Nirestein & another v Taga & 3 others (Environment and Land Case E003 of 2024) [2025] KEELC 8105 (KLR)

with the 1st Applicant and the stafiers at Mara Napa Luxury Camp, pending the hearing and determination of the suit. iv. For an injunction to restrain the OCPDs of Talek and Mulot Police Stations from harassing, threatening, accosting, interfering with, arresting, or prosecuting the Applicants or their stafi in relation to their lawful occupation of the Mara Napa camp, on account of their legal occupation and possession of the suit properties as they undertake their duties within the camp, pending the hearing and determination of the suit. v. That the court do issue an order directing the restoring the status quo ante, to the efiect that the Applicants together with Mara Napa Luxury Camp Stafi to continue being in possession and management of the Mara Napa Luxury Camp situated on the suit property pending the hearing and determination of the suit. vi. An order of injunction to restrain the Defendants whether by themselves, their agents, servants, representatives and howsoever, otherwise from entering, encroaching and / or interfering in whatsoever manner with the premises of Mara Napa Camp and the suit property, pending the hearing and determination of the suit. vii. In the alternative, the applicants prayed for the appointment of an independent manager to take possession, control, and management of the camp pending the hearing and determination of the suit. viii. That the County Commander, Narok County, under the supervision of the Inspector General of Police, ensures compliance with the orders sought. ix. That the costs of the application be provided for. 3. This Application is premised on various grounds as enumerated on the face of the said Application, and on the Supporting Afidavit of the 1st Plaintifi/ Applicant Michelle Schmidt Nirenstein. 4. Among the grounds in support of the Application are; the dispute herein is over the ownership of Cis-Mara/Talek 406,407 and 408(herein suit property), upon which the Mara Napa Luxury Camp, was established and is operated; Further that the 1st Plaintifi/Applicant Michelle Schmidt Nirenstein solely funded the acquisition, construction, and running of the Mara Napa Luxury Camp, for the benefit of the Maasai community. 5. In her Supporting Afidavit, 1st Plaintifi/Applicant averred that the controversy between the parties herein started after she filed a suit on 16th February 2024, wherein the applicants sought for injunctive orders against the Defendants/Respondents. However, the Defendants/Respondents have persistently attempted to take over the Mara Napa Luxury Camp, unlawfully, resorting to threats, violence, against the 1st Plaintifi/Applicant and anyone perceived to be in Applicants camp. 6. The 1st Plaintifi/Applicant recounted a series of escalating incidents — including invasions by the 1st Defendant aided by Police from multiple Police Stations within the area, violent confrontations, harassment, and the filing of criminal charges allegedly intended to intimidate the Plaintifis/ Applicants and their stafi. 7. It was her contention that her earlier application for injunctive relief was granted by the court (on 23rd May 2024), preserving the suit property from any interference howsoever by the Defendants. However, the Defendants/Respondents equally filed a suit in HCCC No. E001 of 2024 Friends of Maasai Mara Ltd & another vs Michelle Nirestein against 1st Applicant where they sought for various orders inter https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 2

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alia a permanent injunction to restrain the Plaintifi/ Applicant herein from accessing or running the Mara Napa Luxury Camp, which orders were declined by the High Court. 8. However, the 1st Defendant/ Respondent herein defied the Court Orders of injunction that were issued by this court, and have continued with harassment, and orchestrated illegal, arrests of stafiers, and also frustrating lawful court orders. 9. The Applicants further contended that the Defendants/Respondents have not only violated existing injunctive orders, but have also used the criminal justice system to settle a civil dispute. It is their claim that Police Oficers have set up a camp within the Mara Napa premises to bar access by the Plaintifis/ Applicants and stafi, while carting away movable assets. 10. Further, that given the ongoing violations, threats to life, and contempt of court, the Applicants urged the Court to urgently intervene by issuing the injunctive and preservatory orders sought in the instant Notice of Motion Application to maintain the status quo ante, and prevent further loss, harassment, or damage pending the hearing and determination of the main suit. 11. The deponent of the Supporting Afidavit is an American national residing in Kenya, who alleged that she funded the entire project, including the purchase of the suit property being Cis-Mara/Talek 406,407 and 408, construction of the Mara Napa Luxury camp, acquisition of assets, and operational costs until 13th May 2025. 