I. Introduction
1. What is before the Honourable Court is a Ruling that relates to the Notice of Motion application dated 19th July 2025 instituted by DIM PROPERTIES LIMITED the Plaintiff/Applicant. It was against MARY ADDAH NZUKIE MAUREEN GRACE NZUKIE and the LAND REGISTRAR KWALE the 1st, 2nd and 3rd Defendants/Respondents herein.
2. The Application was premised upon the provisions of Sections 1A, 1B, 3A, 63 ( e ) of the Civil Procedure Act Cap. 21 laws of Kenya, Section 13 (5 ) of the Environment and Land Court Act, No. 19 of 2011, Order 40 and Order 51 of the Civil Procedure Rules 2010.
3. Upon service, the application was opposed through a Replying Affidavit sworn by the 1st Respondent on behalf of the 1st and 2nd Respondents. The Honourable Court shall be dealing with the contents of the said replies indepth at a later stage of this ruling hereof.
II. The Plaintiff/Applicant’s Case
4. The applicant sought for the following prayers:-
a) Spent.
b) Spent.
c) That pending the hearing of this application “Inter – Partes” the 3rd Defendant/Respondent be restrained from any further entries in the proprietorship register of the property Kwale/Diani Complex/199 to the Applicant’s/Plaintiffs detriment
d) That pending hearing and determination of this suit this honourable court do issue an injunction restraining the 1st and 2nd Respondents/Defendants by themselves, agents, servants, contractors or anyone acting on their behalf in any other manner howsoever from selling transferring charging entering upon carrying on any construction or otherwise dealing or interfering with the property registered as Kwale/Diani Complex/199
e) That pending the hearing and determination of the suit the 3rd Respondent/Defendant be restrained from making any further entries in the proprietorship register to the Applicant’s/Plaintiff detriment
f) That this honourable court be pleased to issue any other order it may deem fit
g) That this honourable court grants costs of the application.
5. The application was premised upon grounds listed on its face and an 18 paragraphed supporting affidavit sworn by ASHOK LABHSHANKER DOSHI a director of the Plaintiff/Applicant. The deponent averred as follows that:-
a) The Applicant holds the title and is the lawful owner of the suit property registered as Kwale/Diani Complex/199 (Hereinafter referred to as “The Suit Property”).
b) He had been in peaceful possession thereof. That however the property had been fraudulently transferred to the 1st and 2nd Respondents.
c) The Applicant had been in possession of the suit property since its acquisition in the year 1995 and had been paying all statutory dues to date.
d) The Respondents had within the course of December 2019 embarked on interfering with land records at the land registry and the said activities were informed by an attempt to fraudulently alter the ownership/registration status of the property.
e) The register relating to the property was currently missing at the land registry and that a report of the said loss had been made at the Diani Police Station.
f) Efforts to have the land register reconstructed had so far borne no fruit.
g) The Respondents had tried to interfere with the suit property in the absence of clear documentation thus raising suspicion of fraudulent and irregular dealings.
h) It was stated that the balance of probability tilted towards the Applicant who was only seeking to preserve the property pending the hearing and determination of the suit.
i) The Applicant would stand greatly prejudiced in the event that the fraudulent scheme proceeds.
j) The court was urged to allow the application as prayed.
III. The responses by the Respondents
6. In opposing the application, the Respondents filed a replying affidavit sworn by the 1st Respondent MARY ADDAH NZUKIE who averred as follows that:-
a) There was no evidence adduced to prove the legitimacy, legal status & details of beneficial ownership of the Plaintiff as well as the identification details of one Ashok Labhshanker Doshi.
b) For avoidance of doubt, the Plaintiff was a phantom entity masked to deceive, misrepresent, frustrate and perpetuate fraud on our proprietary rights & interests in the suit property. He who came to equity must come with clean hands.
c) The 1st and 2nd Defendants were the legal and absolute and indefeasible owners of the suit property having purchased it from Ali Kombo Magereni on or about the month of September 2019 for a valuable consideration.
d) The Plaintiff had not adduced any evidence to support the foundation of its alleged title. It was hanging on nothing & should therefore be disregarded
e) The Plaintiff was parading falsehoods & misrepresentation before this court as it had never been in possession/ occupation of the suit property at all times.
