https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3623

Wambugu (Suing as the legal representative to the Estate of John Wambugu Macharia - Deceased) v Macharia (Sued as the legal representative to the Estate of Peter Macharia Wambug - Deceased) & 3 others (Environment and Land Case E017 of 2024) [2026] KEELC 3623 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3623 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Case E017 of 2024 EK Makori, J June 4, 2026 Between Joseph Gichuki Wambugu (Suing As The Legal Representative To The Estate Of John Wambugu Macharia - Deceased) Plaintiff and Mary Wanjiru Macharia (Sued As The Legal Representative To The Estate Of Peter Macharia Wambug - Deceased) 1st Defendant Topshine Limited 2nd Defendant Kingdom Bank Limited (Formerly Jamii Bora Bank Ltd) 3rd Defendant Land Registrar-Nyeri County 4th Defendant Ruling 1.The Plaintiff herein filed an application under a Notice of Motion dated August 19, 2024, seeking the following orders:a.Spent.b.Spent.c.The honorable court be pleased to issue an order for a temporary injunction restraining the 1st - 3rd Defendants, jointly and/or severally, whether by themselves or through their employees, servants, and/or agents, from advertising, auctioning, selling, alienating, or in any other manner disposing of the suit property pending the hearing and determination of this suit.d.Spent.e.The honorable court be pleased to issue an inhibitory order to be registered against the suit property, restraining the registration of any dealings on the suit property pending the hearing and determination of this suit.f.The costs of this Application be borne by the 1st-3rd Defendant jointly and/or severally. 2.The Application is supported by the affidavit of the Plaintiff/Applicant, who deposed that he is the legal representative of the estate of the deceased plaintiff, who was and remains the registered proprietor of all that property known as Tetu/Unjiru/1303. 3.The deceased Plaintiff sold the suit property to Jeremano Gikonyo Ndirangu (hereinafter, the purchaser) on November 16, 2001. Thereafter, the deceased Plaintiff handed over the original title deed, the transfer forms, and the land control board consent, and acknowledged receipt of the purchase price by executing an acknowledgment. 4.However, Peter Macharia Wambugu (the deceased defendant) and a son of the deceased Plaintiff, believing himself to be the rightful heir, contested the sale and demanded a refund, which the purchaser refused, culminating in a suit by the deceased defendant. The purchaser was accused of having forged the land board consent related to the suit property and was in fact charged in Nyeri CMCR 642 of 2013, but was later acquitted. 5.According to the Deponent, on or about 2012, when their father the Deceased Plaintiff was of an advanced age and his eyesight was failing him to the extent of him not being able to sign documents by hand, the deceased defendant exploiting the deceased plaintiff's poor eyesight, fraudulently forged the deceased plaintiff's signature, declared the suit property's title as lost and proceeded to procure one in the name of the deceased plaintiff. He stated that the signature thereon was not the deceased’s and could not have been, as the deceased used to sign documents with his thumbprint due to poor eyesight. 6.Upon receiving the duplicate title deed, the Deponent accused the deceased defendant of causing the registration of a transfer in his favor, of transferring the suit property to him, and of commencing construction of apartments on the suit property. 7.This prompted the purchaser to file Nyeri ELC 161 of 2013 (later Nyeri CM ELC 18 of 2018) against the deceased Plaintiff and defendant, resulting in orders temporarily halting construction on the suit property by the deceased defendant. 8.During the pendency of the suit, both the deceased Plaintiff and the deceased Defendant passed away, and the 1st Defendant and the Deponent were appointed by the court to replace the deceased Plaintiff and the deceased Defendant, respectively. 9.On the 1st of November, 2019, while acting on behalf of the estate and present at the sale of the property to the purchaser, the Deponent entered into a mediated settlement agreement under which it was agreed that he would refund the purchaser Kshs. 1,450,000, inclusive of interest, and that the purchaser would return the original title to him to hold on behalf of the estate. However, due to another of their own agreements, this agreement was rescinded, and the suit property reverted to the estate of the deceased plaintiff. The Plaintiff/Applicant later retrieved the original title from the chambers of Muthoga Gaturu on 27th of June 2024, where they executed a release agreement. 