12. It was her further contention that she resided on the suit property until December 2024, when circumstances forced her to leave. She also contended that her intention of establishing the Camp was solely for the benefit of the Maasai community, as evidenced by the registration of the non-profit organization in the United States. 13. The deponent also highlighted the deterioration of relationship between the parties herein, which has culminated in threats, harassment, and violence against the 1st Applicant and her stafi. Further, that the 1st Defendant allegedly violated court orders, harassed the Applicants, and used Police oficers to intimidate and evict them from the Mara Napa Luxury Camp. 14. The 1st Applicant specified the incidents and detailed them as follows; that the 1st Defendant raided the Mara Napa Luxury Camp with 27 Police Oficers on 6th June 2024, breaking the gate, brandishing guns, and intimidating stafi. 15. That when the 1st Applicant attempted to file complaints at Talek Police Station, the Police oficers at the said Station refused to record her statements or issue an OB number, allegedly due to collusion with the Defendants. 16. Further, the 1st Defendant continued his threats to cause a breach of peace, by the filing of Counter application seeking eviction orders, and that was an alleged manipulation of the judicial system by the 1st Defendant, since he obtained irregular ex parte orders from a subordinate court in MCCCMISC No. E004 of 2024, which contradicted orders issued by superior courts. 17. She contended that these Orders were used to evict the Mara Napa Luxury Camp stafi, cart away assets, and establish a Police Camp on the property to prevent access by the Plaintifis/Applicants. The deponent accused the Defendants/Respondents of forum shopping, material non-disclosure, and violating the orders of superior courts. 18. The 1st Plaintifi/Applicant also contended that the socio-economic impact of the Defendants’ actions, has rendered the stafi jobless and homeless, violating their rights under Article 43 of the Constitution https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 3

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of Kenya. She expressed her loss of confidence in the security agencies, citing threats to her life, and the lives of her stafi. 19. Further, the deponent recounted incidents of harassment, including threatening messages, physical attacks, and the use of the criminal justice system to settle the civil dispute. She referred to the ruling of the Court of Appeal in Shimmers Plaza Limited vs. National Bank of Kenya Limited [2015] eKLR, which emphasized the importance of courts upholding their authority, and punishing those who disobey court orders to prevent anarchy. 20. The Application is vehemently opposed by the Defendants/respondents herein vide their Grounds of Opposition dated 4th June 2025; wherein they contended that prayers No.1 and 2 of the Plaintifis/ Applicants Notice of Motion Application are already covered by existing preservatory orders, and the Plaintifis/Applicants have failed to prove any breach or provide an inventory of movable assets, rendering the prayers hollow. 21. Further that prayers No. 3, 4, 7, and 8 are untenable as equitable orders of injunctions act in persona, and cannot be issued against entities like “OCPD Mulot Police Station” and “OCPD Talek Police Station,” who are not parties. The Defendants/Respondents assert that it is the duty of the Police to maintain law and order, and any serious allegation of abuse of power must be brought through proper judicial review or constitutional proceedings. 22. The Defendants also contended that prayers No 5, 6, 11, and 12 of the Applicants Application cannot be granted as the Defendants/Respondents are the legal and registered owners of Mara Napa Luxury Camp, and the land titles holder cannot be deprived of their rights without an adverse finding on their title, which cannot be determined at an interlocutory stage. 23. Further, that these prayers are also sub judice to Narok HC Constitutional Petition No. E003 of 2025, and therefore, this application improperly seeks to pre-empt the main suit concerning ownership, contrary to rule of natural justice and the right to fair hearing. That the 1st and 2nd Defendants/ Respondents being husband and wife, reside with their infant daughter on the part of the suit property, which constitutes their matrimonial home. 24. The Defendants/Respondents further contended that Prayer No 13, which seeks appointment of an independent manager, is claimed to be without legal basis, ultra vires the court, and likened to an extreme analogy of King Solomon’s case. The Defendants further alleged that the Plaintifis are engaging in forum shopping by filing multiple suits and applications, which suits seek similar orders, which constitutes abuse of court process. 