f) Upon complying with all legal requirements leading to successful transfer of the suit property, the 1st and 2nd Defendants/Respondents immediately took possession, quiet & peaceful enjoyment and ownership of the said property, fenced it and engaged a caretaker who had been undertaking cultivation, rearing of goats, regularly clearing bushes, and overall security of the property.
g) They had demonstrated that the procedure for transfer & subsequent registration of the suit property complied with legal requirements, and that they were in possession of the suit property which they acquired for valuable consideration, had no knowledge of any omission, fraud, mistake nor substantially contributed to it by any act, neglect or default.
h) In response to the contents of Paragraph 7 of the supporting affidavit, it was averred that the allegations that it had taken time to gain information regarding to “a person associated with activities” were wide of the mark, punctuated by misrepresentation and full of falsehoods as it was a matter of public notoriety Kwale Land Registry had never been closed (this court was invited to take judicial notice of this), the 1st and 2nd Defendants were in possession and occupation of the suit property with a caretaker on site. No scientific evidence had been adduced of how the alleged information was gained.
i) Curiously, these proceedings had commenced with lightning speed the moment the 1st and 2nd Defendants/Respondent’s lawyers applied for a Certified Copy of the Green Card of the suit property by way of a letter dated 19th May 2025.
j) Upon payment of requisite fees & lodging the request at the Registry it was discovered that “other “documents were in the parcel file. That the deponent took the initiative of visiting the land registry to verify the same, where she was shown foreign documents associated with the Plaintiff in the parcel file.
k) She promptly proceeded to the County Criminal Investigations Office to lodge a complaint of suspected fraudulent dealings on the suit property by the Plaintiff. She was aware that DCI commenced investigations.
l) According to the deponent the Plaintiff has initiated this suit as a cover up of its wrongdoing. That the Plaintiff having admitted to be indolent & having found profound peace in the art of doing absolutely nothing could not run away from her fraudulent scheme by hiding behind these court proceedings.
m) In response to the contents of Paragraph 8 of the Supporting Affidavit, the Land Register for the suit property was available, and had never been missing at any given time. In any event, the Plaintiff had not annexed an application for official search (LRA -84), any letter & payment receipt of requisite fees requesting the land registrar to issue her with a certified copy of land register.
n) Further that the purported document adduced as a police abstract was obtained by misrepresentation of material facts & falsehoods, as the Plaintiff had admitted that records land registry records as at 23rd January, 2020 showed the 1st & 2nd Defendants to be the duly registered owners of the suit property.
o) The letter dated 18th February 2020 was not certified. Thus, it could not hold the weight of a genuine public document in view of Section 83 (1) of the Evidence Act. Notwithstanding, Under Section 33 (5) of the Land Registration Act, 2012, the Land Registrar was obliged to be make inquiries and be satisfied of the loss/ destruction of a register before issuing the 60 days’ gazette notice.
p) The Plaintiff had not annexed the “draft gazette notice” which was to be published in the Kenya Gazette nor the Gazette Notice itself as required by law. Further, the Plaintiff was dangling suspicious documents as no supporting evidence were availed to the Registrar to initiate the process of reconstruction of register as provided for under Rule 27 (1) of the Land Registration (General) Regulations, 2017.
q) For avoidance of doubt, the Applicant had not adduced in evidence Form LRA -12 (application form), a statutory declaration, certified copies of identity card of its director, coloured passport size photos, certified copy of certificate of incorporation, certified board resolution/ extract minutes, official search (CR - 12), any official search from the land registry evidencing that it owns the suit property.
r) The deponent held a valid title by virtue of being absolute and indefeasible owners, bona fide purchasers for value without notice, and currently in possession, actual occupation and peaceful enjoyment of the suit property.
s) They were apprehensive that if the orders sought were granted, they stood to suffer irreparable injury incapable of being compensation by way of damages by a Plaintiff whose legitimacy, legal identity & details of beneficial ownership as well as identity details of her purported representative in this proceedings remains unknown.
IV. 3rd Respondents Case
7. On 22nd October 2025, Mr Koech Counsel for the 3rd Respondent intimated the court that they would not participate in the application.
V. Submissions
8. On 22nd October 2025 while all the parties were present in Court, they were directed to have the application dated 19th July 2025 disposed of by way of written submissions. Pursuant to that, it is only the Defendant/Applicant obliged and a ruling date was reserved for 10th March 2026.
