Baobab Diagnostics Limited v Wanja & 3 others (Environment and Land Case E064 of 2024) [2025] KEELC 6406 (KLR)

4. For good order, the Honourable Court shall deal with these three (3) applications though distinctly and separately but simultaneously. II. The Notice of Motion application dated 9th October 2024 by the Plaintifi/Applicant. 5. The Application was brought under the dint of the provision of Article 40 [1] and 40 [6] of the Constitution of Kenya 2010, Section 13 [5] of the Environment and Land Court Act, Sections 1A,1B,3,3A and 63 [e] of the Civil Procedure Act, Order 40 Rules 1,2,3 Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. 6. The Applicant sought for the following orders: - 7. a. Spent. b. This Honourable Court be pleased to issue an order of temporary injunction against the 1st 2nd and 3rd Defendants/Respondents, their agents, servants and all those claiming under them from entering, accessing, leasing, selling, transferring or in any other way interfering with land Title No. Kwale/Galu Kinondo/27 pending the hearing and determination of this application. c. This Honourable Court be pleased to issue an order of temporary injunction against the 1st 2nd and 3rd Defendants/Respondents, their agents, servants and all those claiming under them from entering, accessing, leasing, selling, transferring or in any other way interfering with land Title No. Kwale/Galu Kinondo/27 pending the hearing and determination of this suit. d. Upon hearing interpartes of this application, this Honourable Court be pleased to issue an order directing the 2nd and 3rd Defendants/Respondents to demolish the construction and/or developments so far done by themselves on land Title No. Kwale/Galu Kinondo/27 e. This Honourable Court be pleased to issue an order that the OCS Diani Police Station do ofier security and assistance in ensuring compliance of prayer no 4 above. f. Costs of this application be provided for. The application by the Applicant herein was premised on the grounds, testimonial facts and averments made out under the 21 Paragraphed Supporting Afidavit of – Jitesh Ramji Mepani, the appointed oficial of the Plaintifi/Applicant herein sworn and dated 9th October 2024 with fifteen (15) annextures marked as “JRM - 1 to 15”. The Applicant averred that: a. He was the Plaintifi/Applicant and the bonafide registered owner of land Title No. Kwale/ Galu Kinondo/27 as per an attached title deed. b. The Plaintifi/Applicant was previously known as Baobab Investments Limited whereupon the same changed in the year 1987 to Baobab Diagnostic Limited. That before the change in name the Applicant was registered as the proprietor of the land as a first registration in the year 1984. c. On 20th March 2008 a survey report positively confirmed and defined the boundaries of the suit property and a beacon certificate was prepared to that efiect. That on 23rd May 2008 the beneficial owners of the Plaintifi company Robert Philip Ashworth and Michael Lewis Somen sold the same vide a sale of shares agreement to Murjibhai Lalji Pindolia, Kishor Murji Pindolia and Jyotiprasad Jivrambhai Thakkar and which sale was inclusive of the land at a sum of Kenya Twelve Million Nine Hundred and Eight Thousand Five Hundred and Four (Kshs. 12,908,504/-). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 2

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d. It was averred that a request for change of name of the Plaintifi was made on 9th June 2008 and a new certificate was issued on the same date. That searches over the suit property from then had proved that the same was registered in the names of the Plaintifi. Further that all the requisite land rates had always been paid by the Plaintifi. e. It was deposed that sometime in August 2024 the Plaintifi discovered that the suit property had been accessed by unknown persons who were infact making developments on the same. That a letter was written to the County Land Registrar on 9th August 2024 with a view of knowing the status of the land. f. A caution was immediately placed on the land and the Plaintifi was supplied with the fraudulent transfer documents that had been used to make a parallel registration to the suit property. The same revealed that the 1st Defendant had efiected transfer to the 2nd Defendant through a sale at a consideration of a sum of Kenya Shillings Thirty million only (Kshs. 30,000,000/-). g. Upon investigations before the Deputy County Commissioner Msambweni County, it was established that the application for land control board consent tabled on 12th June 2024 had been rejected. h. The Land Registrar followed up on the complaint for the fraudulent transfer and issued notices to the Defendants to surrender the title as well as writing to the relevant ministry for purposes of de gazzettment of the title. i. The Plaintifi referred to the transfer of the suit property as efiected between the Defendants herein as being fraudulent and particularised the contents of the alleged fraud under paragraph 16 of the supporting afidavit. j. The deponent stated that there was ongoing construction on the suit property and unless the same was stopped by the court through the orders sought in the instant application, the Plaintifi was bound to sufier irreparable harm. Further that the Plaintifi had met the threshold set in “the classicus locus case of “Giella - Versus - Cassman Brown”. III. The Response by the 2nd and 3rd Defendants/Respondents 8. On 12th November 2024, the 2nd and 3rd Defendants filed a 20 Paragraphed Replying Afidavit sworn by AMINA FUNDI CHIDZUGA, the 3rd Defendant herein in opposition of the application together with six (6) annexures marked as “AFC 1 - 6” annexed thereof. She stated as follows that: a. The afidavit was being sworn in opposition to the Plaintifi's application dated 9th October 2024. That the 2nd Defendant/Respondent is the registered proprietor of all that parcel of land known as Kwale/Galu Kinondo/27 as per copies of the Title Deed and Search respectively. b. The 2nd Defendant/Respondent purchased the suit property for value from the 1st Defendant/ Respondent who was then registered proprietor Mary Wanja vide a sale agreement dated 9th May 2024. c. The deponent stated that prior to the purchase, the 2nd Defendant/Respondent undertook extensive due diligence to ascertain the status, history and ownership of the suit property. Further that the 2nd Defendant/Respondent paid all the stamp duty and registration fees, and ensured that the transaction was above board. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 3

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d. It was deposed that the 2nd Defendant/Respondent thereafter took possession of the suit property after purchase and has undertaken extensive development thereon. That the purchase of the suit property by 2nd Defendant/Respondent was above board. Neither 2nd Defendant/ Respondent nor the deponent were part of any fraud as alleged by the Plaintifi/Applicant. e. As the director of the 2nd Defendant/Respondent, the 3rd Defendant acted in good faith and purchased the property innocently for without any notice of the alleged fraud hence the extensive due diligence conducted by her Advocates on his own behalf and that of the 2nd Defendant/Respondent. f. It was stated that on 30th September 2024, the Kwale Land Registrar wrote to the 2nd Defendant/Respondent requiring it to surrender Title Deed to the suit property being Title Deed Serial No. 5080610 for cancellation and rectification of the Register. On the same 30th September 2024, the Kwale Land Registrar wrote to the Government Printer forwarding a Gazette Notice titled" Degazettement of Title Deed Kwale/Galu Kinondo/27" indicating that the 2nd Defendant/Respondent's Title Deed would stand cancelled and of no efiect hence null and void from the date of the notice. g. If the Kwale Land Registrar considered the alleged Petition by the Plaintifi/Application then the same was conducted unilaterally without afiording the 2nd Defendant/Respondent and the deponent an opportunity to be heard contrary to the provision of Article 47 of the Constitution, the Fair Administrative Act and Rules of natural justice. h. That on 2nd October 2024, persons alleging to be agents of the Plaintifi/Applicant, in the company of DCI oficers invaded the suit property and arrested the 2nd Defendant/ Respondent's construction workers on allegations of trespass. That the said parties have embarked on demolition of the 2nd Defendant/Respondent's development and purportedly started constructing a perimeter wall around the suit property. i. The 2nd Defendant/Respondent immediately instituted a suit under a certificate of urgency against the Plaintifi/Application, DCI Kwale and Kwale Land Registrar being:- “Kwale Mcelc/E055/2024 - Galupaeonia Limited – Versus - Baobab Diagnostics limited and 2 others”. The application was certified urgent and the court subsequently issued restraining injunctive orders against the Plaintifi/Application, DCI Kwale and Kwale Land Registrar. j. The instant suit was filed after the Plaintifi getting information from the DCI Kwale about the Orders issued in “Kwale Mcelc/E055/2024 - Galupaeonia Limited – Versus - Baobab Diagnostics limited and 2 others”, that the Plaintifi/Applicant rushed to this Honourable Court and filed this instant suit and application without disclosing about the pendency of KWALE MCELC/E055/2024. k. It was stated that as it stood there were 2 court orders each granting the parties injunctive orders against the other. That the 2nd Defendant/Respondent stood to sufier irreparable loss if the orders sought herein was confirmed/granted to the Plaintifi/Applicant. The deponent stated that only an order maintaining the status quo ante would serve the interests of justice and that of all the parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 4