25. While citing the case of Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR, the Defendants/Respondents contended that it is the duty of the court to prevent its process from being abused, and concluded that the Plaintifis/Applicants Notice of Motion Application is hopeless, fatally fiawed, and it ought to be dismissed with costs. 26. The instant Notice of Motion Application was canvassed by way of written submissions. The Plaintifis/ Applicants filed their written submissions through Okwach & Co Advocates, which submissions are dated 19th June 2025. It is the Applicants submissions that the Plaintifis/ Applicants' have sought various injunctive orders to protect their interests in the Mara Napa Luxury Camp, pending the hearing and determination of the suit. 27. The Plaintifis/Applicants, further submitted that they have sought for restraining orders to prevent the Defendants/ Respondents from removing assets, interfering with their stafi, and encroaching on the camp premises. They also sought mandatory injunctions to restore their possession and management https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 4

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of the camp, withdraw Police Oficers stationed there, and enforce compliance through the County Commander and Inspector General of Police. 28. In response to the Defendants/Respondents Grounds of Opposition, they submitted that they deserve the orders sought. Reliance was placed in the cases of Kennedy Otieno Odiyo & 12 Others vs Kenya Electricity Generating Company Limited [2010]eklr and ARJ Capital Limited vs Njeru & 3 Others. (ELC E041 OF 2022)[2024] KEELC 323(KLR), where the court held; “ From the authorities I have cited above, grounds of opposition are to be deemed as general averments and do not deny or respond to issues in an application. A preliminary objection and grounds of opposition though means of opposing an application, they are not to be used when one intends to deny allegations in an application. In my view a replying afidavit would best serve to deny issues raised in an application. It has been held that where a replying afidavit is not filed then in essence the averments in an application are deemed as uncontroverted and unchallenged. In considering the mode of opposition opted to by the respondents and the averments therein I find that the issues in the application are not rebutted and the application stands unopposed.” 29. The Plaintifis/Applicants set out the following issues for determination; i. Whether the applicants have met the criteria for the grant of an order of temporary restraining injunction pending hearing and determination of this suit. ii. Whether an interlocutory injunction can be issued against the registered proprietor of the property in dispute. iii. Whether the applicants have met the criteria for the grant of an order of temporary mandatory injunction pending the hearing and determination of this suit. iv. Whether injunctive orders can be issued against OCPD Mulot Police Station and OCPD Talek Police Station in this matter. v. Whether this court should grant orders allowing status quo ante to prevail pending the hearing and determination of this suit and vi. Whether this court can grant an order appointing an independent manager/receiver pending the hearing and determination of this suit. 30. On whether the applicants have met the criteria for the grant of an order of temporary restraining injunction pending hearing and determination of this suit the Plaintifis/Applicants submitted that they meet the legal criteria for the grant of injunctions. They relied on the principles set out in the case of Giella v. Cassman Brown (1973) EA 358 and reafirmed in the case of Nguruman Limited v. Jan Bonde Nielsen & 2 others (2014) eKLR, which outlined the requirements for granting temporary injunctions: being establishing a prima facie case, demonstrating irreparable injury, and showing that the balance of convenience favours the applicant. 31. It was the Applicants further submissions that they have established a prima facie case with probability of success. These submission was supported by evidence of their financial investment in the property, and previous court rulings recognizing their interest. They cited the ruling of the court dated 23rd May 2024, and acknowledged that the applicants have identifiable interest in the suit property, which has further strengthened their case. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 5

