Motatiro (Suing as the legal representative of the Estate of Gimung'aya Motatiro) v Muhindi & 12 others (Environment and Land Case E007 of 2025) [2026] KEELC 3866 (KLR)

RULING 1. The 1st to 6th Defendants brought a Notice of Motion dated 31st day of October 2025, under certificate of urgency. It was premised on Sections 13, 18, and 19 of the Environment and Land Court Act, 2011; Order 40 Rule 1(a) and Order 51 Rule 1, 3 and 4 of the Civil Procedure Rules, 2010; Sections 1A, 1B, and 3A of the Civil Procedure Act, 2010; Articles 40 and 159 of the Constitution of Kenya, and (what they termed as) all Other Enabling Provisions of the Law. They sought the following Orders that: 1. ...Spent; 2. ….Spent; 3. That pending hearing and determination of the main suit, there be an order of temporary injunction to restrain the Plaintifi/Respondent, either by himself, or through his agents, family members, employees, and/or servants from threatening or harassing the Applicants, from destroying the Applicants’ properties or in any manner whatsoever trespassing or interfering with the Defendants/Applicants’ quiet and peaceful possession of property known as Bukira/ Bwisaboka/11231 located in Migori County, Kuria West Constituency, Bukira East SubCounty and measuring 3.425Ha; 4. That the Orders for temporary injunction be enforced by the OCS (Oficer Commanding Kehancha Police Station); 5. That the costs of this application be provided for. 6. That this court be pleased to issue such other orders as it may deems fit for the interest of justice and for purposes of protecting the interests of the Applicants in the suit property. 2. The application was based on the grounds that the suit property was ancestral land that belonged to the Applicants. They had lived on it for over 50 years. The 1st Applicant has been in actual possession and active use of the suit property since 1974 to date. In 1974, the 1st Applicant’s Land Parcel Bukira/ Bwisaboka/828 was surveyed and demarcated. The said Applicant erected permanent commercial structures and a homestead where he and the other Applicants had been living for over 50 years. The commercial structures thereon are rented to difierent people who pay rent to the Applicants. 3. In 1992, the 1st Applicant was issued with a title deed for land parcel number Bukira/Bwisaboka/828. On 7/8/2022, the 1st Applicant proceeded to transfer land parcel number Bukira/Bwisaboka/828 to his heirs, who include the 2nd to 6th Applicants. In the same year, 2022, the 2nd to 6th Applicants proceeded to subdivide parcel No. Bukira/Bwisaboka/828 into several subdivisions of which Bukira/ Bwisaboka/11231, the suit property, was one. Since the year 1974, the Applicants had occupied the suit property peacefully and without any form of external interference. The interference only began in May 2023 when the Respondents started to threaten the Applicants with bodily harm and by destroying their properties, leading to the filing of Migori ELC. No. E001 of 2023. The suit was later withdrawn. In the circumstances, it is only fair and just that the interim orders sought be granted. 4. The Application was supported by the Afidavit of Anison Nyahiri Muhindi sworn on the same date as the application. He deponed that he was a resident of Bukira East Subcounty and had been duly authorized by the other Applicants to swear the Afidavit on his own behalf and that of the 2nd to 6th Defendants. He did not annex the written authority though. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3866/eng@2026-06-19 2

