Nthenge v Nyangi (Environment and Land Case E021 of 2025) [2026] KEMC 289 (KLR)

3. a) The plaintifi is the proprietor of the suit parcel of land; b) The defendant recently trespassed onto part of the suit land and destroyed pasture thereon in preparation for ploughing and cultivating; c) The defendant is threatening violence to the plaintifi and his workers, making it dificult for the plaintifi to use the land; d) The plaintifi has a prima facie case with high chances of success since the suit land is registered in his name, having paid all dues to the settlement fund trustees; e) The defendant has no right over the suit property; f) If the defendant is not stopped, the plaintifi will lose all the grass and pasture on the suit land; g) If the orders are not granted, the plaintifi will sufier irreparable damage which cannot be compensated by way of damages. The plaintifi attached copies of various documents in support of his case. Response By The Defendant 4. The defendant opposed the application by filing a replying afidavit. He deposed that the suit land was registered in the name of his grandfather one Mangi Somba (deceased). That his grandfather was allocated land parcel number 75 Kai B settlement scheme, which he occupied. The defendant further deposed that Mangi Somba died intestate but had given directions on where each of his children would occupy. That the defendant’s father was allocated the whole of the suit land to occupy and use and when he died, the defendant and his siblings have been in occupation and use of the land without any interference from anyone including the plaintifi. The defendant stated that the parcel claimed by the plaintifi was hived ofi from land parcel No. 75 Kai B settlement scheme, following illegal sub-division of the land by the plaintifi. 5. The defendant deposed that he has been carrying out farming activities and even constructed a borehole on the suit land, a fact well known to the plaintifi. That the documents relied upon by the plaintifi are all fraudulent and illegal. The defendant further deposed that the plaintifi has not disclosed the origin of his claim. The defendant attached copies of documents in support of his position. Main Issues For Determination 6. In my view, the main issues for determination are: a) Whether the plaintifi is entitled to orders of injunction as against the defendant as prayed for in his application; b) What other orders should the court make? c) Who should bear costs of the applications? The Plaintifi ’s Submissions 7. The plaintifi submitted that he had established a prima facie case to show that he was the registered owner of the suit parcel of land. That the defendant had not attached any documents to show the existence of Plot No. 75 Kai B settlement scheme. The plaintifi argued that he had established a prima facie case with high chances of success. On irreparable harm, the plaintifi relied on the photographs attached to the supporting afidavit and alleged that the defendant had not attached any evidence to https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/289/eng@2026-06-16 2

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show that he has been on the suit land. That the defendant has not attached any letter of ofier to either his deceased grandfather or father. The plaintifi argued that if an order of injunction is not granted, he will sufier irreparable harm that cannot be compensated by way of damages. 8. The plaintifi contended that even the balance of convenience tilts in his favour as he has an ascertainable interest in the suit land. The plaintifi urged the court to grant the injunction in order to preserve the suit property. The plaintifi relied on the following authorities: a) Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) b) Pius Kipchirchir Kogo v Frank Kimeli Tena [2018] eKLR; c) Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR. The Defendant’s Submissions 9. The defendant submitted that the photographs relied upon by the plaintifi are inadmissible as they ofiend the provisions of sections 78 and 106B of the Evidence Act. That the plaintifi annexed a letter to the Agricultural oficer, an indication that the alleged damage can be quantified. The defendant argued that the application fails the test for irreparable damage. The defendant further submitted that from the plaintifi’s pleadings, the boundaries of the suit land are unclear. That the defendant has been in occupation and use of the suit land and as such, the court cannot issue injunctive orders in respect of a parcel of land whose boundaries are unclear. 10. The defendant further argued that if the injunction is granted, it will amount to an eviction. That the balance of convenience tilts in favour of the defendant who has been using the suit land. The defendant’s submissions appear to be incomplete. He attached copies of the following authorities: a) Equity Traders Limited v John & 2 others; Bazalel (plaintifi); Mukindia & another (defendant) [2024] KEELC 1668 (KLR); b) Nganda Kalandi v Timothy Mutinda Nzioka [2012] eKLR. Analysis And Determination The legal provisions 11. 12. Section 1A of the Civil Procedure Act provides as follows: (1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and afiordable resolution of the civil disputes governed by the Act. (2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give efiect to the overriding objective specified in subsection (1). (3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that efiect, to participate in the processes of the Court and to comply with the directions and orders of the Court". Section 1B provides as thus: (1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims— (a) the just determination of the proceedings; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/289/eng@2026-06-16 3

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13. (b) the eficient disposal of the business of the Court; (c) the eficient use of the available judicial and administrative resources; (d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost afiordable by the respective parties; and (e) the use of suitable technology". Section 3A provides: “ Nothing in this Act shall limit or otherwise afiect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court". Order 40 rule 2 provides as follows: 14. 15. (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintifi may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right. (2) The court may by order grant such injunction on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court deems fit". I have carefully considered the application together with the documents in support thereof as well as the response by the defendant. I have further considered submissions by the parties and directed my mind to the applicable law. In the case of Assand v Pettitt [1989] KLR 241, it was held that the object of a temporary injunction is to keep things in status quo so that if at the hearing the plaintifi obtains a judgment in his favour, the defendant will have been prevented from dealing in the meantime with the property in such a way as to make that judgment inefiectual. The principles to be considered by the court when considering an application for a temporary injunction were laid down in the leading authority of Giella v Cassman Brown & Co. Ltd [1973] EA 358. The principles are that: i. The applicant must establish a prima facie case with a probability of success; ii. The applicant must show that he will sufier irreparable harm which cannot be adequately compensated by an award of damages; iii. If the court is in doubt, it should decide the application on the balance of convenience. However, in considering such an application, the court should be careful not to decide substantive issues at the interlocutory stage. My view is fortified by the Court of Appeal's finding in the case of Shitakha v Mwamodo & 4 Others [1986] KLR 445. A similar view was held by the same court in the case of Mbuthia v Jimba Credit Finance Corporation & Another [1988] KLR 1 where the court held that the correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side's propositions. The court further held that where the disputed facts raised doubt in the court's mind as to which party would be proved right at the trial, the court would comfortably consider the balance of convenience. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/289/eng@2026-06-16 4