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32. It was the Plaintifis/Applicants further submissions that they have established irreparable harm or loss due to the eviction, cessation of operations, and removal of items from the camp, which impacts their livelihood, employees, and the surrounding community. The Applicants relied on the case of Pius Kipchirchir Kogo v. Frank Kimeli Tenai [2018] KEELC 2424 (KLR), to define irreparable injury as harm that cannot be adequately compensated by damages. 33. It was the Plaintifis/Applicants further submissions that their investment of USD 2,452,619, in the camp and the financial and social losses caused by its closure, is irreparable and cannot be compensated by an award of damages. The applicants challenged the Defendants' title to the suit property, alleging fraud and misrepresentation, and argued that interlocutory injunctions can be issued against registered proprietors under such circumstances. 34. The Applicants relied on the cases of Dina Management Limited v. County Government of Mombasa & 5 others [2023] KESC 30 (KLR) and Munyu Maina v. Hiram Gathiha Maina [2013] eKLR, to emphasize that a registered proprietors must prove the legality of their title when it is under challenge. 35. On Whether injunctive orders can be issued against OCPD Mulot Police Station and OCPD Talek Police Station in this matter the Plaintifis/Applicants addressed the Defendants' alleged misuse of Police oficers to harass and evict the applicants, justifying injunctive orders against the Police. The applicants argued that the Police have acted as agents of the Defendants/Respondents herein by aiding in harassment and eviction of the Applicants and their stafi, and therefore, injunctive orders against them are appropriate. 36. Further reliance was sought in the case of Kamau Mucuha v. Ripples Ltd [1993] KECA 82 (KLR) and Thompson v. Park [1944] 2 All ER 477, which establish that the status quo to be preserved is the one that existed before the illegal acts of the Defendants. Therefore, the Plaintifis/ Applicants urged the court to restore the status quo ante, allowing them to regain possession and management of the camp, as it was before the alleged illegal eviction. 37. On whether this court can grant an order appointing an independent manager/receiver, the Plaintifis/ Applicants submitted that a receiver/manage can be appointed if the court finds the dispute too contentious to manage the camp, and prevent its assets from being wasted. Reliance was sought in Section 63(d) and (e) of the Civil Procedure Act, which allows the court to appoint a receiver who shall manage the camp. 38. Further reliance was sought in the cases of Nasir Ibrahim Ali & 2 others v. Kamlesh Mansukhlal Damji Pattni & another [1998] KECA 181 (KLR) and Nishith Yogendra Patel v. Pascale Mireille Baksh & 2 others [2015] eKLR, which highlight the role of receivers in preserving the subject matter of litigation. 39. In conclusion, the Plaintifis/Applicants submitted that there was need to preserve the status quo, so as to protect their investments, and prevent further harm to employees, and the community. They urged the court to grant the various injunctions as sought, and award costs in their favour. 40. The Defendants/ Respondents filed their written submissions dated 18th July 2025, through Kanchory & Co Advocates, in opposition to the Plaintifis/Applicants’ instant Application. 41. It was the Defendants/ Respondents submissions that this application was unnecessary and constituted an abuse of the court process, as the issues raised herein were already addressed by existing court orders dated 23rd May 2024, and 28th August 2024. 42. The Defendants/ Respondents further submitted that the Plaintifis failed to demonstrate any violation of these orders, and accused them of engaging in a multiplicity of applications and forum shopping, which clogs the administration of justice. To support their submissions, the Defendants/ https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 6

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Respondents relied on various decided cases; Kauty Academy v Star Gold Enterprises Limited & another (Miscellaneous Application E015 of 2023) and Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR, which cases emphasized that the filing of multiple applications seeking similar orders is a misuse of the court process. 43. On the request for injunctive orders against unnamed entities, such as “OCPD Mulot Police Station” and “OCPD Talek Police Station,” the Defendants/Respondents submitted that such orders cannot be issued to these entities, which are not recognized by law and are not parties to the suit. 44. Further, the Defendants/ Respondents submitted that injunctive orders, which act in personam and not in rem, and cannot be issued against individuals or entities who have not been served or given an opportunity to respond. Further, the Defendants/ Respondents submitted that their right to property under Article 40 of the Constitution of Kenya are being threatened, as the Plaintifis/Applicants’ Application sought to improperly wrest control of the Mara Napa Luxury Camp, and Land title No. Cis-Mara/Talek/406, Cis-Mara/Talek/407 and Cis-Mara/Talek/408, from Defendants who are the registered legal proprietors, without an adverse finding on the legality of their title. 45. The Defendants/Respondents argued that the instant application undermines the Respondents right to a fair hearing under Article 50(1) of the Constitution, and that the balance of convenience tilts in their favour. 