10.Following the fraudulent replacement of the title deed and the transfer of the property to the deceased defendant, the deceased defendant encumbered the suit property to the third defendant on or about 03 June 2015 and 05 August 2015, claiming a fraudulently obtained title. The 3rd defendant was subsequently granted Kshs. 66,100,000 and Kshs. 19,000,000, respectively. The deceased plaintiff passed away in September 2015, several months after the issuance of these facilities. 11.After the death of the 1st Defendant, the 2nd Defendant obtained additional loan facilities secured by the suit property, constituting intermeddling. 12.Upon the deceased defendant's death, M/S Madison Insurance Co. Ltd cleared the initial and further charges registered on 03.06.2015 and 05.08.2015 pursuant to the mandatory insurance policy taken out by the deceased defendant. 13.However, despite there being no outstanding loan balance and the illegality of the charge, the 3rd Defendant has advertised the suit property for sale. 14.The Deponent further deposed that the intended auction, the advertisement, the initial and further charge are all illegal and of no effect since they are based on an illegally acquired title deed. 15.The Deponent made his case that he stands to suffer irreparable harm if the property is sold at auction and that the balance of convenience favors granting the orders sought to preserve the subject matter. 16.Jeremano Gikonyo Ndirangu swore another supporting affidavit in support of the application, deposing that he was the purchaser of the suit property in 2001 and continued to enjoy quiet possession until August 2013, when the deceased defendant began depositing construction materials thereon. 17.The Deceased defendant had him charged in Nyeri CMCR 642 of 2013 with allegedly forging a land control board consent, but he was later acquitted since the prosecution did not meet the threshold. 18.In the same year, he filed Nyeri HC ELC 161 of 2013, in which he sued the deceased plaintiff and the deceased defendant. He gave the original title deed to his advocates, Ms. Muthoga Gaturu & Co., Advocates, and obtained injunctive orders prohibiting any deposit of materials or construction on the suit property. However, the deceased defendant did not stop construction and proceeded to finalize the apartments now known as Top Shine apartments. 19.Upon conducting a search, he found that the deceased defendant had the title deed in his possession, declared it lost, obtained a replacement title, transferred the property to himself, and then took a loan of KShs. 85,100,000/= in 2015. The deceased plaintiff and defendant died while the suit was ongoing. His lawyers applied to replace the plaintiff and the 1st defendant, and the court granted the application. 20.The Plaintiff herein, who was a representative of the deceased Plaintiff's estate, spoke with the Deponent and negotiated and agreed that the Deponent would drop the case, return the title to the Plaintiff, and, in exchange, receive Kshs. 1,450,000, which he received. At that point, they agreed to rescind the agreement, and the Plaintiff signed a copy, which was left with him on or about August 2019. 21.The Deponent’s understanding at the time was that the property would revert to the estate of the deceased plaintiff pursuant to a rescission agreement they executed. He handed over the original title deed after picking it up from his lawyer’s office on June 27, 2024. 22.Therefore, he states that the deceased defendant’s allegation that the title was lost makes him know that he acquired the duplicate title fraudulently, because he knew all along that the Deponent had the original title deed and had even threatened to have him jailed if he didn’t accept a refund and return the title deed. The 1st Defendant/Respondent’s replying affidavit 23.The 1st Respondent swore an affidavit in response to and opposition to the instant application on November 21, 2024. She deposed that, contrary to what the Plaintiff and the said Jeremano Gikonyo state, the suit land was lawfully transferred to her late husband by his late father. 24.That, as shown in the proceedings in Nyeri Criminal Case Number 642 of 2013, R v Jeremano Gikonyo Ndirangu, the fact that the late John Wambugu Macharia replaced the original title deed after the said Jeremano Gikonyo failed to return it to him has long been known to the Plaintiff, and therefore she denied that Deceased 1st Defendant took advantage of his late father and obtained the title deed for the suit land fraudulently. 25.Further, the 1st Respondent deposed that the investigations leading to the charging of Jeremano Gikonyo in the said criminal case disclosed that the letter of consent was not genuine. 26.Further, the 1st Respondent deposes that by the time the Plaintiff and Jeremano Gikonyo entered into the mediated settlement agreement and the rescission agreement, the suit land was already charged to the 3rd Defendant, a fact that was within the Plaintiff's knowledge. 