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5. He repeated the contents of the grounds in support of the application but in deposition form hence the court need not rehash the same, having captured them above. However, he added to the deposition that he had annexed a number of copies of documents to demonstrate the facts he deposed to. These were, “ANM-1” a copy of the Survey Map; “ANM-2” a copy of the Title Deed issued to the Applicants in March 1992; “ANM-3” Photos of the permanent houses and structures and commercial buildings erected on the Suit Property; “ANM-4” is a photo of the Catholic Church; “ANM-5” is a copy of the green card’ “ANM-6” is a copy of the Title Deed for Bukira/Bwisaboka/11232; “ANM-7” photos meant to show the destruction of properties valued at KShs 325,609/= on the suit land; and “ANM-8” is a copy of the OB showing that the destruction had since been reported to the police. 6. He added that in the year 2022, his heirs (sic) decided to subdivide land parcel Bukira/Bwisaboka/828 and issue a title deed also to one Simion Chacha Mahende, the 7th Defendant, who had purchased a portion of the said land. The parcel resulting from the subdivision was known as Bukira/ Bwisaboka/11233. Further, the 1st applicant was apprehensive that the Respondents would continue to threaten, harass, or even attack the Applicants if not stopped by an order of this court. He would equally continue to destroy their properties if they were not stopped by the court. 7. The Respondent/ plaintifi filed grounds of opposition dated 6th November 2025 in them they stated that the application disclosed no reasonable defense in that it failed to appreciate the efiect of Section 92 of the Limitation of Actions Act and the discovery of the fraud was in 2022 hence the suit could not be bad by way of limitation of action hence the application was an abuse of its process of the court. 8. He also filed a Replying Afidavit sworn on 14th November 2025. In it he deponed that the application was frivolous, scandalous, vexatious and an abuse of the court process. His father, one Gimungaya Motatiro, now deceased was the registered proprietor of the land designated as Bukira/Bwisaboka/229 containing by measurement 50 acres. Following the father’s demise, and with intention to succeed his Estate, he approached the lands registry to procure a search in respect of the suit parcel and to his utter shock, he discovered that the suit land was non-existent having undergone several subdivisions. The suit parcel had been subdivided into two being Bukira/Bwisaboka/1827 and 828 registered in the names of my late father and the 1st Applicant herein respectively. The suit land being Bukira/ Bwisaboka/828 registered in the names of the 1st Applicant was further subdivided, culminating in two other titles being Bukira/Bwisaboka/11231 and 11232 registered in the names of the Catholic Diocese of Homabay and the names of Nyahiri Karunga James, Nyahiri Nyamasegere Dismas, Peter Matiko Nyahiri and Paul Muhindi Nyahiri. 9. He added that despite the applicants having a certificate of title they had never occupied the suit land and or at all. The deponent’s family and him had been in occupation and use of the suit property since 1970's unawares of the subdivisions on the Original Land Parcel No. Bukira/Bwisaboka/229, including Bukira/Bwisaboka/11231 the subject of the instant application. The applicants’ assertion that they were in occupation of the suit land was not true and a mere evidence of a certificate of title in their name did not in any way show that they occupied the land. 10. Further, the photographs annexed to the application could not be ascertained with precision on what parcel they were taken from and as such the court could not assume that they were taken from the suit property without evidence to that efiect. Mere copies of photographs of houses allegedly erected on the parcel of land whose existence was denied did not justify the grant of an order of injunction. In any event, there was no certificate of electronic evidence in respect of the photos as required by law. 11. He deposed further that neither he or any member of the family had ever threatened the applicants or any member of family. Further, there was no justification as to why the police could have neglected the complaint allegedly raised by the applicant if indeed the Respondent had threatened to infiict actual https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3866/eng@2026-06-19 3

