ABRAHAM KIBET CHEPKWONY VS Independent Policing Oversight Authority AND GEOFFREY KIPKORIR SANG AND 2 Others

a) Spent

2. The application is supported by the annexed affidavit of Abraham Kibet Chepkwony, the Plaintiff/Applicant, sworn on 28th May, 2025, where he   deponed that he is the absolute proprietor of land parcel No. MOLO SOUTH/LANGWENDA BLOCK 3/135 (SET KOTES), and was issued with a title deed in his name on 26th June, 2013, after purchasing the suit land from Andrew Ombati Kyambatu.

3.  In his deposition, the Applicant stated that on 9th March, 2025, he was approached by the Defendant, who was in the company of about five other people. He was informed that they had earlier visited his land and met people claiming to be his agents who negotiated with them for the purchase of his parcel of land. He further deponed that he was informed that they had proceeded to make payments to the said people, and one of them was posing as the applicant.

4. The Applicant further deponed that he was shown a sale agreement that had a signature that was not his,   despite bearing his name and identity card number. According to the Applicant, he had  used his title deed to secure a loan from the National Bank of Kenya, hence they could not have been given  the original title.

5. He further stated that in April 2025, he was arrested and charged together with other people, unknown to him, with the offense of conspiracy to defraud contrary to section 317 of the Penal Code and arraigned in MOLO CMCR NO E0581/2025, which case is still ongoing. Further, on 26th May, 2025, the Defendant, in the company of more than twenty goons, set up a structure and a fence around the property and destroyed crops.

6. The Applicant urged the court to grant the orders sought, as he ought not to be dispossessed of his land in favour of a stranger whose only claim is in an impugned agreement executed by a fraudster.

7. Geoffrey Kipkorir Sang, the Defendant/Respondent, filed a Replying Affidavit sworn on 16th June, 2025, and  deponed that he is a Police Officer and has worked with the National Police Service for a period of seventeen years. He further stated that he visited the site and met one Sammy Kiplagat Sang, who introduced himself as the caretaker of  the property   in the company of three people, namely,  Rodger Korir, Titus Cheruiyot, and Nicholas Cheruiyot, who were agents of  Abraham Kibet Chepkwony, the owner of the property.

8. The Respondent further deponed that he requested a copy of the title deed, identification number, and a search in respect of the suit property and the title deed, and a search was availed by Mr. Cheruiyot.  He also stated that  they proceeded with the transaction and a sale agreement was prepared by OOGA and Company Advocates, and  at the  law firm, one of the persons introduced himself as Abraham Kibet, the owner of the property.   The Respondent deponed that they agreed at a consideration  of  Ksh 6,400,000/= of  which he paid Ksh 800,000/= in cash and a sum of Ksh 3,200,000/= through KCB account number 1338240021, which account he was informed belonged to one Bismark Kiprono Biwott, the applicant’s son.

9. It was the Respondent’s deposition that on 23rd April, 2025, they met the local Chief and elders of the area to discuss the issue of the property and the Applicant herein was present who confirmed that he had issued the documents in respect to the property to one Mr. Cheruiyot whom he acknowledged  that he knew, further that the  Applicant also confirmed that  he gave the documents  as he  wanted to sell the  property sold and urged the court to dismiss the  application with costs.

10. Abraham Kibet Chepkwony, the Plaintiff/Applicant, filed a Supplementary Affidavit sworn on 7th July, 2025, and  deponed that the Defendant has no legal basis for trespassing into his property as no party can benefit from an illegality.

11. Mr. Kipkoech, counsel for the Applicant, filed submissions dated 7th July 2025,  and identified the following issues for determination:

a) Whether the application is merited?

12. On the first issue, counsel submitted that the Defendant, after discovering that the land was sold to him fraudulently and without the Plaintiff’s knowledge, lodged a complaint, which is the subject of an ongoing criminal case in Molo CMCR E581 of 2025. Counsel submitted that by pursuing the criminal case, he implicitly acknowledges that the valid sale agreement exists, and he cannot later claim that he purchased the property in good faith, as this would amount to approbation and reprobation.

13. Counsel submitted that the Plaintiff  neither entered into an  agreement  nor a consent with the Defendant for the sale of his property. Counsel relied on Article 162 (2) (b) of the Constitution of Kenya, Section 13 (2) of the Environment and Land Court Act and Sections 24 (a), 25 and 26 of the Land Registration Act.

14.   According to counsel, the  Applicant has  established a prima facie case with a probability of success, and further that the  balance of convenience tilts in favor of the Plaintiff as he is likely to suffer more damage than the Defendant if the injunction is not granted.

