Patrick Ng'ang'a Mwangi v Eliud Munene Rigu & Benson Mwangi Kirong'o

land”) from Moses Hudson Kang’ethe on 20 th February 2026 at a sum of Kshs. 4,000,000/=. He paid a deposit of Kshs. 3,000,000/= as the balance was payable upon completion of the transfer process. Upon conducting his due diligence, he found out that the land had initially been leased to the 1 st defendant but the lease had been lawfully terminated by the vendor after his gross violation of the lease agreement. On 26th February 2026, he discovered that the 1st defendant had lodged a caution on the suit land. The 1 st defendant had also sublet the suit land to the 2nd defendant who had since embarked on excavation activities on the land. The plaintiff asserted that the activities by the 2 nd defendant were causing environmental degradation, soil erosion and permanent wastage of his land. He therefore sought the following orders in the application dated 3 rd April 2026; a. Spent b. That a temporary injunction do issue restraining the 1 st and the 2nd defendants, their agents, servants, MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 2 PAGE

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employees and/or assigns from continuing with any form of excavation, stone crushing or any other activity on land parcel Loc 7/Gakoigo/2106 pending the hearing and determination of the suit; c. THAT the 2nd defendant be ordered to vacate the suit land immediately and remove the jaw-crusher machine and all other equipment forthwith; d. THAT the caution lodged by the 1st defendant on land parcel Loc 7/Gakoigo/2106 on 26/2/2026 be lifted/removed forthwith to enable transfer of the suit land into the Plaintiff’s name e. THAT the defendants do pay the costs of this application; and f. THAT such further or other relief as this Honorable Court may deem just and expedient be granted. 3. In response, the 1st defendant, Eliud Munene Rigu, averred in his affidavit sworn on 2nd June 2026 that he had leased the suit land from the registered owner, Moses Hudson MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 3 PAGE

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Kang’ethe Waichugu and his lease had been extended in September 2025, for a period of 3 years, up to 2028. He thereafter sub-let the land to the 2 nd defendant. He claimed that the 1st defendant owed him a total sum of Kshs. 2,699,000/=. He asserted that the registered owner had entered into the alleged agreement with the plaintiff while his lease was still subsisting. He denied the authenticity of the termination notice purportedly issued after the sale agreement and asserted that he was not served with the same. 4. According to the 1st defendant, there was no agreement between the plaintiff and the registered owner. He claimed that the plaintiff and the registered owner were working in cahoots with the 2nd defendant to enable him avoid paying his debt. He pointed to another sale agreement between the registered owner and the 2 nd defendant to support his claim. The 1st defendant admitted that he had placed a caution on MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 4 PAGE

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the land but stated that he had done so to protect his interests. 5. For his part, the 2nd defendant, Benson Mwangi Kirong’o, swore an affidavit on 4th September 2026 asserting that he did not oppose the application in so far as it sought the removal of the caution placed on the suit land by the 1 st defendant and a declaration that the plaintiff is the lawful bona fide purchaser of the suit land. He explained that he had entered into an agreement with the 1 st defendant for lease of land parcel number 1641 which belongs to him. However, the 1st defendant placed him on land parcel 2106 leading him to believe that he was in occupation of land parcel 1641. He averred that he was willing to abide by the orders of the court to remove the jaw crusher machine on the suit land subject to his right to recover all the monies paid to the 1st defendant and losses incurred as a result of his misrepresentation. He averred that any irreparable harm alleged by the plaintiff was primarily occasioned by the 1 st MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 5 PAGE

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defendant’s conduct. He stated that the balance of convenience as between him and the plaintiff was best served by allowing the orders sought by the plaintiff. ii. THE APPLICATION DATED 30TH APRIL 2026 6. The 2nd defendant also moved the court vide an application dated 30th April 2026 seeking the following orders; a. Spent; b. The orders issued on 14th April 2026 be supervised by Maragua Officer Commanding Station for enforcement in particular to the 2nd defendant; c. Any party in breach be held in contempt; d. Moses Hudson Kang’ethe Waichugu be enjoined as a third party in this suit; e. In the alternative the whole suit be dismissed with costs to the 1st defendant; and f. Any other order this court may deem fit to grant. MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 6 PAGE