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IV. The Supplementary Afidavit by the Plaintifi 9. On 9th October 2024, the Plaintifi filed a 21 Paragraphed Supplementary Afidavit sworn by Jitesh Ramji Mepani, the appointed oficial of herein in a rejoinder to the averments raised in the 2nd and 3rd Defendants’ Replying Afidavit sworn on 12th November 2024. He stated as follows that: a. In response to the contents of Paragraph 3 of the Replying Afidavit, the Plaintifi maintained that it was the bona fide registered owner of land Title No. Kwale/Galu/Kinondo/27 and that the alleged ownership by the 2nd Defendant was tainted with fraud and illegality. b. It was averred that in as much as the 2nd Defendant/Respondent herein purports and alleged to have bought the suit land from the 1st Defendant/Respondent, the said sale was null and void ab initio as the said 1st Defendant fraudulently, illegally and unlawfully secured registration of the suit land in her name which she later transferred via a sale to the 2nd Defendant herein and therefore, no good title and/or valid legal interest could pass from the 1st Defendant to the 2nd Defendant or to any other person whatsoever. c. In further response to the contents of Paragraph 4, the Kwale County Land Registrar's observation on his letter dated 30th September, 2024 was that the 1st Defendant was actually not the bona fide owner of the land and that some ownership documents had been plucked ofi the record and forged and new ones planted. d. In response to Paragraph 5, it was averred that the 2nd Defendant/Respondent did not undertake any due diligence or at all to ascertain the ownership of the property. In particular, the 2nd Defendant had failed to produce any land rate clearance certificate that it obtained from the 1st Defendant as part of completion documents which document is a mandatory completion document to be supplied by the vendor to the purchaser on the completion date pursuant to Condition 8.4.1 of the Law Society of Kenya (LSK) Conditions of sale, 2015. e. In response to paragraph 6, the deponent stated that the transaction between the 1st Defendant and the 2nd Defendant herein was nothing near a transaction that is above board. The 1st Defendant's application for Land Control Board consent was rejected by the Msambweni Sub County Land Control Board chaired by the Deputy County Commissioner on 12th June, 2024. f. The court was asked to interrogate the question of where the 1st Defendant got the Land Control Board consent that was presented to the Kwale County Land Registrar on 4th July, 2024 which saw the sanctioning of the illegal and unlawful transfer of the suit land from the 1st Defendant to the 2nd Defendant. g. It was deposed that the 2nd Defendant's unlawful and illegal occupation and development of the suit land, have violated and continue to violate the proprietary rights of the Plaintifi in the suit land which this Honourable Court should not countenance. h. Also that in order to be considered a bona fide purchaser for value, one must first prove that they acquired a valid and legal title, which the 2nd Defendant herein had failed to account for. That the 1st Defendant failed to avail a land rate clearance certificate which is a crucial completion document. Therefore, the 2nd Defendant should not be heard to allege that it purchased the property innocently without notice of fraud and that its advocates conducted extensive due diligence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 5

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i. According to the deponent, the Kwale County Land Registrar did afiord the Defendant's herein an opportunity to be heard as evidenced in all his correspondences and that the Kwale County Land Registrar acted pursuant to Section 79 (2) of the Land Registration Act. j. That whilst the 2nd Defendant herein instituted a suit in the Kwale Magistrate's Court, the same was an outright abuse of the process of the Honourable Court and there is since a contestation on the subordinate Court's pecuniary jurisdiction that is pending determination. Also that at the time the Plaintifi instituted the proceedings herein, it was unaware of the Kwale Magistrate Court matter and became only aware when it served the orders herein upon the DCI Kwale since there were pending investigations for fraud over the suit land against the 1st 2nd and 3rd Defendants herein. k. In response to the issue of two confiicting court orders, it was stated that the Kwale Magistrate Court did not have the requisite pecuniary jurisdiction to hear and determine the matter. The Plaintifi maintained that it had established “a prima facie case” and asked the court to allow its application as had been prayed. l. Lastly that orders to maintain status quo ante would be orders confirming the violation of the proprietary rights of the Plaintifi over the suit land and therefore such orders should not issue as they were not in the interest of justice. V. The Notice of Motion application dated 10th March 2025 by the 2nd Defendant/Applicants. 10. 11. Under the above application, the 2nd Defendant/Applicant sought for the following orders before court:a. Spent. b. That pending the inter partes hearing and determination of this application, this Honourable Court be pleased to restore the status quo ante obtaining prior to the issuance of the order dated 11th October 2024 between the parties herein, to wit, that the 2nd Defendant/Applicant be in unconditional possession and occupation of Kwale/Galu Kinondo/27 c. That pending the inter partes hearing and determination of this suit, this Honourable Court be pleased to restore the status quo ante obtaining prior to the issuance of the order dated 11th October 2024 between the parties herein to wit that the 2nd Defendant/Applicant be in unconditional possession and occupation of Kwale/Galu Kinondo/27 d. That an order do issue permitting the 2nd Defendant/Applicant to proceed with undertaking any further construction or development on land title number Kwale/Galu Kinondo/27 as she deems fit/necessary e. That an order do issue compelling the OCS Diani Police Station to enforce the said orders and f. That costs of this application be provided for The application by the Applicant herein was premised on the grounds, testimonial facts and averments made out under the 12 Paragraphed Supporting Afidavit of – Florian Wunderlich, the director of the 2nd Defendant herein sworn and dated 10th March 2025 with two (2) annextures marked as “FW - 1 to 2”. The Applicant averred that: a. The company is a legal and lawfully registered owner of all that piece of land known as Kwale/ Galu Kinondo/27. That before purchase of the said suit property the company conducted due https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 6