27.That the title deed for the suit having been replaced during the lifetime of the late John Wambugu Macharia, the alleged title deed held by Ms. Muthoga Gaturu & Co. Advocates ceased to have any value, and by the time her late husband and her late father-in-law died, the suit property was registered in her late husband's name, a fact that remains to date. 28.She denied having come across any judgment in Nyeri MC ELC Case Number 18 of 2018, in which the title issued to her late husband was canceled. 29.As reflected on the face of the mediation settlement and in annexure “JGN94” of the Plaintiff's supporting affidavit, the mediation proceedings were between her late father-in-law and Jeremano Gikonyo Ndirangu. 30.It is surprising to her that her late father-in-law is alleged to have signed the settlement agreement, yet the agreement was signed many years after his death. 31.She further deposed that the estate of her late husband cannot be bound by a mediation settlement agreement in which he was not involved, and that the agreement is a nullity. 32.She denied taking a further loan secured by the suit property and put the plaintiff to strict proof thereof. 33.It is the 1st Respondent’s case that the Plaintiff has no basis for filing the application herein and for the entire suit, as he has no proprietary claim over the suit land, and that the same be dismissed with costs. The 3rd Defendant/Respondent’s replying affidavit 34.Jackson Kimathi, the Head of Legal Services at Kingdom Bank Limited, the 3rd Defendant herein, also swore an affidavit in response to the instant application on December 9, 2024. 35.He deposed that the Plaintiff’s own evidence adduced in support of the present Application contradicts his aforesaid position and casts serious aspersions on its veracity. He highlighted the proceedings and judgment in Nyeri M.C. Criminal Case No. 642 of 2013, annexed as exhibit “JGW-5”, which disclose that the Deceased Plaintiff testified that he reported the loss of the title deed to the Suit Property to the land registry in 2012, and that the late Deceased 1st Defendant testified that he assisted the latter by causing the loss of title to be gazetted. Further, the said Court, in its Judgment, held that the late John Wambugu Macharia had actually repudiated/rescinded the sale agreement for the Suit Property with Jeremano Gikonyo Ndirangu in 2001. 36.It was further highlighted that the mediation settlement agreement and decree in Nyeri M.C. E& L. Case No. 18 of 2018, annexed as exhibit “JGW-9(a-b)”, disclose that the mediation did not involve the 1st Defendant herein and/or the estate of the late Peter Macharia Wambugu, nor did the resulting agreement bind them to commit or refrain from any action. 37.The 3rd Defendant/Respondent asserts that it is vested with the contractual rights of a lender under the various lending contracts among itself, the late Peter Macharia Wambugu, and the 2nd Defendant as follows: -a.Mortgage Construction Loan Facility and Asset Financing Loan Facility in the aggregate amount of Kenya Shillings Sixty-Six Million One Hundred (Kshs. 66,100,000/-) only granted to the late Peter Macharia Wambugu on April 29, 2015;b.Term Loan Facility in the amount of Kenya Shillings Nineteen Million (Kshs. 19,000,000/-) granted only to the 2nd Defendant on 13th July 2015;c.Mortgage Loan Facility in the sum of Kenya Shillings Thirty-Eight Million Five Hundred Thousand (Kshs. 38,500,000/-) only granted to the 2nd Defendant on 11th May 2016 (which wholly repaid its aforesaid Term Loan Facility and the aforesaid Asset Financing Facility granted to the late Peter Macharia Wambugu);d.Top-Up Loan Facility in the amount of Kenya Shillings Six Million Nine Hundred and Thirty-two Thousand One Hundred and Sixty (Kshs. 6,932,160/-) was granted only to the 2nd Defendant on 20th March 2017. 38.That in the aforesaid lending contracts, it was agreed that repayment would be secured, inter alia, by a legal charge instrument and a further legal charge instrument to be registered against the title to the Suit Property. The same was created by the late 1st Defendant, Peter Macharia Wambugu (Deceased), in favor of the 3rd Defendant bank. 39.Further, that from the aforesaid lending contracts and charge instruments, no security was created by the bank against the title to the Suit Property after the death of the late Peter Macharia Wambugu, as alleged by the Plaintiff in this suit. 40.The 3rd Defendant also asserted that only the Mortgage Construction Loan Facility granted to the late Peter Macharia Wambugu was covered by mortgage protection insurance, and that coverage did not extend to the other facilities granted to the 2nd Defendant. To that extent, the insurance policy payments received by the bank were accordingly limited and did not extinguish the indebtedness owed to it by the 2nd Defendant company. 