https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4641

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC PETITION E021 OF 2025** **ANASTASIA WANJIRU ( Suing on behalf of** **the estate of Noah Karuga Koinage) ………………..………….. PETITIONER** **VERSUS** **JOEL NG’ANG’A KARIUKI (Executor of** **The estate of Wilfred Koinange Gathiomi) ……………. 1ST RESPONDENT** **THE LAND REGISTRAR KIAMBU ………………………. 2ND RESPONDENT** **RULING** 1. Following the dismissal of the 1st Respondent’s Preliminary Objection, the court is now called upon to determine the Petitioner’s Notice of Motion dated 27th October 2025 seeking that the court be pleased to issue an injunction restraining the 1st Respondent through their executors, servants, workmen and/or other employees from dealing, interfering, trespassing, transferring, charging, erecting structures and accessing the property known as KIAMBAA/ WAGUTHU/1306, KIAMBAA/ WAGUTHU/1302 and LIMURU/ BIBIRIONI/2223 pending the hearing of the petition. 2. The Petitioner also sought an order of inhibition inhibiting the registration of any dealing or disposition such as transfer, sub-division, charge or otherwise the land parcels known as KIAMBAA/ WAGUTHU/1306, KIAMBAA/WAGUTHU/1302 and LIMURU/BIBIRIONI/2223 pending the hearing of the petition. 3. The application is supported by the Applicant’s Supporting Affidavit sworn on even date. 4. In the said affidavit she has stated that she is the heir and beneficiary of the estate of Noah Karuga Koinange. The suit properties which are currently registered in the name of Wilfred Koinange Gathoni were sub-divided from parcels number KIAMBAA/ WAGUTHU/532, KIAMBAA/ WAGUTHU/461 and LIMURU/ BIBIRIONI/623 which were registered in the name of the late Noah Karuga Koinange. 5. Vide an elder’s award which was adopted by the court, the said titles were sub-divided, amalgamated into the various suit properties. 6. It is the Applicant’s assertion that the elders panel lacked the requisite jurisdiction to either cancel, amalgamate , subdivide and transfer an interest in land in favour of one party at the expense of another party. 7. She adds that the land is of immense ancestral and economic value to her late father’s estate and any alienation would occasion irreparable loss. 8. She is of the view that the law recognizes the name on the title as the legal registered owner, who in this case is the late Noah Karuga Koinange and one cannot pass a better title than that of the real owner. 9. The Applicant urges the court to intervene to preserve the suit properties. 10. In response to the Petition, the 1st Respondent filed a Notice of Preliminary Objection dated 1st November 2025 which was subsequently heard and dismissed by the court on the grounds that it did not raise pure points of law. 11. He later filed a Replying Affidavit sworn on 10th June 2026 in which he deponed that the Petitioner had brought the suit and application in bad faith as she was belatedly seeking to challenge an elders’ award dated 27th May 1992 given in HCCC No. 66 of 1984, which is 34 years after the award was made. The said award was consented to by her late father and the Petitioner is therefore trying to appeal against the same through the back door. He adds that the long delay is totally unreasonable, unlawful and unacceptable hence the application and the entire suit ought to be dismissed with costs. 12. It is her contention that the Petitioner’s father died in 2003, 11 years after the award was made without challenging it. He asserts that the parcels of land which had a dispute were KIAMBAA/ WAGUTHU/ 532, KIAMBAA /WAGUTHU/461, KIAMBAA/ WAGUTHU/ 1026, KIAMBAA/ WAGUTHU/1042 and LIMURU/ BIBIRIONI/623. All the aforementioned titles were cancelled and the land was consolidated and shared equally among the children of JOYCE KAGENDO KOINANGE, including the Petitioner’s father. 13. The 1st Respondent states that the suit has been overtaken by events as Kiambu Succession Cause No. 12 of 2018 pertaining to the estate of WILFRED KOINANGE GITHIOMI Deceased was concluded and those who were dissatisfied with the decision of the High Court filed Civil Appeal No.E334 of 2021 in the Court of Appeal. The said appeal was referred for mediation and the same was resolved through a mediation settlement agreement dated 23.4.26 which was adopted by the court on 7th May 2026. The effect of the said mediation settlement agreement was to distribute the suit properties. 14. He adds that no appeal has been filed against the said consent order and that this court cannot set aside or quash the decision of the Court of Appeal or the Mediation. Settlement agreement that was adopted as an order of the court by the Court of Appeal. 