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diligence of the property, followed due process and acquired the property at the value of a sum of Kenya Shillings one hundred and nineteen million (Kshs. 119,000,000/-) b. Consequently, the Land Registrar issued the 2nd Defendant with a clean title to the suit property. The deponent stated that the 2nd Defendant was a bona - fide purchaser for value and had taken several reasonable steps to develop the suit property at the tune of over a sum of Kenya Shillings Eight Million (Kshs. 8,000,000/-). c. Vide an order dated 11th October 2024 a temporary injunction was issued against the defendants from undertaking any further developments on the suit property. d. Prior to being served with the said orders the 2nd Defendants workers were arrested on 9th October 2024 and which amounts to abuse and misuse of power on the part of the plaintifi. e. The current oficial search and green card indicate that the 2nd Defendant was the rightful owner of the suit property and should thus not be limited to use of the property. f. It was lastly stated that status quo orders were ancillary orders for preserving the situation as it existed pending proceedings and which would provide stability and ensure the Applicant was not harmed. That the balance of convenience titled towards the applicant to preserve the integrity of its rights. VI. The response by the Plaintifi/Respondent 12. The Plaintifi filed a 23 Paragraphed Replying Afidavit sworn by Jitesh Ramji Mepani in opposition of the application together with nine (9) annexures marked as “JRM 1 - 9” annexed thereof. 13. The deponent stated that he had seen, read, understood and where possible the same had been explained to him by the Plaintifi's Advocates on record, Messrs. Echom Asiro & Company Advocates, the true meaning, contents, and purpose of the 2nd Defendant's Notice of Motion Application dated 10th March, 2025 together with the Supporting Afidavit of Florian Wunderlich, sworn on the even date. 14. The deponent urged the court to place reliance on his Supporting Afidavit and Supplementary Afidavit sworn on 9th October, 2024 and 27th November, 2024, respectively. 15. It was deposed that the Plaintifi emphasized that it was the bona fide registered owner of land Title No. Kwale/Galu Kinondo/27 hereinafter, the suit property as per the copy of the title deed of Kwale/ Galu Kinondo/27 in the name of Baobab Diagnostics Limited. 16. The Plaintifi herein had religiously paid for all the requisite Land rates as deponed at Paragraph 9 of the Supporting Afidavit dated 9th October, 2024. Further that the land rate demand notice for the year 2025 had already been issued to its name and the same had been duly paid. 17. The Plaintifi maintained that the 2nd Defendant should not be heard to purport that it carried out due diligence before the alleged purchase of the suit property. That in particular, the 2nd Defendant had failed to produce at the very least, any land rate clearance certificate that it obtained from the 1st Defendant as part of completion documents which document is a mandatory completion document to be supplied by the vendor to the purchaser on the completion date pursuant to Condition 8.4.1 of the LSK Conditions of sale, 2015. 18. That in further opposition to Paragraph 3 of the supporting afidavit, when the 2nd Defendant herein started the unlawful constructions on the suit property, the Plaintifi herein reported the matter to the Directorate of Criminal Investigations, Kwale, from which investigations ensued and a number of key https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 7

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Public Oficers recorded their statements thereto, with regards to the transactions between the 1st and 2nd Defendants as follows: a. One Mr. Charles K. Ngetich currently in charge of Kuria Lands Registry and previously incharge of Kwale Lands Registry, and purported to have signed and issued a title deed of the suit property to the 1st Defendant on 12th September, 2014, indicated that he was a stranger to such entry. b. That in particular, Mr. Ngetich upon being shown the said title deed and a green card, indicated that the title and the green card were forgeries and the signatures, handwriting and stamp impressions on the documents are not his. c. One Mr. Josphat S. Mutisya, currently the Deputy County Commissioner, Msambweni SubCounty and the chairperson of Msambweni Land Control board meetings, indicated that during the land board meeting of 12th June, 2024, an agenda in their business of the day was the suit property herein. d. Mr. Mutisya also indicated that the 1st Defendant appeared before the board members as the purported registered owner and that after interrogations, the agenda was rejected by the board members on suspicion of land fraud. He also indicated that the 1st Defendant was asked to appear before the board after it carried out due diligence on the suit property but surprisingly, the 1st Defendant never went back to the land control board and the application was thereby rejected. e. That surprisingly, the 1st Defendant still came up with a Land Control Board consent that was used to transfer the suit land from her to the 2nd Defendant. That the question that begged answers was where did the 1st Defendant secure an LCB Letter of Consent that was presented at the lands ofice to facilitate the illegal transfer when in fact, Mr. Mutisya, indicated in his statement, that the said consent dated 12th June, 2024 and purportedly signed by himself, was a forgery and that the serial number of the consent booklet does not belong to the Msambweni Land Control Board. f. One Mr. Steve Mokaya, the current Land Registrar at the Kwale Land Registry, indicated that upon receiving a complaint from the Plaintifi herein regarding unlawful constructions on its land by persons unknown to it, Mr. Mokaya perused the parcel file and realized that the file had been tempered with, documents plucked out and the purported green card which he had use to efiect the transfer, was actually not the authentic one. g. Mr. Mokaya also indicated that after his analysis of the register, he concluded that indeed the Plaintifi is the bona fide owner of the suit property which fact made him immediately write to the 1st and 2nd Defendants to surrender the title deed issued to the 2nd Defendant for immediate cancellation. Mr. Mokaya further indicated that he wrote to the Kenya Gazette for degazettment of the title deed issued to the 2nd Defendant herein. 19. It was further deposed that in opposition to the contents of Paragraph 3 of the supporting afidavit, the Plaintifi stated that no clean title deed of the suit property could be issued by the Land Registrar as the said Registrar upon receiving a complaint Petition from the Plaintifi, renounced the titles issued to the 1st Defendant and subsequently to the 2nd Defendant. 20. The Plaintifi maintained that the strings of transactions as between the 1st & 2nd Defendants herein remained hotly contested as to the legality and lawfulness, which issue could only be determined by this Honourable Court upon hearing all the parties herein on merit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 8

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21. In response to the contents of Paragraph 4 of the supporting afidavit, in order to be considered a bona fide purchaser for value, one must first prove that they acquired a valid and legal title, which the 2nd Defendant herein had failed to account for, even on a prima facie basis. 22. That in further response to Paragraph 4 of the supporting afidavit, the Plaintifi maintained that the dispute herein entails rival parties having rival title deeds to the suit property hence parallel proprietary interests in the land. On that regard, it was thus not question of which party had invested what in the suit property but rather, each party was required to go beyond the instrument and prove the legality of how it acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. 23. It was untrue that the Plaintifi misguided this Honorable Court in seeking the Orders granted on 11th October, 2024. The Plaintifi stated that upon learning of the unlawful and illegal construction of the 2nd Defendant on the suit land, the Plaintifi reported the matter to Directorate of Criminal Investigations, Kwale and if any arrests were done, the Plaintifi had no mandate and/or control of how the Directorate carried out their mandate. The Plaintifi maintained that the matter was still pending investigation at the Directorate of Criminal Investigations (DCI), Headquarters. 24. The Plaintifi disputed the ownership of the suit land by the 2nd Defendant as the Plaintifi equally had a title registered in its name with previous searches showing the Plaintifi as the bona fide owner. 25. That the ex - parte orders granted on 11th October, 2024 did injunct the Defendants from undertaking further construction or development on the suit land. Also that Article 65 was to be read in harmony with Article 40 of the Constitution of Kenya, 2010, which Article stipulated that the right to property never extended to property that had been unlawfully acquired, as was the case herein. 26. According to the deponent, the orders of status quo ante as sought by the 2nd Defendant, was an ancillary remedy aimed at restoring the position of the parties to how it existed prior to the decision complained of. In essence, it would mean that the 2nd Defendant be allowed to continue with construction on a land to which the Plaintifi herein was the bona fide owner. In addition, the Plaintifi herein had maintained from the very onset that the said construction as was started by the 2nd Defendant was unlawful, illegal and in contravention of its proprietary rights with regards to the suit land. 27. The deponent stated that orders of status quo ante would essentially mean final determination of the rights of the parties herein with respect to the suit property without hearing the parties on merit, that an order of temporary injunction restraining the Defendants herein from dealing with the suit land whatsoever pending the determination of the suit and/or an order of status quo pending the determination of the suit, would be just and proper to grant as the same was geared towards preserving the substratum of the subject matter and preventing prejudice as between the parties, to a matter pending the hearing and determination of the main suit. 28. It was lastly deposed that the balance of convenience tilted towards issuing a temporary injunction and/or status quo orders so as to preserve the suit property pending the hearing and determination of this matter on merit. The court was urged to dismiss the application as prayed. VII. The Notice of Motion application dated 22nd April, 2025 29. The Notice of motion application dated 22nd day of April 2025 was made by the Plaintifi/Applicant. It was under the provision of Sections 1A, IB, 3, 3A, 22, and 63 (e) of the Civil Procedure Act, Cap. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 9