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7. In support of the application, the 1 st defendant reiterated the averments made in his response to the application dated 3 rd April 2026. He emphasized that there was no real agreement between the plaintiff and the registered owner. In his view the annexed sale agreement did not confer any ownership rights and he would be seeking proof of payment. He was of the view that the plaintiff was being used by the 2 nd defendant to frustrate the contract he had with him and evade payment. His position was that without any valid transfer, the orders sought were baseless and the only legal issue alive was his lease which would expire in 2028. 8. The plaintiff filed grounds of objection dated 8 th May 2026 in response to the application. He stated that no application of joinder of a Third Party/Interested Party had been filed as required by the law and in any case, there was no legal basis for joinder of a party who is a witness for the plaintiff. MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 7 PAGE

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B. ISSUES, ANALYSIS AND DETERMINATION 9. The issues arising for determination from the pending applications and the parties’ depositions are; a. Whether a temporary injunction should issue restraining the defendants from continuing with any form of excavation, or other activity on land parcel Loc 7/Gakoigo/2106; b. Whether the 2nd defendant should be ordered to vacate from the suit land and remove the jaw-crusher machine and all other equipment forthwith; c. Whether the caution lodged by the 1 st defendant over land parcel Loc 7/Gakoigo/2106 should be lifted; d. Whether any party is in breach of the orders of the court issued on 14th April 2026 and what orders should be issued as a result; e. Whether Moses Hudson Kang’ethe Waichugu should be joined to this suit as a third party; MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 8 PAGE

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f. Whether the whole suit against 1 st defendant should be dismissed with costs. 10. The plaintiff has sought various injunctive orders against the defendants. In the locus classicus, Nguruman Ltd v Nielsen & 2 others (Civil Appeal 77 of 2012) [2014] KECA 606 (KLR) (4 April 2014) (Judgment) the Court of Appeal set out the principles for consideration of an application for an interlocutory injunction thus; “…In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a) establish his case only at a prima facie level, (b) demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 9 PAGE

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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 sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, 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. MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 10 PAGE

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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. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted…” 11. Regarding the first hurdle, that is whether a prima facie case has been established, the court in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR) (7 March 2003) (Judgment) defined a prima facie case as “... a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 11 PAGE

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which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter…” 12. The plaintiff’s interest in the suit land is based on the claim that he has purchased the suit land from the registered owner and has paid a substantial part of the purchase price of Kshs. 4,000,000/=. Although the 1st defendant denies the veracity of the plaintiff’s claim, the plaintiff has produced a copy of the sale agreement dated 20 th February 2026 in support of his claim. The plaintiff is only required to present a prima facie case at this state. This court further notes that the 2nd defendant admits that he sublet a parcel of land from the 1st defendant but was not aware that he had been misdirected to the suit land as opposed to land parcel 1641, the land he actually leased. He stated that he was willing to remove the jaw crusher machine from the suit land subject to his right to recover damages from the 1 st defendant for misleading him. MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 12 PAGE

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13. Based on the foregoing averments by the parties, it is evident that the 2nd defendant has placed excavation equipment on the suit land. If allowed to proceed with excavation activities, the suit land would be significantly altered. There is no telling whether the land would be restored to its original state if the plaintiff’s claim to the suit land is found to be merited. Consequently, this court finds that the plaintiff has established a prima facie and demonstrated that irreparable injury would occur if a temporary injunction is not granted restraining the defendants or their agents from continuing with excavation or other activities on the suit parcel of land. The balance of convenience also leans in favor of the plaintiff. The defendants could easily resume their activities if their claim is justified whereas the suit land may be altered permanently. 14. The plaintiff has also urged the court to issue orders directing the 2nd defendant/respondent to vacate the suit MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 13 PAGE