15. Counsel relied on the  cases of  Dr Joseph Arap Ngok vs Justice Moijo Ole Keiwa & 5 others, Civil Appeal Number Nai 60 of 1997, Evans vs Bartlam [1937] 2 ALL ER 649, Lwanga vs Mubiru & others (Civil Appeal 18 of 2022) [2024] UGSC7, Dina Management Limited vs County Government of Mombasa & 5 others [2023] KESC 30 (KLR), Joash Ochieng Ougo & another vs Virginia Wambui Otieno [1987] eKLR, Kenya Airline Pilots Association (KALPA) vs Cooperative Bank of Kenya Limited & another [2020] eKLR, Mrao Limited vs First American Bank of Kenya Limited & 2 others [2003] KLR 125 and Alice Chemutai Too vs Nickson Kipkurui Korir & 2 others [2015] eKLR,  and urged the court to grant the application  as prayed with costs.

16. Mr. Makori, counsel for the Respondent, filed submissions dated 10th September 2025,  and identified the following issues for determination:

a) Whether the Applicant has a prima facie case with high chances of success?

17. On the first issue, counsel submitted that the Applicant intends to repossess the property, which he sold to the Defendant, denying him his proprietary rights. Counsel submitted that the applicant has failed to demonstrate a prima facie case to warrant issuance of injunctive orders, and relied on the cases of  Giella vs Cassman Brown (1973) EALR 358, Vivo Energy Kenya Limited vs Maloba Petrol Station Limited & 3 others [2015] eKLR, National Bank of Kenya vs Duncan Owour Shakali & Another CA No 9 of 1997 and Habib Bank Ag Zurich vs Eugene Marion Yakub CA No 43 of 1982 (unreported).

18. On the second issue, counsel submitted that the applicant has not demonstrated the injury he will suffer if the injunction is not issued. Further that the Defendant is the one in possession of the suit property.  According to counsel, the Applicant has not demonstrated that  he will not be able to be  compensated by way of damages  and relied on the case of Nguruman Limited vs Jan Bonde Nielsen (2014) eKLR.

19. On the third issue,  counsel submitted that the applicant is not in occupation of the suit property and therefore the balance of convenience cannot tilt in his favor and relied on the  cases of Amir Suleiman vs Amboseli Resort Limited [2004] 2KLR 589 and Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR. Counsel  urged the court to dismiss the application with costs.

20. The issue for determination is whether the Applicant has met the threshold for the grant of a temporary injunction. For an order of injunction to issue, an Applicant must satisfy three conditions set out in the case of Giella Vs. Cassman Brown (1973) EA 358, namely; establish a prima facie case with a probability of success, irreparable harm that cannot be adequately compensated by an award of damages and if the Court is in doubt, it should decide on a balance of  convenience.

21. Order 40 Rule 1 of the Civil Procedure Rules 2010 provides as follows:

22. In the case of Rockland Kenya Limited v Elliot White Miller [1994] eKLR, the court held as follows:

“The object of an interlocutory injunction is to protect the Plaintiff against injury by violation of his legal right for which he could not be adequately compensated in damages recoverable in the action if the matters in dispute were resolved in his favour at the trial. However, his need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal right for which he could not be adequately compensated under the Plaintiff’s undertaking in damages if the subject-matter of the trial was decided in his favour. It is a remedy that is both temporary and discretionary. In cases where the legal rights of the parties depend on facts that are in dispute between them, the evidence available to the Court at the hearing of the application for an interlocutory injunction is given on affidavit and is therefore incomplete as it has not been tested by oral cross-examination.  At that stage therefore, it is not the function of the Court to attempt to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations.”

23. In the case of  Robert Mugo Wa Karanja Vs  Ecobank (Kenya ) Limited & Another [2019) eKLR  the court  stated that;

“circumstances for consideration before granting a temporary injunction under order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”

24.  The grant or refusal to grant an order of temporary injunction is discretionary, but the court must exercise the discretion judiciously, taking into account the  rights of the parties to the suit and the interest of justice. Both parties claim to be in possession, but the Respondent does not deny that the suit land belonged to the Applicant, which he purports to have bought from the agents of the Applicant.

25.  From the affidavit evidence tendered by both the Applicant and the Respondent, it is imperative to protect the substratum of the case by granting an order of temporary injunction. The  parties can fast-track the hearing of the suit to enable the court to determine the issue of ownership and whether there was any fraud involved in the transaction in respect of the suit property.

26.  I have considered the application, the submissions by counsel, and find that the Applicant has established a prima facie case with a probability of success, and I therefore make the following specific orders:

a) A temporary injunction is hereby issued restraining the defendant, whether acting by himself or through his agents, servants, hoodlums, employees or through anybody acting on his authority, from entering, encroaching, trespassing, developing, selling, charging, or leasing land parcel No MOLO SOUTH/LANGWENDA BLOCK 3/135 (SET KOTES) pending the hearing and determination of the suit herein.