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21, Order 1 Rules 10 (2) and Order 51 Rule of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. The Plaintifi/Applicant sought for the following orders that: 30. a. Spent. b. This Honourable Court be pleased to issue an order that the Directorate of Criminal Investigations, headquarters, be joined as an interested party herein in order to enable this Honourable Court efiectually and completely adjudicate upon and settle all questions involved in this suit. c. This Honourable Court be pleased to issue an Order that the Directorate of Criminal Investigations, Headquarters do produce as evidence before this Honourable Court, the following documents in their custody, as a result of the criminal investigations into the allegations of fraud and forgery as regards the sale transaction between the 1st and 2nd Defendants herein: - d. The certified original witness statement of Mr. Charles K. Ngetich, the immediate former Land Registrar of Kwale Land Registry. e. The certified original witness statement of Mr. Josphat S. Mutisya, currently the Deputy County Commissioner, Msambweni Sub-County and the chairperson of Msambweni Land Control board meetings. f. The certified original witness statement of Mr. Steve Mokaya, the current Land Registrar Kwale Land Registry. g. The green card for land Title No. Kwale/Galu/Kinondo/27 as obtained from the Kwale Land Registry. h. The investigation report, if any. i). The document examination report, if any. ii). Any other necessary document in their custody with regards to the aforementioned investigations. ii). Costs of this Application be provided for. The application was premised on the grounds, testimonial facts and averments made out under the contents of the 10 Paragraphed supporting afidavit of Jitesh Ramji Mepani. He averred that: a). He was an adult male of sound and an appointed oficial of the Plaintifi/Applicant duly conversant with the facts attending to this matter, duly authorized and hence competent to depone to this Afidavit. b). From his own knowledge that when the 2nd Defendant herein started the unlawful constructions on suit land, the Plaintifi herein reported the matter to the Directorate of Criminal Investigations, Kwale. c). Thereafter, investigations ensued and the file was later transferred to Directorate of Criminal Investigations, Headquarters for further action. d). He also knew that the Directorate of Criminal Investigations, Headquarters, the intended interested party herein, had conducted and/or was continuing with criminal investigations into the allegations of fraud and forgery as regards the sale transaction between the 1st and 2nd Defendants herein in relation to the suit land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 10

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e). Equally, he knew that in the said investigations, a number of key Public Oficers recorded their statements thereto, with regard to the transactions between the 1st and 2nd Defendants as follows: i. One Mr. Charles K. Ngetich currently in charge of Kuria Lands Registry and previously in-charge of Kwale Lands Registry, and purported to have signed and issued a title Deed of the suit property to the 1st Defendant on 12th September, 2014, indicated that he was a stranger to such entry. In particular, Mr. Ngetich upon being shown the said title deed and a green card, indicated that the title and the green card were forgeries and the signatures, handwriting and stamp impressions on the documents were not his. Annexed hereto and marked as "JRM-1" was a true copy of the statement recorded by Mr. Ngetich on 25th September, 2024. ii. One Mr. Josphat S. Mutisya, currently the Deputy County Commissioner, Msambweni Sub-County and the chairperson of Msambweni Land Control board meetings. She indicated that during the land board meeting of 12th June, 2024, an agenda in their business of the day was the suit property herein. Mr. Mutisya indicated that the 1st Defendant appeared before the board members as the purported registered owner and that after interrogations, the agenda was rejected by the board members on suspicion of land fraud. He also indicated that the 1st Defendant was asked to appear before the board after it carried out due diligence on the suit property but surprisingly, the 1st Defendant never went back to the land control board and the application was thereby rejected. Annexed hereto and marked as "JRM-2" was a true copy of the statement recorded by Mr. Mutisya on 9th October, 2024. iii. One Mr. Steve Mokaya, the current Land Registrar Kwale Land Registry, indicated that upon receiving a complaint from the Plaintifi herein regarding unlawful constructions on its land by persons unknown to it. Mr. Mokaya perused the parcel file and realized that the file had been tempered with, documents plucked out and the purported green card which he had use to efiect the transfer, was actually not the authentic one. Mr. Mokaya also indicated that after his analysis of the register, he concluded that indeed the Plaintifi/Applicant was the bona fide owner of the suit property which fact made him immediately write to the 1st and 2nd Defendants to surrender the title deed issued to the 2nd Defendant for immediate cancellation. Mr. Mokaya further indicated that he wrote to the Kenya Gazette for degazettment of the title deed issued to the 2nd Defendant herein. Annexed hereto and marked as "JRM - 3" was a true copy of the statement recorded by Mr. Mokaya on 4th October, 2024. f). The Plaintifi/Applicant was now apprehensive to use the documents in the custody of the intended Interested Party as a result of the said investigations. g). He was advised that the Intended Interested Party herein was a party whose presence before this Honourable Court was necessary in order to enable the court efiectually and completely adjudicate upon and settle all questions involved in this suit. h). The Defendants herein would sufier no prejudice if the instant application was allowed as prayed. i). Therefore, it was in the best interest of justice that the application was allowed and the orders sought be granted as prayed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 11

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31. However, this application though served upon all parties, it never elicited any responses. Subsequently, by consensus the Respondents indicated that they would not be opposing the application. Therefore, the application was allowed as prayed. VIII. Submissions 32. On 18th March 2025 while all the parties were present in Court, they were directed to have both applications dated 10th March 2025 and 9th October 2024 be disposed of simultaneously by way of written submissions. Pursuant to that, all the parties complied. Thus, the Court proceeded to reserve the ruling on its merit to be delivered on Notice. A. The Written Submissions by the 2nd and 3rd Defendants 33. 34. The submissions were made in support of the 2nd Defendant/Applicant’s Notice of Motion Application dated 10th March, 2025. They were dated 3rd April, 2025 and by the Law firm of Messrs. Chimera Kamotho & Company Advocates. The 2nd and 3rd Defendants stated that they would rely on the following pleadings in opposition to the Application: a. The 3rd Defendant’s Replying Afidavit dated 12th November, 2024. b. The Supporting Afidavit sworn by Florian Wunderlich dated 10th March 2025. c. The 2nd Defendant’s List of Documents dated 2nd April 2025. d. These submissions. e. The List and Bundle of Authorities filed alongside these submissions. The Learned Counsel identified the following issues arise for determination by this Honourable Court:a. Whether the 2nd Defendant/Applicant’s Application was merited. b. Whether the Applicant was entitled to the orders sought in the Application; and c. Who should bear costs. 35. On whether status quo should be maintained. The Learned Counsel made reference to the Black's Law Dictionary which defines status quo ante to mean: “the state of afiairs that existed before a specific event or situation, essentially the previous or last uncontested state”. That from the onset, the 2nd Defendant/ Respondent was and still is the legal, lawfully and the undisputed current registered proprietor of all that piece of land known as Kwale/Galu Kinondo/27 as evidenced by Annexures in the Replying Afidavit of Amina Fundi Chidzuga. 36. That the 2nd Defendant is the bona fide purchaser for value having purchased the property from the 1st Defendant for the value of a sum of Kenya Shillings One Nineteen Million (Kshs. 119,000,000.00/ =) as evidenced by the Sale Agreement dated 9th May 2024. That consequently, the 2nd Defendant followed due process and the Land Registrar issued a clean title deed of the property and thereafter took reasonable steps to develop the suit property by investing approximately a sum of Kenya Shillings Eight Million (Kshs. 8,000,000.00/-) in construction. 37. The Learned Counsel submitted that status quo ante orders were ancillary orders for preserving the situation as it exceeded pending proceedings which were crucial to maintaining stability and preventing further injustice and ensures that any potential harm to the Applicant was mitigated https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 12

