https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4196

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NANYUKI** **ELCLC NO. E002 OF 2026** **TAMINI KENYA LIMITED…………….……….………1ST PLAINTIFF** **THE SAFARI COLLECTION LTD……………………2ND PLAINTIFF** **VERSUS** **SOLIO RANCH LIMITED…………………………..…….DEFENDANT** **RULING** 1. Before me is a Notice of Motion Application dated 10.2.2026 filed contemporaneously with the suit. The plaintiffs seek orders of temporary injunction restraining the defendant/respondent, its servants, employees, caretakers, and agents from harassing, evicting, terminating or in any way interfering with the plaintiffs/applicants and their clients’ access (including rights of ingress and egress), quiet occupation, operation and enjoyment of the portion of the property known as L.R. No. 11571/10 where the renowned award winning luxury camp known as Solio Lodge is located. 2. The application is premised on grounds on the face of the application and on the Supporting Affidavit dated 10.2.2026 and a Further Affidavit dated 4.5.2026, both sworn by Riccardo Tosi, the chief development officer of the 2nd applicant. The applicants contend that vide a license agreement dated 10.1.2011, the respondent allowed the applicants to establish and operate the renowned award winning luxury Solio Lodge on a portion of parcel L.R. NO.11571/10 ( the property ) which is registered in the name of the respondent. 3. That pursuant to the aforementioned agreement, the applicants built the lodge with its ancillaries, now worth not less than sh. USD 200 000 which includes; 4. Horse stables 5. A boundary wall 6. Thermodynamic heaters 7. A sauna 8. A retail shop 9. A water pump system 10. Staff quarters 11. Water tanks 12. Diesel tanks 13. Cedar decks 14. Baths and basins 15. Large glass doors 16. Guide room 17. Garage and 18. An initial access road leading inter alia to the horse stables. 19. That in addition, the applicants have over a period of 15 years invested to the tune of not less than USD 1,500,000 in public relations and marketing of the Solio Lodge brand building a reputable world class brand attracting large tour operators both locally and internationally and international clientele for wildlife experiences within the Solio Game Reserve including bespoke rhino-viewing experiences. 1. The applicants aver that their business was valued at USD 9,000,000 as at 31.8.2025 2. That for the 15 years in which the applicants have operated their business, the respondents not only benefited, but also encouraged the applicants to continue with the investment, thereby creating a legitimate expectation of a secure tenure. 3. However, on 23.1.2026, the respondent issued the applicant with a 30 days notice to terminate the agreement. They consider the notice as wrong since the agreement is valid, binding and amounts to an enforceable contract, in that it contemplates the execution of a formal lease. 4. In opposition thereof, the respondent filed Grounds of Opposition as well as a Replying Affidavit sworn by its financial manager one Robert Maina on 17.4.2026. The respondent avers that the applicants occupied the suit premises from January 2011 to 28.2.2026 pursuant to a licence agreement dated 10.1.2011. That the said licence was a commercial arrangement and not a tenancy or a lease, of which the applicants were well aware of the temporary and revocable nature of the arrangement. 5. The respondent avers that the applicants committed breaches of the agreement by failing to pay proper conservation and bed night fees, and failing to make monthly accounts amongst other accusations. They aver that the doctrine of promissory estoppel does not apply and that the licence Agreement did not confer any proprietary rights over the suit premises in favour of the applicants, adding that any developments carried out on the suit premises were for the benefit of the applicants. **DETERMINATION** 1. I have considered all the rival arguments and submissions. The issue falling for determination is whether the injunctive orders sought by the applicants merited. 2. Under Order 40 Rule 1 of the Civil Procedure Rules, an order of temporary injunction may issue where the court is satisfied that there is a likelihood of the suit property being wasted or alienated before the suit is heard and determined. An application for an interlocutory/ temporary injunctive orders is weighed against the requisite essentials set out in the celebrated case of **Giella vs Cassman Brown (1973) EA 358** where it was held as follows: **“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”** 1. The Applicants in this case are expected to meet those three principles and surmount them sequentially. This was so stated by the Court of Appeal in **Nguruman Limited V Jan Bonde Nielsen & 2 Others [2014] eKLR** as follows; **“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to:-** **(a) Establish his case only at a *prima facie* level,** **(b) Demonstrate irreparable injury if a temporary injunction is not granted, and** **(c) Ally any doubts as to (b) by showing that the balance of convenience is in his favour.** **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] Vol. 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 is 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.” Emphasize added.** 1. The Court of Appeal in **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR** defined a prima facie case as follows; **“….So what is a prima facie case? I would say that in civil cases, it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” Emphasize added.** 1. More recently, the Court of Appeal in the case of **Nguruman Limited v Jan Bonde Nielsen & 2 others(supra)** while agreeing with the definition of a *prima facie* case in the **Mrao Case** (supra) went ahead to further expound as follows; **“We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.” Emphasize added.