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bodily harm and or kill the applicants. The said complaint though made to the police was malicious and with no iota of evidence. That was why the police never acted on it. If there was imminent danger and or real, the police could have preferred charges against the respondent. 12. Further, the law requires that for an injunction to be granted an applicant must show that their application had high chances of success, the applicant will sufier irreparable harm in the event the injunction was not granted, and lastly, the balance of convenience tilts in his favour. The applicants’ statement of defence did not in any way explain how he come to subdivide parcel No. 229 hence it was not sustainable and the Defendant’s claim had no chances of success. 13. The Respondent and his family had been in occupation of the suit land and the Applicants had never been in occupation of the suit land. One would wonder what prejudice the Defendants risked undergoing that could not be compensated by way of damages. The prayers sought were only intended to have him evicted and harassed before the suit would be heard and finalized. The Applicant had come to court with unclean hands, having an intention to have him evicted from the suit land through the back door. 14. The balance of convenience tilts in his favour. The application was without merit, brought in bad faith, and should be dismissed with costs. He prayed that orders of status quo of the parcel do remain pending hearing and determination of the suit. 15. The application proceeded by way of written submissions. The Applicants’ Submissions 16. The Applicants filed their submissions dated 1st December 2025. They argued that they were the absolute owners of all that property known as Bukira/Bwisaboka/11231. They repeated a summary of the contents of the grounds and depositions in support of the application. Then they gave a number of issues, one being whether the Application met the threshold for issuing interlocutory injunctive orders. On this issue they submitted that Section 13(5)(a) of the Environment and Land Court Act gives this court jurisdiction to issue interim or permanent preservation orders, including injunctions, to meet the ends of justice. They relied on the Giella v Cassman Brown [1973] EA 358 case and repeated the three requirements the decision laid down. They argued that the applicants had established a prima facie case with high chances of success since they had shown that they were the absolute owners of the suit property by producing the title deed and green card copies thereto. 17. They argued they were in actual possession and active use of the suit property for over 50 years and had constructed permanent structures on it and cultivated crops thereon. They added that the Respondent was claiming that the suit property belonged to their late father, Gimungaya Motatiro, who passed away in February 1993. Further, the said late father did not raise any complaint about their occupation of the land. They added that from the 1970s, they lived peacefully as neighbors with the Respondent’s late father, with clear boundaries separating their respective lands. They added that the area chief attended court and confirmed the Applicant’s assertions. They added that they would sufier irreparable harm which cannot be adequately compensated by damages because they had erected permanent structures on the suit property and they cultivated crops on it. 18. Further, they submitted that respondent had threatened actual bodily harm and the matter had been reported to the police, who refused to take action, citing the pendency of the instant matter. Also, they had been actively cutting down tree belonging to the Applicants. They urged that there was need for the court to issue orders that would preserve the substratum of the suit by maintaining status quo while awaiting the hearing and determination of the main suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3866/eng@2026-06-19 4

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The Respondent’s Submissions 19. The Respondent filed written submissions dated 28th November 2025 in which he gave only two issues for determination. The first one was whether the conditions for the grant of a temporary injunction had been met and the second one the costs of the application. 20. On whether the merits of the application for injunction had been met, the Respondent relied on the case of Giella v. Cassman Brown (supra) and Mrao Limited (supra). He submitted that the applicants’ assertion that they were in occupation of the suit land was untrue. Further, the mere evidence of a certificate of title did not justify the claim that the applicants were in occupation. He submitted that the family of the Respondent had been in occupation and use of the land since 1970s, and were unaware of the occupation and use of the property by the applicants, including the subdivisions of the original parcel of land and the suit parcel of land. He added that the photographs annexed to the application could not be as attained with precision on which parcel of land they were taken. There was no proof that the houses were actually erected on the parcel of land whose existence is denied. 21. He added that there was no justification as why the police could have neglected complaints of threats to infiiction of bodily harm or the killing of the applicants since those were serious allegations. He submitted that the applicants had not demonstrated a prima facie case and any risk or harm that could be sufiered which could not be compensated by damages. They submitted that the balance of convenience tilted in their favor. They prayed dismissal of the application with costs. ISSUE, ANALYSID AND DETERMINATION 22. I have considered the application the grounds of opposition there too the submissions by the parties and the law as applied to the application. I am of the view that the issues that arise for determination are whether the supporting afidavit has proper annexures thereto and whether without a written authority depositions thereto are proper; whether the application has met the threshold for the grant the orders of injunction; and who to bear the costs of the application. 23. Starting with the first issue which is basically a preliminary one, the Applicants supported application through an Afidavit sworn by the 1st Applicant. He deposed that he had authority from the other applicants depose to the facts in this matter. He did not annex the written authority to the afidavit as I have noted above. Further, the annextures ANM 1 to 8 that are referred to in the Afidavit were either documents or copies of documents not commissioned by the Commissioner for Oaths who before whom the oath was taken. They were also not serialized in accordance with the law. 24. The first issue to address is the lack of written authority by the rest of the applicants to the 1st applicant. Order 4 Rule 1(3), as read with Order 7 Rule 5(a) of the Civil Procedure Rules regarding counterclaims, provides that “Where there are several plaintifis, one of them, with written authority filed with the verifying afidavit, may swear the verifying afidavit on behalf of the others.” Thus, it is clear that where the party is to swear an afidavit or plead on behalf of several others he should have written authority to do so, which should be filed with the pleading or afidavit. In my considered view, without the written authority the averment is mere hearsay which is inadmissible. 25. In the instant, as I have stated above, there is no written authority that was filed with or annexed to the afidavit by the 1st Defendant. Therefore, his deposition for and on behalf of the rest of the parties who did not give the authority are mere hearsay and inadmissible. They cannot be relied on to support the depositions or averments in their favor. Therefore, they are disregarded. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3866/eng@2026-06-19 5