46. On appointment of an independent manager to take control of the Mara Napa Luxury Camp, the Defendants/ Respondents submitted that such a request is legally baseless and ultra vires the powers of this court’s jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment & Land Court Act. 47. In conclusion, the Defendants/ Respondents submitted that the Plaintifis/Applicants’ application is fatally fiawed, lacked merit, and should be dismissed with costs awarded to the Defendants. 48. The above are the grounds for and in support of this Application, and the grounds in opposition to the said Application, which this court has carefully considered together with the rival written submissions, the cited authorities and relevant provisions of law, and renders itself as follows; 49. From the court record, it is evident that the Plaintifis/ Applicants herein filed this suit on 16th February 2024, wherein they sought for various prayers among them; a declaration that the 1st and 3rd Defendants acquired the titles for land parcels No Cis Mara/ Talek/406, 407 and 408 illegally , unprocedurally , fraudulently and through misrepresentation; a declaration that the 1st and 3rd Defendants holds the titles to the suit parcels of land in trust for the charitable entity set up for the benefit of the Maasai Community among other prayers. 50. Simultaneously to the Plaint, the Plaintifis /Applicants herein filed a Notice of Motion Application even dated, wherein they sought for various injunctive Orders against the Defendants/Respondents herein seeking to restrain them from selling, Charging licencing or in whatsoever manner disposing any interests on the suit parcels of land pending the hearing and determination of the suit, among other prayers. 51. After inter- parties hearing of the said Application, this court constituted difierently delivered its ruling on 23rd May 2024, and allowed some of the injunctive orders , but declined to allow the prayer for forensic audit into the account and financial statement of Mara Napa Luxury Camp. 52. Further, on 13th June 2024, the Plaintifis/Applicants filed another Notice of Motion Application under Order 40 Rule1 of Civil Procedure Rules, and sought for injunctive orders to restrain the Defendants/Respondents from entering, interfering, or encroaching the premises of Mara Napa https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 7

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Luxury Camp or any motor vehicles situate on the suit properties pending the hearing and determination of the suit. 53. The Defendants/ Respondents also filed a Notice of Motion Application dated 10th July 2024, and also sought for Orders that the Plaintifis be ordered to surrender and restore management and running of Mara Napa Camp to the Defendants/ Applicants, and refrain from meddling or interfering with the business operations of the said Camp; 54. The Defendants also sought to restrain the Plaintifis from entering or remaining on the suit properties without authorities of the Defendants/ Applicants. 55. The two Applications together with a Preliminary Objection were canvassed together through written submissions, and court did deliver its Ruling on 28th August 2024, wherein it allowed the Plaintifis/ Applicants Notice of Motion Application dated 13th June 2024, to the extent that the Defendants/ Respondents were restrained from interfering in any manner that would alter the suit properties being Cis Mara/Talek/ 406, 407 and 408, pending the hearing and determination of the suit. 56. Further, the Defendants Notice of Motion Application dated 10th July 2024, was allowed to the extent that the Plaintifis were ordered to make full and proper account of all the revenue and expenditure of the camp for a period of 10th January 2024, to the date of the ruling. 57. Therefore, from the above court record, the Plaintifis/Applicants herein are in possession of two Rulings that did allow and grant them injunctive orders, as sought by them in the two referred Applications. 58. After the Interlocutory Applications, the matter came back to court severally for Case Management and on 7th April 2025, the matter was certified ready for hearing virtually. On the date of the hearing, the Defendants objected to hearing of the suit virtually, which objection culminated in a Ruling of 5th June 2025, wherein the court dismissed the said objection. 59. Thereafter, the Plaintifis/ Applicants filed the instant Notice of Motion Application, wherein they have sought for various injunctive orders and an order to appoint an independent manager to take possession, control and management of the Mara Napa Luxury Camp pending the hearing and determination of the suit herein. 60. This court has found it necessary to give a breakdown of the Applications already filed and determined in this suit from inception to now, since the Defendants/ Respondents have alleged that the Plaintifis / Applicants have sought for injunctive orders that have already been granted. 61. The Plaintifis /Applicants have sought for temporary orders of injunctions, and temporary injunctive orders are a court-issued directives, which are issued to compel a person or entity to either stop a certain action or to perform a specific action. These orders are issued to protect rights or prevent harm, especially if an award of monetary damages would not be not be a suficient remedy. See the cases of Rockland Kenya Limited v Elliot White Miller [1994] eKLR, and Nduati & 2 others v Chemutai & 3 others [2025] eKLR deal 62. Therefore, the purpose of injunction is to prevent harm, protect property, and uphold legal rights, especially where monetary compensation would be inadequate, and to uphold public good. 63. The Plaintifis/ Applicants have sought for various injunctive orders, which have been vehemently opposed by the Defendants/Respondents. The issue for determination is whether the Plaintifis/ Applicants are deserving of the orders sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 8

