considered the applicant’s written submissions dated 18th June 2026 and the 1st respondent’s written submissions dated 17th June 2026, both of which are on record. **Analysis and determination** 1. The court has carefully considered the Notice of Motion, the affidavits filed in support thereof and in opposition thereto, together with the parties’ respective submissions. In its view, the sole issue falling for determination is whether the applicant has satisfied the legal threshold for the grant of a temporary injunction pending the hearing and determination of this suit. 2. Order 40 Rule 1 of the Civil Procedure Rules vests this court with the jurisdiction and discretion to grant temporary injunctive relief where it is demonstrated that the property in dispute is in danger of being wasted, damaged, alienated, wrongfully sold in execution of a decree, or otherwise disposed of. The court may also grant such relief where it is shown that, unless restrained, the respondents’ actions are likely to obstruct or delay the execution of any decree that may ultimately be issued in favour of the applicant. 3. The principles governing the grant of a temporary injunction are now well settled. An applicant must establish a prima facie case with a probability of success, demonstrate that they stand to suffer irreparable injury which cannot adequately be compensated by an award of damages if the injunction is withheld, and where the court is in doubt, the application is to be determined on a balance of convenience. These principles were set out in **Giella v Cassman Brown & Co. Ltd [1973] EA 358.** 4. The meaning of a *prima facie* case was considered by the Court of Appeal in **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125,** where the court stated: **“*A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to 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 Court of Appeal further expounded on the principles governing interlocutory injunctions in **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR,** holding that the three conditions set out in **Giella v Cassman Brown** are distinct, sequential and mandatory hurdles by stating as follows; ***“These are the three pillars on which rests 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. See Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] 1 EA 86. 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. The existence of a prima facie case does not permit ‘leap-frogging’ by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise.”*** 1. In the instant case, the plaintiff has demonstrated that the suit property was registered in the name of the deceased on 21st March 1991, a fact confirmed by the green card produced by the 1st respondent. The 1st respondent alleges to have purchased the suit property from one Boniface Kamau Nyaga. The green card shows in its entry No. 11 that on 28th November 2011 the suit property was registered in the name of Boniface Kamau and that on 11th April 2012 it was registered in the name of the 1st respondent. 2. While the registration in the name of the 1st respondent is shown to be a transfer on consideration of Kshs. 3, 000, 000/=, the basis of registration of the suit property in the name of Boniface Kamau cannot be discerned from the green card. Therefore, how Boniface Kamau became registered as owner of the suit property and the manner of his acquisition of the suit property is not disclosed. 3. From the plaint relied upon by the 1st respondent, and which was filed by the 1st respondent vide Kakamega MCL& E Case No. 4 of 2019, the 1st respondent herein alleges to have purchased the suit property on 5th April 2012. No sale agreement has been provided to support that proposition. I am therefore satisfied that a *prima facie* case has been established by the plaintiff herein. 4. Regarding whether the plaintiff will suffer irreparable harm, the defendant has confirmed that the plaintiff is in occupation of the suit property. The plaintiff complained that the 1st defendant has been trespassing on the suit property with intention to fence the same. I am therefore satisfied that if allowed to proceed the plaintiff’s access on the suit property will be interfered with. 5. Regarding where the balance of convenience tilted, the plaintiff is the registered proprietor and in occupation of the suit property and therefore the balance of convenience tilts in favour of the plaintiff. 6. In the premises, I find and hold that the application dated 4th March 2026 is merited and the same is hereby allowed as follows; 7. **That a temporary injunction is hereby issued restraining the 1st Defendant/ Respondent either by himself, his agents, or any person whosoever acting under his instructions from taking possession, trespassing into, selling or dealing in land L.R Butsotso/ Indagalasia/787 in any manner whatsoever pending the hearing and determination of this suit.** **b) The costs of the application shall be borne by the 1st defendant.** 1. It is so ordered **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 22ND DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Mr. Odhiambo for the plaintiff Mr. Udoto for 1st defendant No appearance for 3rd defendant Court Assistant- Delphine