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26. Regarding failure to Commission and serialize the annexures to the supporting afidavit, Rule 9 of the Oaths and Statutory Declarations Rules made pursuant to Section 6 of the Oaths and Statutory Declarations Act Chapter 15 Laws of Kenya provides that “All exhibits to afidavits shall be securely sealed thereto under the seal of the commissioner, and shall be marked with serial letters of identification.” 27. In the instant application, none of the purported annextures ANM 1 to 8 were commissioned and serialized under the seal of the commissioner. In the circumstances failure to commission the said documents together with afidavit renders them in admissible in evidence to support the depositions contained in the afidavit. Therefore, they are struck out. That being so, any deposition that relates to the purported annextures lacks documentary support and is mere hearsay which is inadmissible. 28. Turning now to the merits of the application, the issue in it is that the applicants are apprehensive or the destruction of the properties that the claim to and they argue that the destruction is currently ongoing and therefore they seek an injunction against the plaintifi respondent 29. The law on injunctions is governed by Order 40 of the Civil Procedure Rules 2010. Rule 1 thereof provides; “Where in any suit it is proved by afidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the defendant threatens or intends to remove or dispose of his property in circumstances afiording reasonable probability that the plaintifi will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 30. Further, a number of decisions have been rendered on the provision and I need not reinvent the wheel. The celebrated case of Giella v. Cassman Brown (supra) gives the requirements that a successful applicant seeking an order of injunction should meet if he were to be so found. It simply provides that the applicant must show he has a prima facie case with a probability of success in the first instance. Secondly, even though he shows that he should demonstrate that should be orders sought not be granted he will sufier irreparable harm that may not be compensated by way of damages. Thirdly, if the court is in doubt it has the obligation to decide the application on a balance of convenience in in the circumstances. 31. The Court of Appeal in Mrao Limited v the First American Bank of Kenya & 2 others [2003] KLR 125, at paragraph 17 defined a prima facie case in the following terms: ‘‘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’’. 32. More importantly, a party need not prove his case so as to established a prima facie case. In Pius Kichirchir Kogo V Frank Kimeli Tenai [21018] eKLR, Ombwayo, J noted that ‘‘a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed.’’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3866/eng@2026-06-19 6

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33. Further, the Court of Appeal decision of Nguruman Limited V. Jan Bonde Nielsen & 2 Others, CA NO. 77 OF 2012, emphasized the importance of satisfying all the three requirements for an order of injunction to issue. It stated:“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) any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. 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. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.” (Emphasis added). 34. Lastly, in the case of Showind Industries V Guardian Bank Limited & Another (2002) 1 EA 284, Ringera J. (as he was then was) stated as follows:“…….an 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 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”. 35. What constitutes a ‘‘balance of convenience in favour of the plaintifi’’ was expounded by the court in Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR the court established that: The meaning of balance of convenience in favor of the plaintifi is that if an injunction is not granted and the suit is ultimately decided in favor 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... 36. As I begin the analysis of the application herein, the history of this suit is pertinent in pointing out the direction the court is to go or its reasoning in the instant application. This suit was brought by the Plaintifi/ Respondent on 11th March 2025 at 14:43 hours. It appears that the same plaint was filed by the said party once more on 26th March 2025 through the said law firm which represents him, which is M/S G.S. Okoth & Company Advocates. 37. On 7th April 2025 at 16:56 hours the 1st to 6th the Defendants entered Appearance through their current advocates. Then, on 8th May 2025 at 13:20 hours the said law firm filed a preliminary objection dated 24th April 2025. On 13th May 2025 at 10:58 hours the plaintifi replied to the preliminary objection https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3866/eng@2026-06-19 7