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64. The Application herein is anchored under Sections 1A,1B and 3A of the Civil Procedure Act, which provisions of law deal with the Overriding Objective of the Act, which obligate the court to facilitate expeditious, just, proportionate and afiordable resolution of disputes before the court. 65. Further under Section 3A, the court has unfettered powers to issue orders that are necessary for the end of justice to be met. Under Order 40 Rule 1 of Civil Procedure Rules, the court has discretion to issue temporary orders of injunction wherein the suit in dispute is in danger of being wasted, damaged or alienated by any party to the suit. 66. In the instant suit, the Plaintifis/Applicants have alleged that the Defendants are engaged in acts of removal of moveable assets from Mara Napa Luxury Camp, are threatening the Plaintifis/Applicants with harassment, and have caused a contingent of Police oficers from various stations to be stationed in the said Mara Napa Luxury Camp, thus impending the Plaintifis/Applicants access to the said camp. 67. Given that the Defendants /Respondents have opposed the instant Application, it is incumbent upon the Plaintifis/Applicants to avail suficient evidence, and establish the laid down principles for grant of injunctive orders. 68. Injunctive Orders are discretionary equitable remedies, which means that the courts are not bound to grant an injunction automatically, but rather to grant or not to grant an injunction is the exercise of court’s discretion, which discretion must be exercised judiciously. See the case Hasmukh Khetshi Shah vs Tinga Traders Ltd. Civil Appeal No.326 of 2002, where the court held; “ It must be stated at the outset that the granting of an interim injunction is an exercise of judicial discretion and an appellate Court will not interfere unless it is shown that the discretion has not been exercised judicially.” 69. Further, injunctions are issued based on principles of fairness and justice, and while considering such an application, the court should be cautious not to deal with contested issues with a finality based on Afidavit evidence. See the case of Narendra Chaganlal Solanki vs Neepu Auto Spaces Ltd, Kisumu High Court Civil Case No. 90 of 2003, where the court held; “ in an interlocutory application for injunction, the court must warn itself of the gravity of danger of making conclusive findings that may prejudice the interest of the parties at the hearing of the suit and should as far as possible exercise some cautionary steps.” 70. Whether to grant or not to grant injunctive orders , the court will rely on the principles set out in the case of Giella vs Cassman Brown& Co. Ltd, [1973]E.A 385; “ The conditions for the grant of an interlocutory injunction are 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 injury, which should 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 9

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71. In the case of Edwin Kamau Muniu vs Barclays Bank of Kenya, Nairobi, (Milimani HCCC No.118 of 2002; the Court held; “ In an interlocutory application, the court is not required to determine the very issues which will be canvassed at the trial with finality. All the court is entitled at this stage is whether the Applicant is entitled to an injunction sought on the usual criteria…” 72. The court will now proceed to consider the available evidence, together with the principles for grant of injunctive orders and then determines whether the Plaintifis/Applicants are deserving of the orders sought. The court will be cautious not to determine the disputed facts with finality at this juncture. 73. Have the Plaintifis/ Applicants herein established that they have a prima facie case with probability of success. Firstly, this court should point out that the Plaintifis/ Applicants are beneficiaries of two sets of injunctive orders, which were issued separately by this court vide two earlier Applications for injections. 74. The Application herein is premised on the fact that the Defendants/ Respondents have not obeyed the said injunctive Orders, and have continued to carry out the acts which they were restrained from undertaking. Further, that the Defendants/ Respondents have continued to harass and threaten the Applicants and their stafi, thus in disregard of the existing court orders. If that is the case, the action of the Defendants/Respondents constitute or borders on contempt of court orders. 