VI. The Written Submissions by 1st and 2nd Defendants/Respondents.
9. The Law firm of Messrs. Njuru & Company Advocates filed submissions on behalf of the 1st and 2nd Defendants. Mr. Njiru Advocate did submit that the Plaintiff lacked the legal capacity to institute these proceedings, including filing the instant application as its legitimacy, legal identity & ownership has not been disclosed. That it is trite law that questions of capacity & locus standi go to the jurisdiction. If jurisdiction is lacking, any decisions on merits would be a nullity or advisory. It was submitted that the purported Board Resolution offended the mandatory provisions of Section 35 of the Companies Act, 2015 & Order 4 Rule 1(4) of the Civil Procedure Rules 2010 as it does not bear any company seal, besides hanging on nothing as no official records have been adduced to demonstrate that the Plaintiff exists, that that the people executing it are its directors.
10. It was submitted further that no identification documents of the alleged authorized officer have been adduced. We contend that the above defect can’t be cured by making reference to Article 159 of the Constitution of Kenya 2010 as a mere technicality. Reliance was placed onto to the case of “Jurist Enterprises Limited – Versus - Tabete Company Limited & another (Civil Appeal E070 of 2025) [2025] KEHC 12682 (KLR)”, where it was held that; When the law sets out such a mandatory obligation, non-compliance affects the very foundation and validity of the proceedings, rather than being a matter of mere form. Such defects go to the root of the case and cannot be remedied by reliance on Article 159(2)(d) of the Constitution. Statutory requirements are substantive and could not be dismissed as mere procedural technicalities.
11. The Learned Counsel submitted that the 1st & 2nd Defendants had demonstrated that they hold a valid title by virtue of being absolute and indefeasible owners, bona fide purchasers for value without notice, and currently in possession, actual occupation and peaceful enjoyment of the suit property. Therefore, that granting orders sought would subject them to irreparable injury incapable of being compensation by way of damages by a Plaintiff whose legitimacy, legal identity & details of beneficial ownership as well as identity details of her purported representative in this proceedings remains unknown.
12. It was also submitted that the Plaintiff, was at all, had not had physical possession of the suit property at any one time. That the Plaintiff had only presented before court allegations without sufficient evidence to prove that, it had the capacity to institute these proceedings, it was a purchaser of the suit property for value without notice (it ever executed a sale agreement nor paid consideration for the suit property), has ever been in possession of the suit property at any given time since the year 1995 when it allegedly purchased it, there exist any search records issued by the 3rd Defendant showing it as the registered owner. Therefore, the Plaintiff had not met the threshold for grant of injunctive orders as was stated in the case of “Giella - Versus - Cassman Brown (Supra)”.
13. Lastly, the Counsel submitted that Courts had held that the threshold of grant of injunctive orders was rather conjunctive & not disjunctive, all aspects was to be satisfied. In the event that one aspect of the principles for grant of injunction has not been met then the court has no business further interrogating the rest. The court was referred to two authorities being the decision in “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others, CA No. 77 of 2012 and Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86”. The court was urged to dismiss the Plaintiff’s application with costs.
VII. Analysis and Determination
14. I have carefully read and considered all the pleadings herein being the application dated 19th July 2025, the replying affidavit by the 1st and 2nd Defendants/Respondents herein, the written submissions, the authorities cited to bolster, the relevant and appropriate provisions of the Constitution of Kenya, 2010 and the statutes.
15. In order to arrive at an informed, fair, just and reasonable decision, the Honourable Court has framed three (3) issues for determination. These are: -
a) Whether the Notice of Motion application dated 19th July 2025 by the Plaintiff/Applicant has met the threshold for granting of temporary injunctive orders sought.
b) Whether the parties are entitled to the reliefs sought.
c) Who bears the costs of the application dated 19th July 2025?
ISSUE No. a). Whether the Notice of Motion application dated 19th July 2025 by the Plaintiff/Applicant has met the threshold for granting of temporary injunctive orders sought.
16. Under this Sub – heading, the Honourable Court will examine whether the Applicant was entitled to be granted the injunctive orders. The law regarding grant of interlocutory injunctions is found in the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010 which provide as follows:
“Where in any suit it is proved by affidavit 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;
(b)That the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff 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 order.”