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pending a full hearing on the merits. The Learned Counsel humbly submitted that the status quo ante obtaining prior to the issuance of the Order dated 11th October 2024 be restored. To buttress its point, reference was made to the holding in the case of “Nyutu Agrovet Limited – Versus - Kahawa Nyumu Estate Limited [2003] eKLR”, where the court emphasized that status quo ante orders are crucial to maintaining stability and preventing irreversible harm pending the resolution of disputes. 38. Further, in the case of “Kenya Airline Pilots Association (KALPA) – Versus - Co-operative Bank of Kenya Limited & another [2020] eKLR”, it was stated as follows: “ ...By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.” 39. Towards the same legal position, the Learned Counsel cited several other authorities as listed here below:a. Fatuma Abdi Jillo – Versus - Kuro Lengesen & another [2021] b. Republic – Versus - National Environment Tribunal, Ex-parte Palm Homes Limited & Another [2013] eKLR c. TSS Spinning & Weaving; Company Limited – Versus - NIC Bank Limited & Another [2020] eKLR; d. Wangui & Another – Versus - Home Plus Realtors Limited & Another (Environment and Land Appeal E079 of 2023) [2024] KEELC 3459 (KLR). 40. The parties submitted that the grant of the Order dated 11th October 2024 was done in violation of the 2nd Defendant/Respondent’s right to own property as envisioned under the provision of Article 65 of the Constitution of Kenya 2010 and limitation of access of the 2nd and 3rd Defendants to the suit property is illegal and therefore there is need to restore the 2nd Defendant back to its initial position to ensure that the loss already sufiered by the 2nd Defendant/Applicant is capable of being remedied before it was late and became irreparable. 41. Further, that the Order dated 11th October 2024 was obtained ex parte through misinformation and concealment of material facts, to wit, prior to obtaining and service of the Order dated 11th October 2024 upon the 2nd Defendant/Applicant, the 2nd Defendant’s workmen on the site were arrested on 9th October 2024. 42. According to counsel, it is trite that when an Applicant approaches Court vide an ex-parte application, there is a compelling duty on the Applicant to make a full and fair disclosure of all material facts. The Court was invited to seek guidance from the case of:- “Bahadurali Ebrahim Shamji – Versus - Al Noor Jamal & 2 Others Civil Appeal No. 210 of 1997” where the Court of Appeal while dealing with the gravity of non-disclosure expressed itself thus:“ It is perfectly well settled that a person who makes an ex parte application to the Court- that is to say, in the absence of the person who will be afiected by that which the Court is asked to do - is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 13

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he may have already obtained by him. That is perfectly plain and requires no authority to justify it." 43. Also that the Orders dated 11th October 2024 issued Ex - Parte were on the basis of allegations of fraud by the 2nd and 3rd Defendants herein. It was stated that all the material presented before the Court indicated that the Plaintifi/Respondent had neither possession nor ownership of the suit land. That it was the 2nd Defendant/Applicant who had both ownership and possession of the suit land. 44. The Learned Counsel asserted that it is trite that fraud is a serious charge which must be strictly proved and allegations of such fraud as made by the Plaintifi/Respondent in this interlocutory stage must pass on to the stage of full trial, for proper proof. Reference was made to the holding in the case of:- “Soy Developers Limited & 5 Others – Versus - Cyrus Shakhalaga Khwa Jirongo & 7 Others; Soy Developers Limited & 4 Others (Interested Parties) [2019] eKLR” where the Court of Appeal at Nairobi while dealing with the issue of proving fraud stated that:“ In principle, fraud is not proved by documentary evidence, viva voce evidence tested through cross-examination is a critical component in proving or disproving an allegation of fraud. It is not the duty of a court to evaluate veracity of the contents of disputed documentary evidence that has not been tested through cross-examination.” 45. It was the 2nd and 3rd Respondent’s contention that Plaintifi/Respondent prior to the issuance of the orders dated 11th October 2024 had not certified itself of a prima facie case as it was their assertion that where there are competing titles over a parcel of land, the issue of which is valid is to be decided at full trial, and that in such circumstances no prima facie can be established in terms of the decision in “Giella – Versus - Cassman Brown & Co Limited (1973)”. 46. That the balance of convenience tilted in the favour of the 2nd Defendant/Applicant to preserve its rights pending the final determination of this Suit as she had actual possession and occupation of the suit property. It was submitted that the Orders dated 11th October 2024 should be set aside and orders of status quo ante obtained prior to the issuance of the Order dated 11th October 2024 be restored. 47. On whether the applicant was entitled to the orders sought in the Application. The 2nd and 3rd Defendant/Respondents submitted that the Applicant was not deserving of Orders sought for the following reasons: The Applicant had not demonstrated that there was a prima facie case with probable success; Failure to grant the orders would not cause irreparable harm to the Applicant that could not be compensated by payment of damages if anything the 2nd Respondent stood to sufier irreparable harm that could not be compensated by damages; and the balance of convenience tilted more in favour of the 2nd Defendant/Respondent and not the Plaintifi/Applicant in not granting the injunctive reliefs sought. 48. On who should bear costs. It was submitted that the general rule is that costs follow event and the successful party would be awarded costs unless the court for good reason orders otherwise. The court was referred to the provision of Section 27 of the Civil Procedure Act, Cap. 21 which provides for costs as follows:“ (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 14

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what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. 49. It was submitted that the position of costs as above referred is settled in Kenya’s jurisprudence as articulated in various cases by courts. For instance, in the case of “Republic – Versus - Rosemary Wairimu Munene, Ex - Parte Applicant Ihururu Dairy Farmers Co - operatives Society Ltd, Judicial Review No. 6 of 2014” which was cited with approval in the case of “Cecilia Karuru Ngayu – Versus - Barclays Bank of Kenya & another (2016) eKLR” the Court held as follows with regard to costs: “ The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event.... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.” 50. It was prayed that costs be awarded to the 2nd & 3rd Defendants/Applicants and the application dated 10th March 2025 thus be allowed with costs. B. The 1st Written Submissions by the Plaintifis 51. In support of the Notice of Motion Application dated 9th October, 2024, the Plaintifi through the Law firm of Messrs. Echom Asiro & Co. Advocates filed written submissions dated 4th March, 2025. The Learned Counsel submitted that on 11th October, 2024 the court issued ex parte orders of temporary injunction against the said Defendants which orders are subsisting. 52. That the 1st Defendant had never entered appearance despite substituted service by dint of leave granted by this Honourable Court on 17th October, 2024. The 2nd and 3rd Defendants entered appearance and opposed the said Application vide a Replying Afidavit sworn by one Amina Fundi Chidzuga on 12th November, 2024. Consequently, the Plaintifi had since filed a Supplementary Afidavit sworn by one Jitesh Ramji Mepani on 27th November, 2024. 53. The Plaintifi identified the only issue for determination as whether the Plaintifi had met the threshold for the grant of temporary injunction as laid down in “the locus classicus case” of “Giella – Versus Cassman Brown & Co. Ltd (Supra). It was submitted that the conditions precedent for the grant of an interlocutory injunction is now well settled in the said case where the Court expressed itself thus:“ The Conditions for the grant of interlocutory injunctions are now 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 sufier irreparable harm which would not be adequately compensated by an award of damages and thirdly, if the court is in doubt, it will decide an application on a balance of convenience.” 54. It was the Plaintifi’s submission that it had established a prima facie case with a probability of success. That a prima facie case was defined in the case of “Mrao – Versus - First American Bank of Kenya https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 15