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by a document dated 10th May 2025. Simultaneously, he requested for interlocutory judgment to be entered against all the defendants through a document dated 8th May 2025. 38. On 15th May 2025 at 12:47 hours the 7th, 8th and 9th defendants entered Appearance through the firm currently representing them. It is the same law firm that represents the 1st to 6th Defendants who are applicants in this application. At the same time, they filed a preliminary objection dated 14th May 2025 It had content as the earlier preliminary objection which had been filed for and on behalf of the applicants. 39. On 19th May 2025 the Plaintifi’s Advocates requested for the fixing of a mentioned date for the preliminary objection. On 21st July 2025 at 17:10 hours the State Law ofice entered Appearance for the 11th and 12th Defendants. On 24th July 2026 the Plaintifi filed submissions on the preliminary objection. On 4th November 2025 the 1st to 9th Defendants filed the instant application together with the documents said to be annextures to the Supporting Afidavit, at 10:44 hours. On 6th November 2026 at 20:06 hours the 1th to 9th Defendants filed submissions on the preliminary objection, and the List of Documents in support. The preliminary objection has since been determined by this Court, with a finding that it did not merit hence dismissed, paving way for the hearing of the instant application. 40. On 7th November 2025 the Plaintifi filed Grounds of Opposition to the instant application on 1st December 2025. The 1st to 9th Defendants filed written submissions on the application on 1st December 2025, at 17:05 hours. The plaintifi’s advocates filed his and a Replying Afidavit to the instant application on the same date. That concluded the filing of documents for far made in this matter. Clearly, as can be noted from the filings so far, there is no Defence or Defense and Counterclaim that have been filed for and on behalf of the 1st to 9th Defendants. Also, there is none for and on behalf of 11th to 12th Defendants. 41. With this background in mind, it is clear that the 1st to 9th Defendants have not filed any defense or a Counterclaim which can go on trial as against the Plaintifi in this matter. It basically means that there is no existence of a claim or case that can be said to have a probability of success or otherwise. It also goes without saying then that even though the applicants have deposed that they are the absolute owners of the suit property and that it is being wasted or shall be wasted hence they sufier repairable harm, there is no existence of a valid claim on it as against the plaintifi. It further means that once this application is determined there will be nothing on the part of the Defendants to go for trial except for the plaintifi to proceed against them by way of formal proof have the basis for the grant of an injunction. To do so would be a step in vain. 42. This Court has on a number of occasions indicated that for a prima facie case to be established there has to be a claim as against the party against whom the injunction is sought. Without a claim the depositions and prayers stand on a hollow prism which collapses immediately after the application is determined. In those circumstances it would be an absurdity to grant an injunction in a matter where there is no claim or counterclaim as against the party the order is sought. 43. In the circumstances of this case, then, there would be no basis to plant the injunction. I therefore dismiss the application with costs to the Respondent who opposed it. This matter is hereby fixed for mention on 5th of July 2025 for confirmation of compliance with Order 11 of the Civil Procedure Rules, 2010. 44. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3866/eng@2026-06-19 8

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RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 19TH OF JUNE 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of, Mr. Maroa Advocate for the applicants Ms. Oyala Advocate for the Respondent No appearance for the 11th and 12th Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3866/eng@2026-06-19 9

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