17. Further, the principles upon which an interlocutory injunction may be granted are well settled in the now famous “Giella – Versus - Cassman Brown” (Supra) case as follows:
a. prima facie with a probability of success,
b. the applicant might otherwise might otherwise suffer irreparable injury, which would not be adequately compensated by an award of damages, and
c. if the court is in doubt on the existence or otherwise of a prima facie case, it will decide the application on the balance of convenience.
18. The above are the three pillars on which rests the foundation of any order of injunction. 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. Limited – Versus - 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.
19. Has the Applicant established a prima facie case? In Mrao Limited – Versus - First American Bank of Kenya and 2 others, (2003) KLR 125” which was cited with approval in “Moses C. Muhia Njoroge & 2 others – Versus - Jane. W. Lesaloi & 5 Others (2014) eKLR”, the Court of Appeal defined a prima facie case as: -
“A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”.
20. It is the Applicant’s case that it is the registered owner of the suit property herein having acquired the same in the year 1995. The Applicant stated it has been in use of the property from the time the same was acquired to date. That it had however been brought to its attention that the property had been transferred to the 1st and 2nd Respondents herein by the 3rd Respondent and that the records at the lands registry were missing. The applicant maintained that the said transfer was without its knowledge and consent fraud was implied with regards to the said transfer.
21. However, the 1st and 2nd Defendants/Respondents in their case state that they purchased the suit property in the year 2019 from one Ali Magereni. That they have been in use and occupation of the said property since then having employed a caretaker to manage the property.
22. The court is alive to the fact that there are two competing titles to the suit property. The same are held by the applicant herein and the 1st and 2nd Respondent. At this point, the court cannot clearly tell which title is legit. The parties on their part have the responsibility of establishing the root of their titles as explained by the Court of Appeal in the case of “Munyu Maina – Versus - Hiram Gathiha Maina (2013) eKLR”. The court was explicit that;
“When a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free of any encumbrances including any and all interests which need not be noted on the register.”
23. The Court of Appeal in the case of “Mwangi James Njehia – Versus - Janetta Wanjiku Mwangi & Ano (2021) eKLR, observed this growing trend of manufactured titles and asserted the position that courts must protect genuine owners of land from fraudsters. The court stated that;
“……..in recent past and even presently, fraudsters have upped their game and we have come across several cases where Title Deeds manufactured in the backstreets have, with collusion of officers in the land registries, been transplanted at the lands office and intending buyers have been duped to believe that such documents are genuine and on that basis they have “purchased” properties which later turn out to belong to other people when the correct documents mysteriously reappear on the register or the genuine owner shows up after seeing strangers on their properties waving other instruments of title. It is the prevalence of these incidents that have necessitated the current overhaul and computerization of the registration systems at the land registry in Nairobi. The elephant in the room is whether genuine, legitimate owners of property should be dispossessed of their hard earned property.”
24. Be that as it may, in all fairness, equity and reasonability, intensive interrogation on the legality of the titles cannot be done at an interlocutory stage. Authenticating the title would mean that both parties are given an avenue to ventilate their case and present the relevant evidence to cement their respective claims on the suit property by proving the root of their respective titles.
25. With the above facts in consideration by this court, in order to preserve the suit property, I am of the view that the most relevant orders to issue at this particular point would be status quo orders. I will first outline what the term means by making reference to the Black’s Law Dictionary, Butter Worth’s 9th Edition, which defines Status Quo as a Latin word which means “the situation as it exists”.
26. The purpose of an order of status quo has been reiterated in a number of decisions: In the case of:- “Republic – Versus - National Environment Tribunal, Ex - Parte Palm Homes Limited & Another [2013] eKLR”, Odunga J. stated,
"When a court of law orders or a statute ordains that the status quo be maintained, it is expected that the circumstances as at the time when the order is made or the statute takes effect must be maintained. An order maintaining status quo is meant to preserve existing state of affairs...Status quo must therefore be interpreted with respect to existing factual scenario......"
27. In the case of:- TSS Spinning & Weaving; Company Ltd – Versus - Nic Bank Limited & another [2020] eKLR, the unpacked the purpose of a status quo order as follows:
“In essence therefore, a status quo order is meant to preserve the subject matter as it is/existed, as at the day of making the order. Status quo is about a court of law maintaining the situation or the subject matter of the dispute or the state of affairs as they existed before the mischief crept in, pending the determination of the issue in contention.’
28. Additionally, in the case of:- “Kenya Airline Pilots Association (KALPA) – Versus - Co-operative Bank of Kenya Limited & another [2020] eKLR, the purpose of a status quo order was explained as follows:
“……. By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.”