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Limited and 2 others C.A. Civil Appeal No. 39 Of 2002 [2000] eKLR as a case 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. 55. Learned Counsel submitted that the crux of the Plaintifi’s case was it being the bona fide registered owner of the suit land. That on or about 23rd May, 2008, the beneficial owners of Baobab Diagnostics Limited, Robert Philip Ashworth and Michael Lewis Somen sold the company vide a sales of shares agreement to Murjibhai Lalji Pindoria, Kishor Murji Pindolia, and Jyotiprasad Jivrambhai Thakkar which sale was inclusive of the suit land at a consideration of a sum of Kenya Shillings Twelve Million Nine Thousand and Eight Five Hundred and Four (Kshs. 12,908,504/=). That the Plaintifi then requested to have the change of name efiected on the title document and the same was lodged on 9th June, 2008 whereupon a new certificate was issued in this regard on the even date. 56. It was the Plaintifi’s submission that over the years, it had since conducted a number of oficial searches on the suit land. The said searches had always revealed that the suit land was duly registered in the name of Baobab Diagnostics Limited with a freehold tenure. 57. In addition, over the years, the Plaintifi/Applicant had from the very onset undertaken to pay all the requisite Land rates as required by law to the defunct County Council of Kwale and the now County Government of Kwale. 58. The Plaintifi averred that the genesis of this dispute was birthed on or about August, 2024 when the Plaintifi/Applicant discovered that someone unknown to them and without their consent whatsoever, had gained access to the land, raised a boundary wall and is now undertaking construction and/or development on the said suit land. The Plaintifi/Applicant in a bid to protect its proprietary interests in the suit land, on 30th August, 2024, wrote to the Land Registrar of the County of Kwale, with a view of knowing the status of the suit land. 59. That the County Land Registrar immediately issued a notice to place a caution on the suit land and supplied the Plaintifi/Applicant with all transfer documents that were used to secure a parallel registration. These set of documents revealed that the 1st Defendant/Respondent did transfer the suit land to the 2nd Defendant/Respondent through a sale. Additionally, the Plaintifi/Applicant also inquired from the Deputy County Commissioner, Msambweni Sub-County on the suspicious transactions amongst the 1st, 2nd and 3rd Defendants herein with regard to the suit land and learnt that, the application for land control board consent tabled on 12th June, 2024 was rejected pending investigation. 60. That still on acting upon the Plaintifi’s/Applicant/’s letter dated 30th August, 2024, the Kwale County Land Registrar did follow up on the Plaintifi’s complaint and issued notices to the 1st and 2nd Defendants/Respondents to return the title deeds issued in their names as well as writing to the Government Printer for de-gazettement of the same. 61. That the trail of transactions between the 1st Defendant and the 2nd and 3rd Defendant, on a prima facie basis, depict transactions that were fraudulent and illegal thus attracting an action from the Kwale County Land Registrar for the titles issued to the 1st and 2nd Defendants be degazetted. That the parallel registration as secured by the 1st Defendant was later transferred to the 2nd Defendant. That in a bid to justify their transaction, the 2nd and 3rd Defendants through the Replying Afidavit sworn by the 3rd Defendant, allege that the 2nd Defendant purchased the suit land for value from the 1st Defendant and that allegedly the 2nd Defendant undertook extensive due diligence to ascertain the status of the suit land. The 2nd Defendant had alleged that it was the registered proprietor of the suit land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 16

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62. It was contended that no good title passed from the 1st Defendant to the 2nd Defendant as the said 1st Defendant fraudulently, illegally and unlawfully secured registration in her name which she later transferred to the 2nd Defendant and therefore no good title could pass from the 1st Defendant to the 2nd Defendant. 63. That the 2nd and 3rd Defendants had attempted to fault the actions of the Kwale County Land Registrar following the Plaintifi’s/Applicant’s letter dated 30th September, 2024 when it was very clear from the Registrar, being the custodian of the Land Register, that the 1st Defendant was actually not the bona fide owner of the land and that some ownership documents had been plucked ofi the record and forged ones planted. 64. The Learned Counsel opined that it is trite law that for one to be considered a bona fide purchaser for value without notice, as the 2nd Defendant seeks to be considered, one needed to first prove that they acquired a valid and legal title which the 2nd Defendant herein had failed to account for, at least on a prima facie basis. To buttress on this point, reference was made to the Court of Appeal in the case of:- “Samuel Kamere – Versus - Lands Registrar, Kajiado Civil Appeal No 28 of 2005 [2015] eKLR” which case stated as follows:“ ..........in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property...” 65. Further reference was made to the Court of Appeal when it had an opportunity to deal with the issue of competing titles in the case of “Munyu Maina – Versus - Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR”, where it held:“ where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register”. 66. The Learned Counsel submitted that the 2nd Defendant should not be heard saying that it undertook due diligence to ascertain the status of the suit land and that the alleged sale was above board when in real sense, the 2nd Defendant has at the very least, failed to produce any land rate clearance certificate that it obtained from the 1st Defendant as part of completion documents. 67. Further that the allegations that the 2nd defendant’s workers had been attacked and arrested were unsubstantiated allegations and could not vouch for correctness or otherwise of the same. The Plaintifi asked for the court to grant a temporary injunction for prevention against a further and continued violation pending the hearing and determination of this suit on merit. That a prima facie case had been established. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 17

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68. On irreparable harm reference was made to the case of:- “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR)” where the Court of Appeal while delving into the second limb on grant of temporary injunctions opined that:“ If the Applicant establishes a prima facie case that alone is not suficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the Respondent will sufier, in the event the injunction is not granted, will be irreparable. 69. That the 2nd and 3rd Defendants/Respondents after securing the fraudulent and illegal transfer from the 1st Defendant herein, started construction and/or development on the suit land. The Plaintifi maintained that these constructions were illegal and unlawful as no good title passed from the 1st Defendant to the 2nd Defendant as urged herein above. 70. That these unlawful and illegal constructions on the suit land had threatened and continue to threaten the proprietary interests of the Plaintifi/Applicant in the suit land. It was submitted that should the Honourable Court refuse to grant an order of temporary injunction pending the hearing of the suit and the 2nd and 3rd Defendants embark on their illegal constructions; the Plaintifi herein would have been deprived of its property which loss cannot be adequately compensated by an award of damages. 71. Lastly, the Learned Counsel submitted on balance of convenience. He stated that in the event that the Court would be in doubt on whether to grant the injunction as sought then the inconvenience to the applicant if interlocutory injunction was refused would be balanced and compared with that of the Respondent, if it is granted. Reference was made in the case of “Paul Gitonga Wanjau – Versus Gathuthis Tea Factor Company Limited 2 others (2016) eKLR”, where the court while dealing with the issue on balance of convenience expressed itself thus: “ Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would sufier if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will sufier the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may infiuence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies”. 72. It was the Plaintifi’s submission that the balance of convenience tilted in favour of granting the injunction as sought. That the Plaintifi had shown it had a strong case on the merits and that it would sufier irreparable harm, as already urged above. The Plaintifi had thus shown that the inconvenience caused to it would be greater than that which may be caused to the Defendants if the injunction sought would not issue. It was submitted that the Plaintifi’s application was at best meritorious and that the same ought to be allowed. C. The 2nd Written Submissions by the Plaintifi. 73. The Plaintifi filed their 2nd Written submissions in opposition to 2nd Defendant’s Application dated 10th March, 2025. The Plaintifi identified one issue for determination and which was whether an order to restore status quo ante obtaining prior to the issuance of the order dated 11th October, 2024 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 18