41.They confirm that, at present, the 3rd Defendant is not exercising the statutory power of sale over the Suit Property, contrary to the Plaintiff’s allegations. From the newspaper advertisement annexed to the Plaintiff’s Application as exhibit “JGW-13,” the exercise of the statutory power of sale he was referring to was conducted in the year 2021, which was three (3) years ago. 42.In exercise of its statutory powers, the 3rd Defendant appointed a receiver over the Suit Property and is therefore entitled to the income therefrom. 43.Thus, it is the 3rd Defendant case that there is no legal or justiciable basis for the orders of injunction and/or inhibition sought and prayed that the present Application be dismissed with costs. 44.The 3rd Defendant also swore a supplementary affidavit on the 26th of November 2025 for the purpose of producing the substantive pleadings in MC ELC No. 18 of 2018 (formerly HC ELC No. 161 of 2013), Jeremano Gikonyo Ndirangu v John Wambugu Macharia & Peter Macharia Wambugu. Applicant’s written submissions 45.Counsel for the Plaintiff/Applicant submitted that the 2nd Defendant (a company belonging to the 1st Defendant) was registered as the proprietor of the suit property through fraudulent means. That the transfer documents were forged, and the signature appearing on the transfer does not belong to the deceased Plaintiff, who, at the time, executed documents using his thumbprint due to visual impairment. 46.It is therefore their submission that these acts constitute clear interference with the Applicant’s legal rights in its rightful property, thereby demonstrating a prima facie infringement of a legal right, according to the authority of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR. 47.Further, the 3rd Respondent advanced a loan based on the fraudulent title obtained by the 2nd Defendant. An invalid title cannot confer any interest, as held in Macfoy v United Africa Co. Ltd (1961), and a purported mortgage or loan facility is void and unenforceable. 48.The Applicant’s case is that the facts show a strong likelihood of success at trial. The fraudulent actions of the 2nd Respondent, including the forgery of transfer documents, and the 3rd Respondent’s reliance on a legally invalid title clearly infringe the estate’s rights. 49.On irreparable injury, Counsel relied on the definition in the authority of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR and submitted that the 3rd Respondent has admitted exercising its power of sale over the suit property and has further advertised the property in a newspaper of nationwide circulation. This is not a mere threat or possibility—the Respondent has taken concrete, irreversible steps to alienate the property, satisfying the threshold for irreparable injury. 50.Counsel for the Applicant relied on the authority in Bryan Chebii Kipkoech v Barnabas Tuitoek Bargoria & another [2019] eKLR to set out what must be proved to tilt the balance of convenience in favor of the Applicant. Their submission is that the estate of the deceased Plaintiff faces irreversible harm if the 3rd Respondent proceeds with the sale of the suit property. The property is ancestral, and its alienation would permanently deprive the estate of possession, control, and rental income, which cannot be compensated by damages. On the other hand, if a temporary injunction is granted and the 3rd Respondent is restrained from completing the sale, the inconvenience to the Respondent is minimal. Therefore, their case is that the balance of inconvenience clearly tilts in favor of the Applicant, and they prayed that the injunction prayed for be granted. 51.In addition to the injunction, the Applicant seeks an order directing the 4th Respondent, the Land Registrar for Nyeri County, to register an inhibition against the title of the suit property. Such an inhibition will prevent any further fraudulent or unauthorized transactions in the Land Registry, ensuring that no party can effect a transfer, mortgage, or charge of the property while the dispute remains unresolved. The 1st and 2nd Respondents’ written submissions 52.Counsel for the 1st and 2nd Respondents submitted that, in the case at hand, the Applicant relies on court proceedings in Criminal Case No. 642 of 2013, R v Jeremano Gikonyo Ndirangu, which, on careful reading, show a position fundamentally inconsistent with the allegation of fraud. According to those proceedings and the judgment in the case, the deceased plaintiff, John Wambugu Macharia, testified that he had earlier released the original title deed to the suit property herein to Jeremano Gikonyo Ndirangu, who later informed him that he had lost it, and that the deceased plaintiff then caused the same to be gazetted for the purpose of replacing the lost title. Additionally, those proceedings further show that the deceased plaintiff acknowledged that no Land Control Board consent had been obtained in respect of any intended transfer to Jeremano Gikonyo, owing to the loss of the title deed. They therefore deny the allegation that the deceased plaintiff procured another duplicate title and fraudulently transferred the same to himself. 