29. Having outlined the definition and purpose of a status quo order, the next question is the nature of the order and whether it differs from granting an injunctive order. This was aptly discussed in the case of “Thugi River Estate Limited & another – Versus - National Bank of Kenya Limited & 3 others [2015] eKLR”
“Firstly, an order of status quo will issue through a judicial process. Where the court in exercise of its general or statutory jurisdiction grants orders for maintenance in situ of a particular state or set of facts… the second or alternative order for status quo is the one issued by the court as a case management strategy. It is issued to provide assistance to the case. It also maintains a particular state of affairs or set of facts. Unlike a conservatory order or injunctive order, it is not descriptive. It is originated either by the court or by the consent of the parties. Often the court would not have been moved by either party. The court then expects an existing state of affairs or facts be preserved until a particular occurrence or until the courts’ further orders. It is intended to also freeze the state of affairs. State of affairs however do not always remain static, so it is always crucial for the court to be very specific and neat in its description of what state of affairs is to be preserved.”
30. In the case of “Msa Misc. Application (JR) No. 26 of 2010, The Chairman Business Premises Tribunal at Mombasa Exparte Baobab Beach Resort (Mbsa) Ltd (UR), the court held thus:
“In my view, an order for status quo to be maintained is different from an order of injunction both in terms of the principles for grant and the practical effect of each. While the latter is a substantive equitable remedy granted upon establishment of a right, or at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case. In its effect, an injunction may compel the doing or restrain the doing of a certain act, such as, respectively, the reinstatement of an evicted tenant or the eviction of the tenant in possession. An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint. In its negative form, however, an injunction may have the same effect as an order for status quo.”
31. From the above dictum in both “Mombasa JR No 26 of 2010 and the Thugi Case [Supra]” it is evident that status quo orders can be issued by the court in exercise of its mandate and need not be specifically prayed for. Also, the said orders are issued to preserve the subject matter in order to preserve the subject matter and to prevent prejudice on either party.
32. Thus, from the above analysis of case law, I discern that it has been demonstrated while it will be intelligible for this court to grant status quo orders at this juncture as opposed to the injunctive orders sought.
ISSUE No. c). Who bears the costs of the application dated 19th July 2025
33. On the issue of costs. Costs is at the discretion of Court. I am guided by the provisions of section 27 of the Civil Procedure Act and various decision including the case of “DGM – Versus - EWG [2021] eKLR”, where Kariuki Charles J, addressed the issue of costs in details making reference to a number of decided cases. He cited with approval the case of “Republic – Versus - Rosemary Wairimu Munene (Ex - Parte Applicant) – Versus - Ihururu Dairy Farmers Co-operative Society Ltd, Judicial Review Application No. 6 of 2004”, where Mativo J, (as he then was) held that the issue of costs is the discretion of the Court and is used to compensate the successful party for the trouble taken in prosecuting or defending the case and not to penalize the losing party.
34. Based on the circumstances of the instant application and the orders that have been ultimately issued, the court opines that it will be proper, fair and just that each party to bear its own costs.
VIII. Conclusion and Final Disposition
35. Consequently, based on the indepth analysis of the framed issues herein, the Honourable Court proceeds to specifically grant the following terms:-
a) THAT the Notice of Motion application dated 19th July 2025 by the Plaintiff/Applicant be and is hereby allowed in as far as the status quo to be maintained in order to preserve the property.
b) THAT there shall be no further activities on the suit property Kwale/Diani Complex/199. Any developments or farming of new crop that might be ongoing to forthwith cease.
c) THAT there shall be no transferring or charging of proprietary interest on the suit property Kwale/Diani Complex/199.
d) THAT the 3rd Respondent to be personally served with this order to ensure compliance with order [2] above.
e) THAT for expediency sake, there be a mention on 1st July, 2026 for purposes of conducting a Pre – Trail Conference in accordance with the provision of Order 11 of the Civil Procedure Rules, 2010. There shall be a hearing on 5th November, 2026 preferably through Physical means.
f) THAT each party to bear its own costs.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS
…………10TH ………. DAY OF ………..MARCH ………….2026
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) M/s. Mkabane Advocate for the Plaintiff.
c) Mr. Kulecho Advocate for the 1st & 2nd Defendants.
d) No appearance for the 3rd Defendant.