https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/113

Sulaiman v Sigilai (Environment and Land Case E190 of 2025) [2026] KEMC 113 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEMC 113 (KLR) Republic of Kenya In the Nakuru Law Courts Environment and Land Case E190 of 2025 PA Ndege, SPM May 28, 2026 Between Brian Korir Sulaiman Plaintiff and Patrick K Sigilai Defendant Ruling 1.Before this Court is the Notice of Motion dated on the 29th of August 2025 brought under the provisions of Order 40, Rules 1, 2 and 3; and Order 51, Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 40 of the Constitution of Kenya. The Plaintiff/Applicant seeks the following orders:-i.That pending the hearing and determination of this suit, the Defendant/ Respondent, whether by himself, his servants, agents, employees and/or persons claiming under him, be restrained by way of a temporary injunction from trespassing upon, remaining on, cultivating, demolishing, constructing, alienating, or in any way interfering with the Plaintiff/ Applicant’s quiet possession and enjoyment of Land Parcel No. Solai/ndungiri Block 1/274 (kitur).ii.That the Officer Commanding Station (OCS), Bahati Police Station, be and is hereby directed to supervise and ensure compliance with the orders of this Honorable Court, including the enforcement of the injunctive reliefs granted herein, and to maintain law and order during and after the enforcement process.iii.That this Honorable be pleased to make such further or other orders as may be just and expedient in the circumstances of this case.iv.That the costs of this Application be provided for. 2.This application is premised on the grounds that the Plaintiff/Applicant is the registered proprietor of the Suit property of Land Parcel No. Solai/ndungiri Block 1/274 (kitur) and has occupied the same for a considerable duration. The Plaintiff/Applicant avers that the Defendant/Respondent unlawfully removed the existing boundary fence, encroached to approximately 1(one) acre of the suit property and threatened to erect permanent structures on the disputed portion of land. The Plaintiff/Applicant further states that that investigations conducted by the Land Registry confirmed that the suit property belongs to him and unless the orders sought are granted, he stands to suffer irreparable loss since the land in dispute constitutes his source of livelihood. 3.This application is opposed by the Defendant/Respondent who contends that this is a straightforward boundary dispute of a registered land where the boundaries have not been fixed. That Section 18 of the Land Registration Act requires that such dispute as the present one be dealt with by the the Land Registrar. The Defendant/Respondent further contends that the alleged survey was conducted unlawfully and contrary to statute and that the alleged surveyor lacked authority from the office of the Land Registrar. The Defendant/Respondent additionally argues that the claim is statute barred and amounts to a tortious claim of trespass brought outside the prescribed limitation period. 4.I have carefully considered the application, affidavits, annextures and submissions by both parties. The principles governing interlocutory injunctions are now well settled. In Giella vs Cassman Brown [1973] EA 358, the court held that for this kind of application, an applicant must establish a prima facie case with a probability of success, demonstrate that irreparable damage or harm which cannot be adequately compensated by an award of damages would arise without the injunction; and where the Court is in doubt, the matter should be determined on a balance of convenience. 5.On whether the applicant has established a prima facie case, the Court is guided by the decision in Mrao vs First American Bank of Kenya ltd & 2 others [2003] KLR 125, where a prima facie case was defined as a case that on the material presented demonstrates an apparent infringement of a right requiring rebuttal from the opposite party. In the present case, the Applicant has produced a title deed evidencing registration as proprietor of the property. Under Sections 24, 25 and 26 of the Land Registration Act, registration confers upon a proprietor absolute ownership together with all rights and privileges appurtenant thereto unless fraud, illegality or procedural impropriety is established. The applicant has further produced evidence alleging encroachment, removal of fence boundary and threatened construction on the disputed land. 6.Although the Respondent disputes the legality of the survey allegedly conducted on the disputed property, this Court is of the view that the authenticity and legality of the said survey are matters requiring substantive evidentiary interrogation at the full hearing and cannot conclusively be determined at the interlocutory stage. At this stage, the Court is not required to make definitive findings on ownership but merely to determine whether the Applicant has demonstrated an arguable right deserving protection. 7.The Respondent has further challenged the jurisdiction of this court on grounds that the dispute concerns boundary dispute falling under Section18 of the Land Registration Act. This Court has considered the principle established in Azuri Limited vs Pink Properties Limited [2018] KECA 392 KLR, where the Court emphasized that boundary disputes ought first to be addressed by the Land Registrar. However, the present dispute extends beyond a mere determination of boundaries. The applicant alleges trespass, interference with quiet possession, removal of fence and threatened erection of permanent structures. Consequently, this Court finds that the dispute substantially concerns protection of proprietary rights and allegations of continuing trespass falling squarely within the jurisdiction of this court. 8.On the issue of limitation, the Respondent contends that the applicant’s claim is statute barred. However, this Court notes that the Applicant alleges continued encroachment, or threats thereof, of the disputed portion of land by the Respondent. In Park Towers Limited vs John Mithamo Njika & 7 others [2014] KEHC 7455, the Court held that trespass constitutes a continuing tort for as long as the unlawful occupation or interference persists. 9.On irreparable harm, the Applicant has stated that the suit property constitutes his source of livelihood and that the respondent intends to erect permanent fixtures thereon. This Court is guided by the decision in Nguruman Ltd vs. Jan Bonde Nielson A.A 77/2012, where the Court held that irreparable harm refers to injury incapable of adequate compensation through damages. In the Court’s view, continued interference with the property suit and the threatened erection of permanent fixtures may permanently alter the character and condition of the land before the substantive issues are heard and determined. Such injury may not adequately be compensated by an award of damages. 10.Finally, on the balance of convenience, this Court finds that the same tilts in favour of preserving the suit property pending hearing and determination of the suit. Preservation of the status quo would occasion less prejudice than allowing continued developments on the disputed property before ownership rights are conclusively determined. 11.Accordingly, the Notice of motion dated on the 29th of August 2025 is hereby allowed in the following terms:a.A temporary injunction be hereby issued restraining the respondent whether by himself, servants, agents, employees or any other persons acting under his authority from trespassing upon, alienating, interfering with or in any manner whatsoever dealing with the suit property pending hearing and determination of the suit.b.Cost of the application shall abide the outcome of the main suit.It is so ordered. DATED, SIGNED AND DELIVERED AT NAKURU VIRTUAL COURT THIS.....28TH ........... DAY OF ..MAY...... 2026ALOYCE PETER -NDEGESENIOR PRINCIPAL MAGISTRATEIn the presence of;Plaintiff’s Counsel: CheruiyotDefendant’s Counsel: KibetPlaintiff/ Applicant: n/aDefendant/ Respondent: n/aKibet: The orders need some clarifications. My client is already on the parcel and crops are there. Let it be understood as the preservation of status quo.Cheruiyot: The defendant entry into the parcel violated the interim orders.Kibet: There is no eviction order herein.CT: There is no eviction order herein. Any crop grown on the parcel by the defendant be taken care of by the defendant upon reasonable non-violent access, till the end of the crop harvesting season.Cheruiyot: We can have a mention date for pre-trials.Kibet: I do agree. I equally have a counterclaim.