53.Their submission is that, as in the case of Mrao v First American Bank of Kenya Limited & 2 Others above, a prima facie case requires evidence that, on the face of it, there exists a right, an apparent infringement of that right, and a probability of success at trial. In the case at hand, they submit that the Applicant has not demonstrated the existence of the deceased plaintiff's estate right over the suit property capable of being infringed, and therefore has not established a prima facie case. 54.They reiterate that the late John Wambugu Macharia willfully and lawfully transferred the suit property herein to Peter Macharia Wambugu. They submit that the estate of the late John Wambugu Macharia has no right of claim to the suit property. In the circumstances, they submit that the Applicant will not suffer any irreparable harm that cannot be adequately remedied by damages. 55.Relying on the authority in the case of Paul Gitonga Wanjau vs Gathuthi Tea Factory Company Ltd & 2 Others (2016) eKLR, they submit that, in the case at hand, the balance of convenience tilts in favor of the 1st and 2nd Respondents herein, given that, from the evidence adduced by the Applicant, the deceased plaintiff lawfully transferred the suit property to the deceased defendant, Peter Macharia Wambugu. Therefore, the Applicant has failed to establish a proprietary interest of the deceased's estate in the suit property. 56.Finally, they submit that the Plaintiff/Applicant has not disclosed any legitimate interest in the suit property under the estate of John Wambugu Macharia, nor has the Plaintiff/Applicant shown that any alienation of the suit property would be to their detriment. Therefore, their prayer for an order that an inhibition be registered against the title to the suit property is unmerited and should be dismissed, and they rely on the authority of M'murithi & another v Kigia (Environment & Land Case E014 of 2022) [2023] KEELC 17760 (KLR). The 3rd Defendant/Respondent’s written submissions 57.Counsel for the 3rd Respondent quoted the decision of Bosire JA in the case of Mrao Limited v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, submitting that the Plaintiff lacks any legal right to the suit property and, as such, has failed to establish a prima facie case required for the award of the order of temporary injunction sought in the present Application. 58.Referring to the record in MC CR No. 642 of 2013, Republic v. Jeremano Gikonyo Ndirangu, they submit that the late John Wambugu Macharia confirmed that the sale of the Suit Property to Jeremano Gikonyo Ndirangu was repudiated in 2001, that he thereafter retained ownership of the Suit Property, and that he later replaced the lost title deed. 59.The second substantive element misrepresented by the Plaintiff concerns the civil proceedings in MC ELC No. 18 of 2018 (formerly HC ELC No. 161 of 2013), Jeremano Gikonyo Ndirangu v John Wambugu Macharia & Peter Macharia Wambugu. They accuse the Plaintiff of misrepresenting that, under the mediation settlement agreement, the Suit Property reverted to the estate of the late John Wambugu, citing the deceased’s witness statement, in which he stated that he transferred the suit land to his son, the deceased 1st Defendant. 60.With respect to the Rescission Agreement, it is submitted that it indicates that it was entered into by the Plaintiff herein as the legal representative of the estate of the late John Wambugu Macharia. However, at that time, no grant of representation over the estate of the deceased had been made by any court of law to the Plaintiff or any other person. Consequently, it is submitted that the Plaintiff lacked the legal capacity to enter into any contract on behalf of the estate of the late John Wambugu Macharia, and that the Rescission Agreement dated 5th November 2019 was not and is not a legally binding document. 61.Their submission is that Plaintiff has misrepresented to this Court that the estate of the late John Wambugu Macharia has ownership rights over the Suit Property. Quoting the equitable maxim, “He who comes to Equity must come with clean hands,” they submit that the Court is enjoined to decline to issue equitable relief, even without further consideration of the merits of the application, and rely on the authority of Shirinkhanu Amirali Sharrif v Alibhai Sharriff & 7 others [2005] eKLR. 62.Regarding irreparable harm, Counsel referred to the newspaper advertisement at page 112 of the annexure to the Supporting Affidavit of the Plaintiff’s Application, which discloses an auction advertised on 29th November 2021, four (4) years ago, scheduled