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land and remove all other equipment from the suit land forthwith. The court notes that the 2 nd defendant is not opposed to those orders. However, the same is in the nature of a mandatory injunction which is ordinarily not granted at interlocutory stage. (Kenya Breweries Limited & another v Washington O. Okeyo [2002] KECA 284 (KLR) This court will therefore not issue orders directing the 2 nd defendant to vacate from the suit land. However, nothing bars the parties from mutually consenting to his vacation. 15. Similarly, the orders sought for removal of the caution placed on the land by the 1st defendant cannot be issued at this stage. In the case of Joseph Kibowen Chemjor v William C Kisera [2013] KEELC 140 (KLR) the court held as follows on claims for removal of cautions; “The court held that a plaintiff must prove on a balance of probabilities why the defendant has no right to place the caution on his title and why the caution placed by the defendant needs to be removed. This court MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 14 PAGE

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therefore declines to issue the orders sought at this stage.” 16. The 1st defendant has also urged this court to direct the OCS Maragua to supervise the orders issued by this court on 14 th April 2026. This court had directed the defendants to inter alia cease from continuing with any form of excavation, stone crushing or any activity on the suit land in the interim. While the 1st defendant asserts that any party in breach ought to be cited for contempt, the 2 nd defendant has averred in his replying affidavit sworn on 4 th September 2026 that he is willing to abide by the orders of this court and has offered to vacate the suit land and remove the jaw crusher machine from the land. As it has not been proved that the 2nd defendant is in breach of the court’s orders, the orders sought by the 1st defendant to enforce the orders issued on 14th April 2026 are premature at this stage. They may however be sought if a breach of the court’s orders occurs. MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 15 PAGE

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17. The 1st defendant has further urged this court to have the proprietor of the suit land, Moses Hudson Kang’ethe Waichugu, joined to this suit as a third party. The plaintiff opposes the orders sought on the grounds that the proprietor is his witness. The parties agree that the plaintiff is not the registered proprietor of the land. On the other hand, the 1st defendant has made various claims against the registered proprietor. In particular, he asserts that he has a subsisting lease over the suit land which lapses in 2028. The 1st defendant must therefore have an opportunity to ventilate his issues against the registered proprietor as the suit against him rests on whether he had a legal interest over the suit land, or not. He is however required to adhere to the laid down procedure to have the registered proprietor joined to this suit as a third party. 18. As to the 1st defendant’s assertion that the suit against him ought to be dismissed, this court is guided by the legal principle that a court should aim at sustaining rather than MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 16 PAGE

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terminating a suit. The plaintiff has raised bona fide issues against the 1st defendant which require a response from him. Consequently, this court declines the invitation to dismiss the suit against the 1st defendant. 19. Ultimately, this court disposes of the applications dated 3 rd April 2026 and 30th April 2026 thus; a. A temporary injunction is hereby issued restraining the defendants, their agents, servants, employees and/or assigns from continuing with any form of excavation, stone crushing or any other activity on land parcel Loc 7/Gakoigo/2106 pending the hearing and determination of the suit; b. The 1st defendant is granted leave to file an application for leave to issue a third-party notice against Moses Hudson Kang’ethe Waichugu in accordance with the Civil Procedure Rules within fourteen (14) days of the date hereof; c. The costs of the applications shall be in the cause. MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 17 PAGE

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DATED, SIGNED AND DELIVERED AT MURANG’A THIS 7TH DAY OF OCTOBER 2026. HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE RULING READ ON THE VIRTUAL PLATFORM IN THE PRESENCE OF; C/A MR. MUYA N/A FOR THE PLAINTIFF MS. MACHARIA H/B FOR MR. KIMWERE FOR THE 1ST DEFENDANT NO APPEARANCE FOR THE 2ND DEFENDANT MCELC E028 OF 2026 PATRICK NGANGA MWANGI VS ELIUD MUNENE RIGU & BENSON MWANGI KIRONGO - RULING 18 PAGE

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