LMM v GNK (Environment and Land Case E050 of 2025) [2026] KEELC 1661 (KLR)

established a prima facie case, since the Applicant has not demonstrated that the property is in danger of being exposed, damaged or wasted by one of the registered proprietors in absence of the other. 6. That in fact there can be no irreparable damage to be sufiered due to the fact that the jointly registered property cannot be disposed without voluntary involvement of the joint proprietors. According to the Defendant, since both parties reside in Muguga and the property is situated in the said area, by the Applicant filing this matter in Thika this is forum shopping. 7. The Respondent avers to have contributed wholly and solely to the acquisition of the suit property. Although the suit property is registered jointly it is owned by him as a beneficial owner as per the attached proof of payment for purchase marked as ‘GNK-1’. Further that he bought the suit parcel from the proceeds of sale of his previous matrimonial home in Nairobi HCCC 10 of 2012. 8. It is the Respondent’s contention that the Applicant did not contribute to the purchase of the suit property which he purchased for the benefit and future inheritance of his two children – issues of his previous marriage. Thus, that the Applicant’s claim is made out of greed and malice. So, it is the Respondent’s averment that the application dated 21/03/2025 is devoid of merit and that the Court should dismiss it with costs. 9. In response to the Replying Afidavit, the Applicant filed a Further Afidavit sworn on 26/05/2025 where the gist of the Afidavit is that the Replying Afidavit by the Respondent is based on falsehoods. That the Respondent has not proved that the suit property is matrimonial property in any way and neither has he placed before the Court evidence of marriage between himself and the Applicant. 10. Further that in a Children’s Court in Kiambu, the Defendant in resisting prayers to reinstate the Applicant to the suit property has in his defence denied that the property is matrimonial property as evidenced by exhibit ‘LMM1’. 11. Thus, it is the Applicant’s contention that since the Respondent alleges that the Applicant has no rights to the property then he is capable of parting with its possession or unlawfully alienating it so as to defeat the Plaintifi’s claim on the property. 12. On 13/05/2025, the Court directed that the parties canvass the application by way of written submissions. 13. The Applicant submitted in his submissions dated 9/06/2025 that the Court has jurisdiction to determine the matter since the averment by the Respondent about marriage has not been proved as required under Section 51 of the Marriage Act and relied on the case of EGK vs JMM [2023] KEHC 23847 (KLR). To the contrary the Respondent admits that the property is jointly owned but he goes on to aver that despite the joint ownership the property is for the benefit of his children but does not present any evidence to prove it was registered in trust for the said children. 14. According to the Plaintifi’s submissions, it is her case that the orders sought is to maintain the substratum of the suit so that it is not alienated since she has an interest in the suit property. That without the interlocutory orders the Respondent can alter the ownership of the suit property. 15. The Plaintifi submits that she has produced evidence of joint ownership which is not denied by the Respondent and thus she has established a prima facie case. She has also stated that she has been evicted from the suit property and in case the injunction is not issued and the suit property is sold she avers that she will sufier irreparable loss which may not be compensated through damages. Thus, the tilt of balance is towards maintenance of the suit property until the matter is heard and determined. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1661/eng@2026-01-27 2

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16. The Applicant also relied on the case of Giella vs Cassman Brown & Co. Ltd [1973] EA 358, Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] Vol. 1EA 86 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR. 17. On his part the Respondent in their submissions dated 22/07/2025 submitted that the application is premature having been brought to Court before dissolution of a subsisting marriage between himself and the Applicant. At the same time that the Plaintifi seeks in the Plaint distribution of the matrimonial property but she has disguised it as a declaration. 18. The Respondent submits that this Court lacks jurisdiction since the matter concerns matrimonial property. This was brought about after the Plaintifi and Respondent conducted a Kikuyu customary marriage in 2020 and the property can only be divided after dissolution of marriage. 19. Further the Respondent contends that the application has not met the threshold for grant of injunctive orders as set out in Giella vs Cassman (supra). Further he submitted that land owned jointly cannot be alienated and so the Applicant cannot sufier any irreparable loss and the balance of convenience does not tilt in the Applicant’s favour since none of the joint owners can deal with the suit property without the other. 20. The Respondent relied on the cases of Giella vs Cassman (supra), EJ vs JKN (supra), Owners of the Motor Vessel “Lillian S vs Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), In Re CWN (A person suffering from mental disorder) [2023] KEHC (KLR), Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others [2003]eKLR, Gehlot & Another vs African Banking Corporation Limited ( Civil Suit 104 of 2018)[2022]KEHC 96 (KLR), Hassan Huri & Another vs Japhet Mwakala [2015] KECA 637 (KLR), Kipchirchir Kogo vs Frank Kimeli Tenai [2018] eKLR and Mobile Kitale Service Station vs Mobil Oil Kenya Limited & Another [2002] KEHC 1185 (KLR). 21. It is the Respondent’s submission that the balance of convenience lies with the Respondent making an injunction inappropriate. 22. At the same time in his submissions the Respondent made reference to Section 6 of the Matrimonial Act which defines what matrimonial property is. Also, Section 7 of the said Act refers to ownership of matrimonial property and its division upon dissolution of a marriage. Further he referred to Section 91(4) of the Land Registration Act in reference to joint ownership and submitted that jointly owned land cannot be alienated without involvement of joint tenants, since any such transfer shall be void. Analysis and Determination 23. From the facts of this case as presented, the Court has discerned that the issue for determination is whether the Environment and Land Court has jurisdiction to hear and determine this matter touching on what the Respondent considers to be matrimonial property and to be specific, land. 24. Section 6(1) of the Matrimonial Property Act describes matrimonial property to mean: a. The matrimonial home or homes; b. Household goods and efiects in the matrimonial home or homes; or c. Any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1661/eng@2026-01-27 3