for 8th December 2021, a date that also passed almost four (4) years ago to the date hereof. They submit that they have no intention to auction the suit property but have appointed a receiver over the same to collect the income thereof. It is therefore their submission that the Plaintiff does not stand to suffer any harm or loss and is thus not entitled to the award of an order of injunction, and that the balance of convenience tilts in their favor. Analysis and Determination 63.The Plaintiff/Applicant herein seeks an injunction restraining the 1st through 3rd Defendants jointly from advertising, auctioning, selling, alienating, or in any other manner disposing of the suit property pending the hearing and determination of this suit, as well as an inhibitory order. 64.Thus, I will proceed to list the issues for determination as prayed for below:1.Should the Court issue an injunction restraining the 1st through 3rd Defendants jointly from advertising, auctioning, selling, alienating, or otherwise disposing of the suit property?2.Should the Court grant an inhibitory order to be registered against the suit property, restraining the registration of any dealings with the suit property pending the hearing and determination of this suit?1)Should the Court issue an injunction restraining the 1st -3rd Defendants jointly from advertising, auctioning, selling, alienating, or in any other way disposing of the suit property? 65.Section 63 of the Civil Procedure Act provides for the court's power to grant temporary injunctions and states that:“In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold.” 66.Order 40 Rule 1 of the Civil Procedure Rules provides for cases in which temporary injunctions may be granted and states as follows:“Where in any suit it is proved by affidavit or otherwise—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……..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.” 67.Further, the conditions for considering the grant of an injunction are now well settled in the case of Giella vs Cassman Brown & Company Limited (1973) E. A 358, where the court set out the conditions a party must satisfy for the court to grant an interlocutory injunction:“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.” 68.Have the Applicants established a prima facie case with a probability of success? A prima facie case must show that the Applicant has a clear and unmistakable right that needs protection, as held by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR, which was cited by the parties herein:“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 to call for an explanation or rebuttal from the latter.” 69.Similarly, in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal stated:“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.” 70.The Applicant’s case is that the deceased 1st Defendant, the late Peter Macharia Wambugu, fraudulently transferred the suit property, L.R Tetu/Unjiru/1303, to himself. The deceased Plaintiff sold the suit property to one Jeremano Gikonyo Ndirangu, to whom the deceased Plaintiff handed over the original title deed, the transfer forms, and the land control board consent, and acknowledged receipt of the purchase price by executing an acknowledgment. 71.The Applicant states that Peter Macharia Wambugu (the deceased defendant) and a son of the deceased Plaintiff contested the sale, demanding a refund, which the purchaser refused, culminating in a suit instigated by the deceased defendant. In that suit, the purchaser was accused of having forged the land board consent related to the suit property and was, in fact, charged in Nyeri CMCR 642 of 2013, but was later acquitted. 72.However, the Respondents state that this was not the case and that in Criminal Case No. 642 of 2013, R v Jeremano Gikonyo Ndirangu, the deceased plaintiff, John Wambugu Macharia, testified that he had earlier reported the original title deed for the suit property as lost and that he then caused the same to be gazetted for the purpose of replacing the lost title. Further, he testified that he had rescinded his agreement for sale with Jeremano Gikonyo Ndirangu and transferred the suit property to his late son, the 1st Defendant’s estate herein named. 73.A review of the proceedings in Criminal Case No. 642 of 2013-R v. Jeremano Gikonyo Ndirangu shows that during the hearing, the late John Wambugu Macharia (Deceased), whose estate the Plaintiff/Applicant represents, testified that he had set out to sell the suit property to the accused, Jeremano Gikonyo, but that they never obtained Land Control Board Consent because his children had refused the transaction. The Criminal Court found no evidence that the Accused was the author of the consent and thus acquitted the Accused. 