75. The law is very clear on what happens when there is contempt of court orders, Order 40 Rule 3(1) of Civil Procedure Rules, states; “ (1) 76. In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release. Further Section 29 of the Environment & Land Court Act, which stipulates the Jurisdiction of this court states; “ Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an ofience, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.” 77. Therefore, if the Defendants/ Respondents are in contempt of court orders, then the Plaintifis/ Applicants ought to have filed the relevant Application, before the court for contempt. However, the Plaintifis/ Applicants chose to file another Application for Injunctive Orders. 78. Be that as it may, prima facie case was described in the case of Mrao Ltd vs First American Bank Kenya Ltd & 2 others [2003] eKLR to mean; “ a prima facie case in a civil application includes but is not confined to a genuine and arguable case. It is 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 10

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79. The Plaintifis/Applicants alleged that the Defendants/ Respondents have carted away moveable assets from the Mara Napa Luxury Camp. This claim is an allegation, and allegation must be backed by evidence. Carting of movable assets can be proved by attaching evidence of such action. However, in the 1st Applicant’s Supporting Afidavit, nothing was attached to the Application to confirm and prove this carting away of the moveable assets. Which were these movable assets? 80. Further, the Plaintifis/Applicants have alleged that there are Police Oficers from Mulot and Talek Police Stations numbering to about 27, who are stationed at and are manning Mara Napa Luxury Camp, and have impended access to the said Camp by the Plaintifis and their stafi. 81. The Plaintifis/ Applicants have made allegations of presence of so many Police oficers at the disputed premises and they needed to prove the said allegations by availing evidence of the said Police oficers manning the Mara Napa Camp. How could they avail such evidence? Through photographs/ Photographic evidence or any evidence of presence of such Police Oficers at the said Camp. No such evidence was availed, and this court cannot find with certainty that indeed, there are Police Oficers stationed at the said MARA Napa Camp, and are manning it, impending access by the Plaintifis/ Applicants and their stafi. 82. Without availing such evidence, the court finds and holds that the Plaintifis /Applicants have not established that they have a prima facie case with probabilities od success, especially on the issue of carting away of moveable assets, and harassment by a contingent of Police Oficers at the Camp. Further, this court takes judicial notice of the fact that the Plaintifis/Applicants are beneficiaries of two Rulings that allowed their Applications for injunctions. 83. Given that the principles of injunction are sequential in nature, failure to establish one of them means that there is no need of considering the other principle of irreparable harm/ injury. See the case of Nguruman Ltd v Jan Bonde Nielson & 2 Others [2014] eKLR, where t he Court of Appeal held that these three conditions and stages must be applied "as separate, distinct and logical hurdles, which the applicant is expected to surmount sequentially". Therefore, it means that an applicant cannot skip any stage, and cannot move directly to the balance of convenience without proving irreparable injury. 84. Evidently, the Plaintifis/ Applicants needed to first demonstrate to the court that their case is likely to succeed at trial on the allegations made, by establishing that they have a prima facie case with probability of success. Since the court has determined that the Plaintifis/ Applicants have not established a prima facie case, then this application has failed at this first hurdle, and the court does not need to consider the other conditions. See the case of Kenya Commercial Finance Co. Limited – Versus - Afraha Education Society [2001] Vol. 1 EA 86. 85. On prayer No 13, which is alternative to prayer No 10, the Plaintifis /Applicants have sought for an order that the court do appoint an independent manager to take possession, control and management of Mara Napa Luxury Camp pending the hearing and determination of the suit. 86. The above prayer is a mandatory injunction, which is a court order issued to compel a party to perform a specific act, rather than just refraining from an action. In granting such prayers, it requires a higher degree of assurance and is only granted in exceptional circumstances where the case is clear or where the act is simple and easily remedied. See the case of Showind Industries Ltd vs Guardian Bank Ltd (2002)1 EA 284, where the court held; “ ‘’…. mandatory injunction is granted very sparingly and only in exceptional circumstances such as where the Applicant’s case is very strong and straight forward. Moreover, as the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 11