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25. The Supreme Court of Kenya in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012]eKLR was categorical that without jurisdiction, a Court cannot entertain any proceedings. It stated thus:“ A Court’s jurisdiction fiows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 26. The same Apex Court in the Matter of Interim Independent Electoral Commissions, Constitutional Application No. 2 of 2011 [2011] eKLR, had similarly expressed that where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits; it cannot expand its jurisdiction through judicial craft or innovation; nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Also in Republic v Karisa Chengo & 2 Others SC Petition No. 5 of 2015 [2017] eKLR the Supreme Court was clear that the High Court, the Environment and Land Court (ELC) and Employment and Labour Relations Court (ELRC) are difierent and autonomous Courts with “difierent and distinct jurisdictions” and stated that:“ As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.” 27. So, given this clear direction from the Apex Court, the Court must first determine the nature of the dispute before the ELC so as to establish whether that Court has jurisdiction. 28. The ELC has original and appellate jurisdiction to hear and determine all disputes relating to the environment and the use, occupation of, and title to land. 29. At the same time, the ELC Act empowers the ELC Court to make any order and grant any relief it deems fit and just within its jurisdiction. This includes issuing interlocutory injunctions (under Order 40 of the Civil Procedure Rules) to prevent property from being wasted, damaged, or alienated while the suit is pending. 30. The primary goal is to ensure that the subject land is preserved so that any final orders made by the Court are not rendered nugatory (useless). 31. In the present application there is no evidence produced before Court to attest to the property being contested being matrimonial. However, it is undisputed that the property is registered jointly. The Respondent has clearly stated that he is the only one who contributed to the purchase of the suit property. The Applicant in response contests this averment and alleges to have contributed to not only purchase but also the improvement of the suit property. 32. The Plaintifi’s claim before the Court is for ownership and possession of Muguga/Muguga/3XXX, which, she claims to have been in possession of but was disposed through constructive eviction by the Defendant by being denied access. 33. In my view, these remedies go to the root of ownership and title to the land. Under Section 13 of the Environment and Land Court Act and Article 162(2)(b) of the Constitution, this Court has original jurisdiction to hear and determine disputes relating to title to land, cancellation of titles, rectification of the register, and claims founded on adverse possession. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1661/eng@2026-01-27 4

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34. In conclusion, I have carefully read and considered the pleadings and arguments made by the parties herein. The issue for determination is whether the Plaintifi has met the requirements stated in Giella vs Cassman Brown & Co Ltd, (Supra) as to the grant of a temporary injunction. These are that the Applicant must establish a prima facie case, and that he or she would sufier irreparable loss which may not be compensated by an award of damages. If the Court finds that the two requirements are not satisfied, it may decide an application on the balance of convenience. My finding is that the Plaintifi has established a prima facie case as she has provided evidence of joint ownership to title of the suit property. Further she has attested that she has been evicted from the suit property which is not controverted by the Respondent. On his part the Respondent has alleged a trust for his children which was not produced. 35. The Respondent also alleged that the suit property is matrimonial property but did not prove marriage despite the claim of having conducted a marriage under Kikuyu Customary Law. The Defendant did not bring any evidence of what he claimed. 36. It is my finding that given the fact that the Defendant has already barred the Applicant from accessing the suit property, the Plaintifi will sufier irreparable harm if an injunction is not granted, as it will not be possible to be compensated if the suit property changes hands. I therefore allow the Plaintifi’s Notice of Motion. 37. Further, The Environment and Land Court is underpinned on the provision of Article 162(2) b of the Constitution of Kenya 2010. Section 13(2) of the Environment and Land Court Act provides for the jurisdiction of the Environment and Land Court to hear and determine disputes relating to environment and the use and occupation of, and title to land. This Court finds that where the dispute revolves on use, occupation and title to immovable property, then the same is envisaged under Article 162(2) b of the Constitution of Kenya 2010 and Section 13(2) of the Environment and Land Court Act and therefore the Environment and Land Court has jurisdiction. I do find that this Court has the prerequisite jurisdiction to hear this matter and therefore make the following orders: a. An injunction is hereby granted restraining the Defendant his servants, agents, heirs or representatives from transferring, leasing out, letting, alienating or in any way whatsoever parting with possession or occupation of property Muguga/Muguga/3965 pending the hearing of this suit. b. Parties are directed to go before the Deputy Registrar for Pre-trial Conference on 09/02/2026. c. The costs of this application are awarded to the Plaintifi. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 27TH DAY OF JANUARY, 2026 VIA MICROSOFT TEAMS. ………………………… MOGENI J JUDGE In the presence of: Mr. Charana holding brief for Ms. Wanjiku for the Plaintifi Mr. Koech holding brief for Mr. Gathogo for the Defendant Mr. Melita – Court Assistant MOGENI J https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1661/eng@2026-01-27 5

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1661/eng@2026-01-27 6

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