https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4305

Kapoya v Kasio & another (Environment and Land Appeal E027 of 2023) [2026] KEELC 4305 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4305 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Appeal E027 of 2023 J Omange, J July 9, 2026 Between Simon Kapoya & 15 others Appellant and Joseph Kasio 1st Respondent District Land Registrar, Kajiado & 4 others 2nd Respondent Ruling 1.The matter comes up for determination of the Respondents/ Applicants application dated 15th October 2024 in which they seek the following orders;i.Spentii.Spentiii.That this Honourable Court be pleased to grant a temporary injunction restraining the Respondents by themselves, their agents, servants, employees and/or any other person(s) whomsoever acting on their behalf from, alienating, interfering, transferring and/or any way dealing with all that parcel of land known as Title Kajiado/Kitengela/23 pending the hearing and determination of the Appeal.iv.That a declaration that the 2nd Respondent is the rightful owner and entitled to exclusive quiet and peaceful enjoyment of all that parcel of land known as Title Kajiado/Kitengela/23 pending hearing and determination of the instant Appeal.v.That the Appellant herein be directed to abate the nuisance by removing any structures, fences and roads that they may have erected or are being erected on the suit property at their own costs. 2.The application is premised on the fact that following a boundary dispute ruling by the Land Registrar on 13th July 2023 the Appellant who had filed the Appeal herein to challenge the Ruling went ahead to sell, create roads and erected a fence on the 2nd Respondents property, The Applicant avers that the actions of the Respondent have interfered with his quiet possession of Kajiado/ Kitengela / 23. 3.In the affidavit in support of the application the Respondent avers that he was allocated the said parcel in the early 1970s and has been in possession of the same until the said property was subdivided into four parcels Kajiado/Kitangela/4057, 4058, 4059 and 4060 sometime in 1991 after which the boundaries thereon were confirmed as valid. He claims that the Appellant who purchased a neighbouring parcel, then moved the beacons resulting to the Respondent filing a boundary dispute with the Land Registrar which was determined and a decision issued on 13th July 2023. Following this Ruling, the Appellant then filed the instant Appeal and the Application dated 11th March 2024 seeking stay orders against the implementation of the said Ruling. 4.The Appellant has however defied the Land Registrar’s Ruling and despite filing of this Appeal, has been interfering with the Respondent’s property by erecting fences as well as disposing of part of his property, matters which have been reported to Kiserian and Isinya Police Stations. The Respondent thus seeks grant of the sought orders to protect his proprietary rights. 5.The Appellant through the Affidavit sworn by Simon Mutunkei Kapoya and Ruth Wanjiru Kapoya oppose the Application on grounds that, the property Kajiado/Kitengela/1992 shared a common boundary with the 1st Respondent’s parcel marked by beacon K.22. They claim that there had been no dispute regarding the said boundary until after the demise of Moses Kapoya Ole Mosiro (their father and husband respectively), and that it was the 1st Respondent who had purported to alter the placement of the said beacon. 6.This application was canvassed by way of written submissions which have been duly considered. 7.The sole issue for determination is whether the 1st Respondent/Applicant is entitled to grant of the temporary injunction sought. 8.Order 40 Rule 1 of the Civil Procedure Rules sets out the law on issuance of injunctions thus;1.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 execution of 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. 9.The principles governing the grant of interlocutory injunctions were well settled in the celebrated case of Giella v Cassman Brown & Co. Ltd [1973] EA 358 and reiterated by the Court of Appeal in Nguruman Ltd v Nielsen & 2 others [2014] KECA 606 (KLR). 10.It is not disputed that the 1st Respondent is the registered owner of Kajiado/Kitengela/23 which was subsequently subdivided into parcels Kajiado/Kitengela/4057, 4058, 4059 and 4060. It is equally common ground that a boundary dispute arose between the Appellants and the Respondents which was referred to the Land Registrar who rendered a decision on 13th July 2023 which is the subject of this Appeal lodged by the Appellants who are the Respondents in this Application. 11.The Applicant argues that despite pendency of the Appeal, the Appellant has continued to interfere with the disputed property by erecting fences and disposing of portions thereof and has reported tis interference to the police. This is disputed by the Appellants/ Respondent who argue that the Applicant had illegally altered the boundary between the parcels of land. 12.There is an appeal that is pending before this court. This appeal might be rendered moot if the parties continue to deal as they wish and carry out transfers of the property. I therefore find that it is essential that there be no transfer of the property or placement of any new beacons before the appeal is heard and determined. 13.On the question of occupation each party should retain occupation of the land they currently occupy and should not take any steps to occupy any new portion. 14.The Applicant had also sought other mandatory orders which the court will not grant at this stage. 15.The application is thus partly allowed in the following terms;a.A temporary injunction is hereby issued restraining the Appellants, their servants, agents, employees and/or any person acting under their authority from selling, transferring, Kajiado/Kitengela/23 and/or its resultant subdivisions pending the hearing and determination of this Appeal.b.On the question of occupation each party should retain occupation of the land they currently occupy and should not take any steps to occupy any new portion. There should be no placement or removal of any beacons until the appeal is determined. It is also clarified that no fencing should take place on the disputed portions.c.The appeal is to be heard expeditiouslyd.Costs shall abide the outcome of the Appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 9TH DAY OF JULY 2026.JUDY OMANGEJUDGE.In the presence of:Mr. Gathaara for the Appellants.Peter – Court Assistant.