https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3000

Uyoga v Ali & another (Environment and Land Case E222 of 2025) [2026] KEELC 3000 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELC 3000 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E222 of 2025 MN Kullow, J May 15, 2026 Between Zedekiah O Uyoga Applicant and Mohammed Ali 1st Respondent Registered Trustees of Kenya Railways Staff Retirement Benefit Scheme 2nd Respondent Ruling The Application 1.This ruling is in respect of the Notice of Motion Application dated 5th April 2025 filed by the Plaintiff/Applicant. The Application is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 and Order 51 Rules 1, of the Civil Procedure Rules. 2.Through the said Application, the Plaintiff/Applicant seeks, inter alia, temporary injunctive orders restraining the 1st Defendant/Respondent, his agents, servants and/or associates from trespassing onto, occupying, alienating, wasting and/or in any other manner interfering with the Plaintiff’s quiet possession and enjoyment of House No. 33 Matumbato Estate situated on Land Reference No. 209/6507 pending the hearing and determination of the suit. 3.The Applicant further seeks an eviction order against the 1st Defendant/Respondent from the suit property, an order directing the OCS Capitol Hill Police Station to ensure compliance with the orders of the Court, costs of the Application, and such further orders as this Court may deem fit and just. 4.The Application is premised on the grounds set on its face, namely, that the Plaintiff/Applicant is the lawful lessee of the suit property pursuant to a lease agreement entered into with the 2nd Defendant/Respondent on 10th March 2010 and renewed in March 2020 for a further term of ten years set to lapse on 28th February 2030. 5.The Applicant contends that the 1st Defendant/Respondent, without any colour of right, unlawfully trespassed onto and occupied the suit property thereby depriving him of quiet possession and peaceful enjoyment thereof. It is further contended that the 1st Defendant/Respondent’s occupation is founded on false claims of ownership and that despite efforts through the 2nd Defendant/Respondent and local authorities to have him vacate the premises, he has remained adamant and continues in wrongful occupation of the suit property to the detriment of the Applicant. 6.The Application is supported by the Affidavit of Zedekiah O. Uyoga sworn on 5th April 2025. The deponent avers that he entered into a lease agreement with the 2nd Defendant/Respondent and has duly complied with the terms thereof including payment of rent. He further avers that the 1st Defendant/Respondent, together with his agents, servants and/or associates, has unlawfully occupied the suit premises, disrupted his lawful occupation, and threatened him with physical violence whenever he attempts to gain access to the property. 7.The deponent maintains that unless restrained by this Court, the 1st Defendant/Respondent shall continue with the alleged acts of trespass and illegal occupation thereby occasioning him substantial loss and prejudice. Response To The Application 8.In Response to the Application The 2nd Defendant/Respondent filed a Replying Affidavit sworn on 9th July 2025 by Isaac Sila, the Chief Executive Officer of the 2nd Defendant/Respondent. The deponent avers that the Application is frivolous, vexatious, an abuse of the court process, and intended to defeat the doctrines of sub judice and res judicata. He contends that the Plaintiff/Applicant has deliberately concealed material facts from the Court and instituted multiple suits over the same subject matter, namely House No. 33 Matumbato Estate situated on Land Reference No. 209/6507. 9.The 2nd Defendant/Respondent further avers that there have been several previous proceedings touching on the same suit property, including Milimani MCCC Miscellaneous Case No. E1800 of 2022, Milimani Civil Case No. 1766 of 2023, Milimani MCCC No. E2062 of 2023, and Nairobi ELC Appeal No. E09 of 2023, all instituted either by the Plaintiff/Applicant herein or by one Chizi Ambala. 10.According to the deponent, some of the said suits and applications were dismissed while others were withdrawn or abandoned. It is averred that in Milimani MCCC No. E2062 of 2023, the Court dismissed the Plaintiff/Applicant’s application upon finding that he had failed to establish a prima facie case and that he did not possess a valid lease. The deponent further states that although the Plaintiff/Applicant lodged an appeal therefrom, the same was subsequently dismissed after failure to comply with the conditions imposed by the Court. 