1. Before this Court for determination is a Notice of Motion dated 15th May 2025, supported by a Certificate of Urgency and the affidavit of Benjamin Barasa Wafula, seeking interlocutory reliefs primarily aimed at restraining the Defendants from harvesting, selling or otherwise dealing with trees standing on LR No. Ndivisi/Ndivisi/338, now subdivided into LR Nos. 3450 and 3451.
2. The Application invokes Order 40 Rules 1–3 of the Civil Procedure Rules, Articles 22, 27, 40 and 47 of the Constitution, and alleges violation of property rights, discrimination, abuse of police power, and threatened deprivation of land-related resources.
3. The issues arising for determination are threefold: first, whether the Applicants have satisfied the legal threshold for grant of temporary injunctive relief; second, whether this Court has jurisdiction to issue the police- and prosecution-related orders sought; and third, whether the prayers for vesting and monetary deposit orders are grantable at an interlocutory stage.
4. On the first issue, the principles governing the grant of a temporary injunction were laid down in Giella v Cassman Brown & Co. Ltd [1973] EA 358, and remain binding. The Applicants assert ownership of the suit parcels through a transfer effected in 2015, noting that title to land carries with it the right to enjoy all appurtenances, including trees, subject only to lawful limitation, a position anchored in sections 24 and 25 of the Land Registration Act and Article 40 of the Constitution.
5. At this interlocutory stage, the Court is satisfied that the Applicants have established a prima facie case as defined in Mrao Ltd v First American Bank of Kenya Ltd [2003] KLR 125. Trees, once felled, cannot be restored; the loss complained of therefore constitutes irreparable harm, not readily compensable by damages. On the balance of convenience, preservation of the status quo best serves the interests of justice pending the determination of the substantive dispute.
6. Comparative jurisprudence supports this preservationist approach. In American Cyanamid Co v Ethicon Ltd [1975] AC 396 (UK), the court emphasized maintaining the status quo where serious issues are raised. Similarly, the Supreme Court of India in Dalpat Kumar v Prahlad Singh (1992) 1 SCC 719 held that injunctions are intended to prevent threatened violations of legal rights where damages would be inadequate.
7. On the second issue, the Applicants urge this Court to restrain the 5th and 6th Defendants from arresting, investigating, or prosecuting, and further seek judicial intervention to “address and end corruption offences.” While this Court is vested with jurisdiction under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, such jurisdiction is confined to disputes relating to land and the environment.
8. The constitutional mandate of the Director of Public Prosecutions, under Article 157, is independent and insulated from direction by any court save in exceptional circumstances. Kenyan courts have consistently held that interference with investigations or prosecutions is only permissible where there is clear evidence of abuse of process. See Meixner & Another v Attorney General [2005] 2 KLR 189 and Director of Public Prosecutions v Perry Mansukh Kansagara & 2 Others [2020] eKLR. Allegations of discrimination, unlawful arrest, torture or corruption, while grave, are more appropriately ventilated through a constitutional petition or before relevant oversight bodies, and not by way of interlocutory orders in a land dispute.
9. On the third issue, the Applicants seek orders directing the Respondents to deposit alleged proceeds from sold trees into a Judiciary account. Such orders are mandatory and final in nature, yet the facts underpinning them remain contested and unproven. It is settled law that mandatory injunctions at an interlocutory stage issue only in the clearest of cases. See Kenya Breweries Ltd v Washington O. Okeyo [2002] eKLR. The Court finds no sufficient basis to grant these prayers at this stage.
10. In the premises, the Court makes the following orders: (a) a temporary injunction is hereby issued restraining the 1st, 2nd and 4th Defendants, their agents, servants or any person claiming through them from harvesting, cutting, selling or otherwise dealing with trees standing on LR Nos. Ndivisi/Ndivisi/3450 and 3451, pending the hearing and determination of this suit; (b) the prayers seeking orders against the ODPP and Police, including restraint from investigation or prosecution and directions on alleged corruption, are declined for want of jurisdiction and legal basis; (c) the prayers seeking vesting orders and deposit of alleged proceeds are declined; and (d) costs of the Application shall be in the cause.
11. Parties are directed to take steps to expedite the hearing of the main suit.
DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 18th DAY OF December, 2025.………………………
HON. JUSTICE ENOCK C. CHERONOJUDGE
In the presence of;
1. 1ST Plaintiff/Applicant-present
2. 2nd Plaintiff/Applicant-present.
3. 3rd Plaintiff/Applicant-present.
4. Bett C/A.