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remedy is an equitable one, it may be denied where the Applicant’s conduct does not meet the approval of Court of equity or his equity has been defeated by laches 87. It is trite that a mandatory injunction may be granted on an interlocutory (temporary) application in given circumstances, as was established in case of Kenya Breweries Ltd. & Ano. Vs. Washington O. Okeyo:, where the court set out the conditions as; a. When the case is clear and the court believes it should be decided immediately. b. When the act to be remedied is a simple and summary one that can be easily fixed. c. If the defendant has attempted to "steal a march" on the plaintifi. 88. Having looked at the case herein and the contested issues, this court finds and holds that it is not a clear case which should be determined immediately. Further, the act sought to be remedied is not a simple one, which can be determined in a summary manner or easily fixed. Further, there is no evidence that the Defendants herein are trying to steal a march on the Plaintifis, and thus a MANDATORY INJUNCTION cannot be issued at this stage. Let the parties avail evidence in the main trial, and the said evidence be tested through the usual cross examination, and proof the case on the usual standard of balance of probabilities. 89. As the court pointed out earlier, the Defendants/ Respondents Notice of Motion Application dated 10th July 2024, was allowed wherein the Plaintifis/ Applicants were directed to make a full and proper account of all the revenue and expenditure of the Camp for a period starting from 10th January 2024 to the date of the said Ruling. 90. Did the Plaintifis/Applicants herein comply with the said Court Order? The court asks this question since a party who seeks equitable relief must come to court with clean hands. See the case of Esther Nugari Gachomo v Equity Bank Limited [2019] KEHC 7891 (KLR), where the court while relying on the case of Caliph Properties Limited –vs- Barbel Sharma & Another [2015] eKLR, stated: “ Secondly, the injunction sought is an equitable remedy. He that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintifi in this case betrays him. It does not endear him to equitable remedies. … He who comes to equity must fulfil all or substantially all his outstanding obligations before insisting on his rights..” 91. The issue of ownership of the suit properties where Mara Napa Luxury Camp is situated is contested. The Plaintifis/ Applicants prayer if granted at this juncture would be tantamount to determining the contested issues with a finality at the interlocutory stage. 92. Further, the Plaintifis/Applicants have not established the above principles for grant of Mandatory injunctions as was held in the case of Washington Okeyo vs Kenya Breweries Ltd( supra) 93. On the prayer of directing status quo ante, the court finds and continue to hold that the Plaintifis/ Applicants have been issued with injunctive orders through two other rulings, and if there is any breach of the said Orders, the Plaintifis/Applicant ought to have filed the necessary Application instead of filing another interlocutory injunction for Status quo. 94. Having considered the instant Notice of Motion Application dated 22nd May 2025, the court finds and holds that the same is not merited, and consequently, the instant Application is dismissed entirely. 95. On costs, given the circumstances of this case, the court directs that the costs be in the cause. Further, the court directs the parties to prepare the main suit for hearing and the same be heard expeditiously, so that the issues in dispute can be determined at once. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 12

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96. For the above reasons, the parties are urged to desist from filing numerous interlocutory Applications, which Applications delay the hearing of the main suit, and clog the judicial system, thus impending on the administration of justice. 97. Further, as provided by Sections 1A and 1B of the Civil Procedure Act, on the duty of the court to facilitate, expeditious and afiordable resolutions of civil disputes before it , and for eficient use of available judicial resources, and taking into account the provisions of Article 159(2)(C) of the Constitution on promotion of Alternative Disputes Resolutions( ADR), the court encourages the parties herein who seemed to have had a cordial relationship before the disagreement to try and resolve the dispute herein through ADR. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 20TH DAY OF NOVEMBER 2025 L. GACHERU JUDGE. Delivered online in the presence of Elijah Meyoki - Court Assistant Mr. Shikanda & Okwach for the Plaintifis/Applicants Mr. Kanchory for the Defendants/Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8105/eng@2025-11-20 13

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