11.The 2nd Defendant/Respondent also disputes the validity of the lease relied upon by the Plaintiff/Applicant. It is deponed that the lease agreement entered into between the parties on 15th March 2010 was for a term of six years only and expired in the year 2016 by effluxion of time. 12.The deponent avers that the lease expressly prohibited subletting without prior written consent and that no such consent was ever granted. Further, it is averred that upon expiry of the lease, the Plaintiff/Applicant was notified to yield vacant possession but failed to do so. The Respondent therefore maintains that the Plaintiff/Applicant has failed to satisfy the threshold for grant of injunctive orders, has not demonstrated irreparable harm, and is merely forum shopping while wasting judicial time and resources. 13.On 12th February 2026, this matter came up before the Court for directions on the hearing of the Application and the Court directed that the Application be canvassed by way of written submissions and thereafter reserved the matter for ruling upon receipt of the parties’ respective submissions and authorities. Analysis and Determination 14.The Court has since carefully considered the Application, the grounds in support thereof, the Replying Affidavit in opposition thereto, together with the submissions on record. 15.In the Court’s considered view, the sole issue arising for determination is; Whether the Plaintiff/Applicant has met the threshold for the grant of the temporary injunctive orders sought. 16.The law governing grant of interlocutory injunctions is set out under Order 40 Rule 1 (a) and (b) of the Civil Procedure Rules as follows:“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; orb.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 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.” 17.The principles for grant of injunction are well settled by the locus classicus of Giella Vs Cassman Brown & Company Limited [1973] E.A. 358., where the court stated thus: “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.” 18.Further In Nguruman Limited vs Jan Bonde Nielsen & 2 others [2013] KECA 347 (KLR) the Court of Appeal had this to say on prima facie case; “ 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” 19.Applying the foregoing principles to the present Application, the Plaintiff/Applicant contends that he is the lawful lessee of House No. 33 Matumbato Estate situated on Land Reference No. 209/6507 and that the lease was renewed in March 2020 for a further term of ten years expiring on 28th February 2030. He alleges that the 1st Defendant/Respondent unlawfully trespassed onto the suit property thereby interfering with his quiet possession and enjoyment thereof. 20.The 2nd Defendant/Respondent, however, disputes the existence of any valid renewal and maintains that the lease agreement executed between the parties on 15th March 2010 was for a term of six years only and expired in the year 2016 by effluxion of time. The Respondent further contends that upon expiry of the lease, the Plaintiff/Applicant was required to yield vacant possession but failed to do so. 21.The Court further notes that the 2nd Defendant/Respondent has placed before it evidence of previous suits and applications filed in respect of the same suit property, including Milimani, MCCC No. E2062 of 2023 and Nairobi ELC Appeal No. E09 of 2023, wherein similar issues and prayers were raised. The Court also notes the averment by the 2nd Defendant/Respondent that the Plaintiff/Applicant had sublet the premises contrary to the terms of the lease agreement and is presently not in occupation of the suit property. 22.In the circumstances, and without making definitive findings at this interlocutory stage, this Court is not persuaded that the Plaintiff/Applicant has demonstrated a clear and enforceable right capable of protection through an interlocutory injunction. The validity and subsistence of the lease relied upon by the Plaintiff/Applicant remains contested and can only be conclusively determined upon a full hearing of the suit. Consequently, the Court finds that the Plaintiff/Applicant has failed to establish a prima facie case with a probability of success as required under the principles set out in Giella vs Cassman Brown (supra). 23.On the issue of costs, the general principle is that costs follow the event pursuant to Section 27 of the Civil Procedure Act, unless the Court for good reason orders otherwise. Having found that the Plaintiff/Applicant has failed to satisfy the threshold for the grant of interlocutory injunctive orders, this Court finds no reason to depart from the general rule. Accordingly, the costs of the Application shall be borne by the Plaintiff/Applicant. Final Disposition 24.In the upshot, the Notice of Motion Application dated 5th April 2025 lacks merit and the same is hereby dismissed with costs to the 2nd Defendant/Respondent. It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on 15th day of May, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -N/A for the PlaintiffN/A for 1st DefendantsMr. Wanda for 2nd DefendantsPhilomena W. Court Assistant