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and an order permitting the 2nd Defendant to proceed with undertaking any further construction or development on the suit property, should issue. 74. The Learned Counsel for the Plaintifi continued to emphasize that it is the bona fide registered owner of the suit property and that the sale transaction between the 1st and 2nd Defendants was tainted with forgery, fraud, illegality and unlawfulness. 75. Reference was made to Mr. Wunderlich’s supporting afidavit where he averred that the 2nd Defendant was the registered owner of the suit property and that had taken reasonable steps in developing the property. Against these allegations, the Plaintifi maintained that it is the bona fide registered owner of the suit property as evidenced by a copy of its title deed marked as annexure “JRM-1” and that in addition, the Plaintifi had religiously paid for all the requisite Land rates as deponed at Paragraph 9 of Jitesh’s Supporting Afidavit dated 9th October, 2024. 76. The Plaintifi further submitted that the land rate demand notice for the year 2025 had already been issued to its name and the same had been duly paid for as evidenced by invoice/demand notice dated 18th January, 2025 and a payment receipt dated 14th March, 2025 marked as annexure “JRM - 2”. 77. The Plaintifi submitted that following the alleged sale transaction between the 1st and 2nd Defendants, no clean title deed of the suit property could be issued by the Land Registrar as the said Registrar upon receiving a complaint Petition from the Plaintifi, renounced the titles issued to the 1st Defendant and subsequently to the 2nd Defendant as duly evidenced by copies of letters by the Land Registrar marked as annexure “JRM - 8”. Moreover, a number of key Public Oficers had since recorded their statements with the Directorate of criminal Investigation, Kwale (DCI) with regards to the transactions between the 1st and 2nd Defendants, which statements revealed elements of fraud and forgery. The Plaintifi reiterated the statements made by the said public oficers as had been captured in the afidavit in opposing the application dated 10th March 2025 by Jitesh Menah. 78. The Plaintifi further submitted that the dispute in this suit entails rival parties i.e. the Plaintifi and the 2nd Defendant, having rival title deeds to the suit property hence parallel proprietary interests in the suit property. In that regard, the Plaintifi contended that it was thus not a question of which party had invested what in the suit property but rather, each party was required to go beyond the instrument and prove the legality of how it acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. 79. Reference was made to the Court of Appeal while dealing with competing titles in the case of “Munyu Maina – Versus - Hiram Gathiha Maina (Supra) held: when a registered proprietor’s root of title is under challenge, it is not suficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. 80. The Learned Counsel submitted that amongst the grounds in support of the Application, the 2nd Defendant had alleged at ground number 3 that the Plaintifi misled this Honourable Court in seeking the orders of 11th October, 2024 as the 2nd Defendant employees were allegedly arrested on 9th October, 2024 before the issuance of the said orders. That against these unsubstantiated claims, the Plaintifi has deponed through Mr. Jitesh’s Replying Afidavit at Paragraph 12 and submits herein that upon learning of the unlawful and illegal construction of the 2nd Defendant on the suit land, the Plaintifi reported the matter to Directorate of Criminal Investigations (DCI), Kwale and if any arrests were done, the Plaintifi has no mandate and/or control of how the Directorate carries out their mandate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 19

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81. The Plaintifi maintained that the matter was still pending investigation at the DCI, Headquarters. In furtherance, the Plaintifi had annexed a number of witness statements recorded with the DCI by former Land Registrar of Kwale County, current Land Registrar of Kwale County and Deputy County Commissioner, Msambweni Sub - County, as annexures “JRM - 3”, “JRM - 4” and “JRM 5” respectively. These witness statements, the Plaintifi submitted, formed the basis of the Plaintifi’s subsequent Application dated 22nd April, 2025 slated for inter partes hearing on 8th July, 2025. 82. On whether this Honourable Court should issue an order to restore status quo ante obtaining prior to the issuance of the order dated 11th October, 2024, the Plaintifi submitted that orders of status quo ante is an ancillary remedy aimed at restoring the position of the parties to how it existed prior to the decision complained of. Indeed, the court in the case of “In re Estate of Owour Onyango Omoka (Deceased) (Miscellaneous Succession Cause 26 of 2021) [2023] KEHC 3359 (KLR) (25 April 2023) (Ruling) has defined status quo ante to mean: ‘Status quo ante’ in Black’s Law Dictionary means: “the state that existed before something else (being discussed) occurred”. 83. Therefore, in essence, the orders of status quo ante would mean that the 2nd Defendant be allowed to continue with construction on a land to which the Plaintifi herein was the bona fide owner. The Plaintifi herein had maintained from the very onset that the said construction as was started by the 2nd Defendant was unlawful, illegal and in contravention of its proprietary rights with regards to the suit land. In addition, the Plaintifi at Pages 6 to 8 strongly opposed the Orders of status quo ante which would essentially mean final determination of the rights of the parties herein with respect to the suit property without hearing the parties on merit, to the detriment of the Plaintifi. 84. It was the Plaintifi’s humble submission that in the unlikely event this Honourable Court grants the status quo ante orders, then there would be nothing left to litigate upon in this sense, if the 2nd Defendant was allowed to continue with construction on a land that was owned by the Plaintifi, what would remain of the main suit? In other terms, what more would remain for this Honourable Court to determine in the main suit? 85. The Learned Counsel while implored the Court to allow the Plaintifi’s Application dated 9th October, 2024 but urged it to dismiss the one by the 2nd Defendant Application dated 10th March, 2025 with costs. D. Analysis and Determination 86. I have carefully read and considered all the filed pleadings herein, the evidence adduced by the said pleadings, the written submissions on record, the cases cited herein by parties, the relevant provisions of the Constitution of Kenya, 2010 and statues. 87. This Honourable Court will still examine the facts [as they currently are] of the case and in order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has three [3] issues for its determination. These are: a. Whether the application dated 10th March 2025 is merited for grant of the status quo orders sought b. Whether the Plaintifi has met the threshold for grant of the injunctive orders sought in the application dated 9th October 2024 c. Who bears the costs of both applications? https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 20

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Issue No. a). Whether the application dated 10th March 2025 is merited for grant of the status quo orders sought 88. In determination of the first issue for determination as listed above, I wish to point out that it has been brought to the attention of the court that there exists a similar suit over the same subject matter and parties in the lower court. The said case is designated as “Kwale MC ELC /E055/2024 Galupaeonia Limited – Versus - Baobab Diagnostics Limited and 2 Others”. Fortunately, none of the parties herein have disputed the existence of the said suit. 89. It is further noted that the Plaintifi herein is contesting the pecuniary jurisdiction of the lower court to handle the dispute as has been stated above herein. This court is meant to understand that the lower court did issue injunctive orders against the Plaintifi and which are presumably still in place. The suit before the lower court was instituted by the 2nd and 3rd Defendants herein. 90. The application dated 10th March 2025 is similarly brought before court by the 2nd and 3rd Defendants. They seek that this court does issue status quo orders against the Plaintifi and are specifically seeking for unconditional possession and occupation of the suit property. From the pleadings before court, the court has been able to gather that there are ongoing developments on the suit property, infact the 3rd Defendant has made it clear that at the time of instituting this suit, the ongoing developments had already used a sum of Kenya Shillings Eight Million (Kshs. 8,000,000/-) only. 91. The court is has considered all the material placed before it and is alive to the fact that a suit similar to what is before it is also before the lower court. I believe that in the event that this court indulges further in giving the Respondents audience, then the same will be against the principles of the subjudice doctrine. The sub - judice principle is captured under the provision of Section 6 of the Civil Procedure Act, cap. 21 which provides as follows: “ 6. 92. No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title.” The Supreme Court of Kenya in the case of:- “Kenya National Commission on Human Rights – Versus - Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR”, had occasion to pronounce itself on the subject of subjudice. It aptly stated: “ The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing confiicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 21