15. He avers that the work of the 1st Respondent as the executor of the will of the estate of WILFRED KOINANGE GITHIOMI (Deceased) ended after he distributed the estate of the deceased. Further that the prayers sought in this application cannot be sustained as the 1st Respondent is sued in his capacity as an administrator of an estate which has already been distributed. 16. On the 25th June 2026 JOYCE WAMBUI MUTURA CELESTINE WANJIRU NJOROGE and GEORGE GABRIEL NJOROGE KAMAU who were objectors in Kiambu HC Succession Cause no. 12 of 2018 and who later became appellants in Civil Appeal No. E334 of 2021 filed an application seeking to be joined in the is matter as interested parties in order to shed light on the distribution of the suit properties and the court granted him leave to do so. 17. The court directed that the application be canvassed by way of way of written submissions but by the time of writing this ruling, only the applicant had filed her submissions. **ANALYSIS AND DETERMINATION** 18. The principles for the grant of an interlocutory injunction were articulated in the celebrated case of **Giella v Cassman Brown & Company limited (1973) E.A 358**. These principles were reiterated in the case of **Nguruman Limited v Jan Bonde Nielsen & 2 Others ( 2014) eKLR** where the court held as follows: “*In an interlocutory injunction application, the applicant has to satisfy the triple requirements to:* 1. *Establish his case only at a prima facie level* 2. *Demonstrate irreparable injury if the temporary injunction is not granted and* 3. *Allay 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 steps are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially”* 19. In **Mrao v First American Bank of Kenya Limited & 2 Others (2003) KLR 125,** the Court of Appeal defined a prima facie case as follows: “*It may not be easy to define what is meant by prima facie case but at least it must mean one on which a reasonable tribunal properly directing its mind to the law and evidence could convict if no explanation is offered by the defence. The terms “prima facie case and genuine and arguable case do not necessarily mean the same thing, for in using another term, , namely a sustainable cause of action the words prima facie are frequently used to refer to a case which shifts the evidential burden of proof…* *In civil cases a prima facie case 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 to call for an explanation or rebuttal form the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right and the probability of success of the Applicant’s case upon trial. That is clearly standard which is higher than an arguable case”* 20. Applying the above principles outlined in the above case, the Petitioner seeks an injunction pending the hearing and determination of the suit in which she alleges a violation of the Petitioner’s constitutional rights enshrined in Articles 10, 40, 47, 48, 50 and 159 of the Constitution of Kenya. 21. The Petitioner inter alia alleges that the 1st Respondent has unlawfully and unprocedurally deprived the Petitioner and the estate of Noah Karuga Koinange the right to own and enjoy the properties known as KIAMBAA/ WAGUTHU/ 532, KIAMBAA / WAGUTHU/461, KIAMBAA/ WAGUTHU/ 1026, KIAMBAA/ WAGUTHU/1042 and LIMURU/ BIBIRIONI/623. 22. It is not lost to the court that this matter has been litigated extensively over a period of four decades. All the aforementioned titles were cancelled and the land was consolidated and shared equally among the children of JOYCE KAGENDO KOINANGE, including the Petitioner’s father. 23. The elders award and subsequent judgment were passed during the lifetime of the Petitioner’s father NOAH KARUGA KOINANGE yet he never contested the same prior to his death on 19th October 2011; that is to say 15 years after the said award and 27 years after the judgment. 24. It is clear that the matter has been overtaken by events following the adoption of a consent judgment by the Court of Appeal in Civil Appeal No. E334 of 2021 as earlier stated in this ruling. That being the position, the Applicant has failed to establish a prima facie case as this court cannot reopen the matter nor can the injunction sought be granted. 25. Since no prima facie case has been established, there would be no need to consider the other conditions for the grant of an injunction. 26. The upshot is that the application lacks merit and it is hereby dismissed. 27. The costs of the application shall be in the cause. **Dated, signed and delivered virtually at Thika this 20th day of July 2026.** **............................** **J.M ONYANGO** **JUDGE** **In the presence of:** 1. Anastasia Wanjiku Petitioner, present in person. 2. No appearance for the Respondent. 3. Court Assistant: Hinga