74.There was yet another suit, MC ELC number 161 of 2023, in which the parties were the said purchaser, Jeremano Gikonyo, as the Plaintiff, and the deceased Plaintiff herein as the defendant. The suit was settled through a Mediation Settlement Agreement, under which it was agreed that Joseph Gichuki Wambugu shall pay Jeremano Gikonyo Ndirangu (the purchaser) a sum of Kshs 1,450,000/=. The Agreement was adopted as a judgment of the Court. It did not state what would happen to the suit property. 75.They later entered into a rescission agreement dated November 5, 2019, in which the parties agreed that the purchaser would return the original title deed to the suit property to the legal representative of the estate of John Wambugu Macharia (deceased), and, in exchange, the legal representative would refund the Plaintiff the sum of Kenya Shillings One Million, Four Hundred and Fifty Thousand Only (1,450,000), being the purchase price of the suit property plus interest. Upon fulfillment of the obligations above, the agreement dated November 16, 2001, shall stand rescinded, and the property shall vest in the estate of John Wambugu Macharia (deceased). 76.In my view, this was not inconsistent with the Mediation Settlement agreement entered into, and it shows that the Plaintiff/Applicant herein, as the legal representative of the estate of John Wambugu Macharia (deceased), has established a prima facie right that can only be fully interrogated at the final hearing of the suit. The 1st Defendant’s legal representative also bears the onus of proving their claim to the suit property; the property ought to be protected pending the final hearing and determination of this suit. 77.Regarding the second limb for the grant of an injunction, the Applicant must show that they will suffer irreparable harm that damages cannot compensate. In my opinion, the Applicant has met this requirement. If the suit property is alienated or disposed of, the substratum of the suit will fall into the hands of third parties, further complicating the hearing. 78.In Nguruman Limited v Jan Bonde Nielson [Supra], it was observed that:“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.” 79.Therefore, the threshold for granting an injunction has been met, and the balance of convenience favors the Court issuing an order to preserve the suit property pending the full hearing and determination of the suit. This would not prejudice any party, as the suit property is now under the control and management of the 3rd Defendant under receivership. Although the 3rd Defendant Bank has insisted that it is not currently exercising its statutory power of sale, this position may change, further complicating the issues arising herein regarding the ownership of the suit property.2)Should the Court grant an inhibitory order to be registered against the suit property, restraining the registration of any dealings on the suit property pending the hearing and determination of this suit? 80.Section 68 of the Land Registration Act 2012 provides as follows:“(1)The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.(2)A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register.(3)An inhibition shall not bind or affect the land, lease or charge until it has been registered.” 81.In Peter Kariuki Njue v Severina Njira Kithumbu & another [2020] eKLR, the court found:“The purpose of an order of inhibition is to prohibit further dealings with the suit property. The court is thus of the opinion that it has a duty to preserve any property which is the subject of a dispute to prevent the risk of its alienation before the suit is heard and the rights of the parties conclusively determined. That legal duty was recognized in the case of Shivabhai Patel v Manibhai Patel [1959] EA 907. 82.Similarly, in the case of Japhet Kaimenyi M'Ndutho v M'ndatho M'Mbwiria (2012) eKLR, it was held that:“In an application for orders of inhibition, in my understanding, the applicant has to satisfy the following conditions: -a)That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the applicant unless preservatory orders of inhibition are issued.b)That the refusal to grant orders of inhibition would render the applicant’s suit nugatory.c)That the applicant has arguable case.The court has power to grant orders of inhibition against a suit land restricting registration of any dealing with suit land for a particular time or until the occurrence of a particular even or generally until further orders.” 83.In my view, these conditions have been met as discussed above. However, the 3rd Defendant will continue to exercise receivership over the suit property, including the collection of rent, pending the hearing and determination of this suit, as the parties battle over ownership 84.Costs in the cause DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 4TH DAY OF JUNE, 2026.E. K. MAKORIJUDGEIn the presence of:Ms. Kimani for the PlaintiffMs. Wachira for the 1st and 2nd DefendantMr. Njoroge for the 3rd DefendantsKendi: Court Assistant