** 1. In the case of **Kenya National Union of Nurses v County Government of Mombasa & 2 others [2015] eKLR**, the court had this to say in regard to a prima-facie case; **“This court continues to hold the foregoing view that, the applicant for interlocutory injunction must not only show that he has an arguable case but must also prove that a legal right has been infringed or is about to be infringed on by the defendant” emphasize added.** 1. While in the case of **Naftali Ruthi Kinyua v Patrick Thuita Gachure & another [2015] eKLR**, the Court of Appeal stated that; **“It is well established that, in order to secure the injunctive relief sought, the appellant must first establish a prima facie case with a high chance of success. In this case, the appellant must show that he owned the suit property, or had a valid claim, which would be capable of defeating a third party claim in respect of the same property”** 1. This brings up the question, Do the applicants have a clear and unmistakable right capable of being protected by this court in so far as the suit premises ( or part of it ) is concerned?. Put it differently, what is the grundnorm in which the validity of the applicant’s claim is derived from? 2. The fall back is the licence agreement dated 10.1.2011 whose contents are rather short and scanty. I therefore find it expedient to extract the crucial part of the said agreement which reads as follows; **“** **SRL and TKL have agreed to enter into this agreement as more particularized below, to evidence the terms upon which TKL has occupied and operated and will occupy and operate an agreed portion of the property being that part on which the Solio Game Reserve is situated (“Leased Premises”)** **IT IS AGREED** 1. **LICENCE TO ENTER AND TO OPERATE A BUSINESS** **It is acknowledged that SRL has permitted and continues to permit TKL to enter onto the Leased Premises for the purposes of building the Lodge and all other matters ancillary to that and also for the operation of the Lodge and also rights of access over the property as a whole for the purposes of ingress and egress.** **It is further acknowledged that the parties are currently negotiating the terms of a lease of the Lodge, but that until such time as such lease is formalized TKL is authorized to operate the Lodge on the basis of the licence set out in this document.** 1. **GENERAL** **2.1 This agreement shall be general and construed in accordance with Kenyan law.** **2.2 No variation of this agreement will be valid or effective unless in writing and signed by TKL and SRL.”** 1. What is clear beyond peradventure is that the applicants were **AUTHORISED TO OPERATE THE LODGE ON THE BASIS OF A PERMITTION ANCHORED ON THE LICENCE** until a lease was formalized. No lease was ever formalized between the parties for more than a decade, thus the rights and interests which the applicants could claim were those derived from the permittion of the licence. The Agreement is clear that any other variation was to be in writing. As it were, no such other agreement was made by the parties to vary the license agreement. 2. This far, I am in agreement with the respondents’ submissions that all that the applicants had was the authority to occupy and use the premises, which authority was withdrawn via the notice of **23.1.2026.** 3. The applicants have certainly used the premises for a long time, they have apparently invested heavily on the suit premises, they were negotiating on a lease, they have employed many people, their business brand is globally acclaimed, they may have boosted economic growth of the county and country as well as tourism amongst other notable achievements. However, these achievements and milestones however strong, well meaning, great and globally aclaimed do not crystalize or mature to rights of proprietorship capable of being protected by this court. 4. On the same breadth, this court cannot delve into such issues as reconciliation of accounts on bed nights and conservation fees as the terms and conditions of the commercial arrangement between the protagonists is not spelt out in the licence agreement. 5. Further, it is noted that even the question of breach does not arise in the licence agreement as the protagonists simply acknowledged that they were negotiating on terms of a lease. The parties did not set out any terms relating to breach of the negotiations and or the licence agreement. 6. In the case of **Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR** , the Court of Appeal stated that; **“ We are alive to the hallowed legal maxim that it is not the business of courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved. See National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd [2002]2 EA 503. The primary task of the court is to construe the contract and any terms implied in it. See Megarry, J. in the case of Coco vs A. N. Clark (Engineers) Ltd . - [1969] RPC 41.”** 1. Similarly, it is not the place of this court to add or subtract the terms agreed upon by the parties including the reasons for not formalizing a lease. 2. It is worthy to note that the licence agreement did not specify the period of the licence. What more, even the portion of the land the applicants are claiming was not formally defined in the said agreement. In their pleadings, the applicants refer to a portion of the premises known as **L.R.11571/10** where they occupy. While in the further affidavit at paragraph 6, they accuse the respondents of failing to progress the subdivision and change of user for the lease. 3. This far, I find that the applicants have not established a clear and unmistakable legal right to the suit premises in the nature of Promissory Estopel. In essence, the applicants have failed to surmount the 1st hurdle of establishing a prima facie case. Thus the other steps relating to irreparable harm and the balance of convenience need not be interrogated by this court. In the end, I find that the application dated 10.1.2026 is found to be unmerited, the same is hereby dismissed with costs to the respondent. **DATED, SIGNED AND DELIVERED AT NANYUKI THIS 2nd DAY OF JULY, 2026 THROUGH MICROSOFT TEAMS.** **LUCY N. MBUGUA** **JUDGE** **In the presence of:** **Nancy Mwangi – C/A** **M/s Rutvi Shah for plaintiff** **Ochieng for defendant**