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16. The Court of Appeal in the case of Mureithi v City Council of Nairobi, Nairobi Civil Appeal No. 5 of 1979 (UR) held that the power to grant or deny an application for a temporary injunction is within the discretion of the court but such discretion must be exercised judiciously. It is a fundamental rule that the court will grant an injunction only to support a legal right. This position was buttressed in the English case of Montgomery v Montgomery [1964] 2 ALL ER 22. It has been held that the injunction sought must relate to the claim in the suit or rather the relief sought in the suit. The case of Winstone v Winstone [1953] 3 ALL ER 580 is germane on this point. In the said case, Winn J held as follows: “ In my view these words are to be construed and understood as limited to the granting of an injunction ancillary to and comprised within the scope of the substantive relief sought in the proceedings in which the application for injunction is made ". 17. A similar view was made in the case of McGibbon v McGibbon [1973] 2 ALL ER 836, where it was held that an injunction must bear some relationship to the cause of action. 18. From the above authorities, it is my considered view that while considering an application for a temporary injunction, the court must consider the plaint and the statement of defence alongside the afidavits in support of or in opposition to the application. The injunction must be based on the relief claimed by the plaintifi in the plaint. Numerous court decisions have held the position that an interlocutory injunction ought not to be granted if the prayers in the application are at variance with the suit. The leading case on this point appears to be the case of Dismas Oduor Owuor v Housing Finance Co. (K) Ltd & Another, HCCC No. 630 of 2001 where Ringera J (as he then was) held as follows: “ The plaintifi's interlocutory application of 7th June, 2001 is inconsistent with the prayers sought in the suit. Whereas in the suit he is seeking an injunction to restrain the sale of the charged property, in the application he is seeking to restrain the transfer of the said property to the auction purchaser and other consequential or subsequent dealings with the property. The plaintifi, in my opinion, cannot be granted interlocutory orders, which are at variance with the permanent orders sought. I think he goofed in not amending his plaint before amending the chamber summons. He could not be allowed to injunct a transfer by the chargee to the auction purchaser without amending his plaint to challenge the auction sale complained of..." 19. I have perused the plaint as well as the statement of defence and find that the prayers sought have a bearing on the application. The Supreme Court of India in the case of State of Orissa v Madan Gopal Rungta [1952] AIR 12, 1952 SCR 28 held that it was a well stated principle of law that an interim relief can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his rights in a suit or any other proceeding. The foundation of an interlocutory application such as the instant one is the plaint. I have considered the averments made by both parties. The following stand out: a) The plaintifi is, prima facie, the registered proprietor of the suit parcel of land; b) It is not clear whether the plaintifi is in actual occupation of the suit parcel of land and to what extent, but there is an indication that the defendant is in occupation and use of the said parcel of land; c) Both parties claim ownership of or beneficial interest in the suit land, although there is no counter-claim by the defendant. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/289/eng@2026-06-16 5

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20. It would also appear that the plaintifi is not sure of the boundaries of his alleged parcel of land and is also not sure of the extent of the alleged encroachment by the defendant. Most of the issues raised by the parties can best be determined at the hearing and upon evidence being adduced. However, one thing is clear to me. That there is need to preserve the suit property pending the hearing and determination of the suit. If the defendant is in occupation and use of the land, granting the order sought as suggested by the plaintifi would amount to evicting him and determining the suit prematurely. In the same breath, allowing either party to dispose of the suit parcel of land would defeat the purpose of the suit. 21. In my view, when dealing with matters involving land, the court must look beyond the traditional principles of Giella v Cassman Brown. The court must seek to preserve the subject matter of the suit which is land. In as much as the value of land is quantifiable, there is more value to it than just monetary. The court must however be cautious with the extent of the preservation. In my view, neither party will be prejudiced if the suit property is preserved in a manner that will not cause hardship to the parties. There are serious questions or issues that will require the court to determine at a full hearing. There is need to maintain the status quo upon defined terms. Disposition 22. In view of the foregoing and in the interest of justice, I make the following orders: a) The application dated 29/4/2025 is hereby compromised in the following terms; b) Both parties are hereby restrained either by themselves, their agents, servants, employees or anyone acting on their behalf, from sub-diving, charging, selling, alienating or in any other manner substantially changing the character of land parcel No. 483 Kai B Settlement Scheme, or what the defendant believes to be part of Plot No. 75 B settlement scheme, pending the hearing and determination of the suit; c) No further developments such as constructions should be undertaken by either party pending the hearing and determination of the suit. This extends to cutting down of trees on the suit parcel of land. The defendant or any other person claiming through him should not extend the area for cultivation further than what is already under cultivation; d) No party should interfere with the other’s property currently on the suit land pending the hearing and determination of the suit; e) Parties are directed to keep the peace and should there be a breach of the same, the aggrieved party will be at liberty to move the court appropriately or the relevant authorities for redress; f) The costs of the application shall abide by the outcome of the suit. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 16TH DAY OF JUNE 2026. Y.A SHIKANDA SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/289/eng@2026-06-16 6

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