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93. From the foregoing it is safe to state that the 2nd and 3rd Respondents are forum shopping or rather abusing the process of the court in engaging in filing of multiple applications bearing in mind that the lower court suit is still alive. In the words of E. K Makori Judge in the case of:- “Kinuthia – Versus Kanyi & another (Environment & Land Case E007 of 2023) [2024] KEELC 1625 (KLR) (20 March 2024) (Ruling) the said actions amount to proliferation and convolution of suits. 94. I wish to add that the practice of filing new and separate cases/applications despite the existence of a similar case relating to the same subject matter amounts to an abuse of the court process. This kind of practice leads to unnecessary backlog of cases and a waste of the precious judicial time. In the case of “Muchanga Investments Limited – Versus - Safaris Unlimited (Africa) Limited & 2 others Civil Appeal No. 25 of 2002 (2009) eKLR 229”, the court of appeal stated as follows:“ The term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the eficient and efiective administration of justice. It is a term generally applied to a proceeding, which is wanting in bonafides and frivolous, vexatious or oppressive’. 95. This court opines that there is a nexus between the lower court case in “Kwale MC ELC /E055/2024 Galupaeonia Limited – Versus - Baobab Diagnostics Limited and 2 Others” and the instant suit. The 2nd and 3rd Respondents have already benefited from the same by virtue of the injunctive orders granted before the lower court. However, the same were superseded by the injunctive orders granted on 11th October 2024 by this court. 96. With all the above in mind, the court is of the opinion that the 2nd and 3rd Respondents have not convinced the court in terms of having its audience given that they already have approached the lower court in the same matter. 97. The court while deliberating on what orders would be proper to issue at this point bears in mind that the issue of abuse of the court process is deliberate through the 1st and 2nd Respondents actions of seeking for status quo orders. However, the said Respondents actions and the consequences that come with them cannot be imposed upon the Plaintifi herein. Issue No. b). Whether the Plaintifi has met the threshold for grant of the injunctive orders sought in the application dated 9th October 2024 98. The Plaintifi did approach the court separately seeking injunctive orders against the Respondents herein. In cementing its case several issues have come to light and which include the two title deeds over the suit property herein and the alleged fraud in the 2nd registration/ title held by the Respondents. 99. It is noted that the 2nd and 3rd Respondents had initially in the application for status quo sought to be allowed to continue with the developments on the suit property. The court is not only cautious but conscious of the fact that the suit property holds two separate titles with the plaintifi’s title coming first in line. However, this does not automatically mean that they are the legitimate/lawful proprietors of the suit property. This are issues that can only be established after a full hearing. 100. However, pending that hearing, the court sees the need to protect the property which is the substratum of the suit. the court will therefore delve into determination of the second issue and which was with regards to the application dated 9th October 2024. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 22

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101. The substantive law on this matter is Order 40 Rule 1(a) of the Civil Procedure Rules 2010 which provides: “ Where in any suit it is proved by afidavit 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 wrongly sold in execution of a decree ... 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.” 102. It is trite that temporary injunctions are granted upon the satisfaction of tripartite conditions to wit: whether the Applicant has established a prima facie case; whether upon examination of the prevailing circumstances it becomes clear that the Applicant stands to sufier irreparable loss that the Respondent would be hard pressed to assuage by an award of damages and finally, where there was still doubt, it would be in order to consider in who’s favour the balance of convenience tilted. These principles were established in “Giella – Versus - Cassman Brown (Supra). 103. While discussing the conditions precedent to obtaining an Order of injunctive relief, the Court of Appeal in the case of: “Nguruman Ltd – Versus - Jan Bonde Nielsen & 2 Others, [2014] eKLR” observed that: “ 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. 104. Bearing the above in mind, the first port of call for this court is to determine whether the Applicants have established a prima facie case. A prima facie case was defined in the case of:- “Mrao Ltd – Versus - First American Bank of Kenya Ltd (Supra), where Bosire, JA stated 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.” 105. The Court of Appeal deliberating what amounted to a prima facie case in Nguruman (Supra) made the following comments:- “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.” 106. The court notes that the Plaintifi has attached a copy of the title deed to the suit property in its name. The Plaintifi has given a chronology of events of how it came into possession of the property and the court has keenly gone through the same annextures. However, it is noted that among the key issues of contention in this matter is the ownership of the suit property and the validity of the title and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 23

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documents produced in support of the allegations of ownership presented by the 2nd Respondent. It has also been deponed that the Respondent is also claiming ownership of the suit property as a bonafide purchaser for value. With these facts in mind, a prima facie case has been established. 107. On the second aspect of irreparable damage and loss, the Plaintifi has confirmed that indeed there are ongoing developments on the suit property. This has been confirmed by the 2nd Respondent and the 3rd Respondent in the afidavits sworn before court. As to whether the plaintifi is bound to sufier irreparable damage and loss in the event that the orders sought are not granted, I first wish to reiterate the dictum of the court in the case of:- “Robert Mugo Wa Karanja – Versus - Ecobank (Kenya) Limited & Another [2019) eKLR” where the court in deciding on an injunction application stated:“ circumstances for consideration before granting a temporary injunction under Order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts…...” 108. The Plaintifi is apprehensive that in the event that the Respondents actions are not stopped, it is probably going to lose its property. I have seen photographs annexed by the Plaintifi herein showing the ongoing construction, further I am reminded of the averments by the 3rd Respondent that so far a sum of Kenya Shillings Eight million (Kshs. 8,000,000/=) has been spent in developing the suit property, I believe that the second threshold for grant of the orders sought has been made. It is imperative of the court to protect the plaintifi from lose and to further preserve the suit property pending the hearing and determination of the suit. 109. From the foregoing, the balance of convenience automatically tilted towards the applicants. The case of:- “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (2018) EKLR” defined the concept of balance of convenience as: “ The meaning of balance of convenience will favour of the Plaintifi' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintifis, the inconvenience caused to the Plaintifi would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintifis to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintifi who will sufier. In other words, the Plaintifi has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”. 110. I am guided further by the holding in the case of “Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR” where the Learned Judge ofiered further elaboration on what is meant by balance of convenience and stated:“ The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 24

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Issue No. c). Who will bear the costs of the applications 111. It is trite law that the issue of costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of any legal action or proceedings in any litigation. The provision of Section 27 of the Civil Procedure Act provides: 27 (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers; provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct. 112. In the case of: “Republic – Versus - Rosemary Wairimu Munene;, Ex - Parte Applicant – Versus Ihururu Dairy Farmers Co-operative Society Limited Judicial Review application no 6 of 2014” court held as follows: “ The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.’’ 113. It is trite that the same follow an event. However, based on the circumstances of the case, the court opines that the same be in the cause. E. Conclusion & Finding 114. Before penning of, I wish to point out that at this point, the court cannot grant orders that may seem to have some kind of finality in their nature as the suit is still at an interlocutory stage parties having not been heard. I say this in reference to the order sought for demolition of the structures already put up by the respondents. In my opinion orders of demolition can only sufice after both parties have been heard. 115. The court therefore proceeds to make the following orders; The application dated 9th October 2024 is hereby allowed in the following terms; a. That this Honourable Court be and is hereby pleased to issue an order of temporary injunction against the 1st, 2nd and 3rd Defendants/Respondents, their agents, servants and all those claiming under them from entering, accessing, leasing, selling, transferring or in any other way interfering with land Title No. Kwale/Galu Kinondo/27 pending the hearing and determination of this suit. b. That the Notice of Motion application dated 10th March 2025 be and is hereby dismissed for lack in merit. c. That by the consensus of the parties herein the Notice of Motion application dated 22nd April, 2025 to have the Director of Criminal Investigation (DCI) headquarters be joined as parties in this matter be and is hereby allowed as prayed and the orders sought granted accordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 25

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d. That for expediency sake, there be a mention on 12th November, 2025 for purposes of conducting a Pre – Trial Conference pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There shall be the hearing of the matter on 24th February, 2026. e. That costs of both applications shall be in the cause. It is ordered accordingly. RULING DELIVERED THROUGH THE MICRO - SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 29TH DAY OF SEPTEMBER 2025 ……………………………… HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT KWALE Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. M/s. Echom Advocate for the Plaintifis/Applicants. c. Mr. Bulowa Advocate for the 1st Defendant. d. M/s. Bosire Advocate holding brief for Dr. Ekuru Aukot Advocate for the 2nd & 3rd Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29 26

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