I. Introduction
1. The Honourable Court was called upon to make a determination of the Notice of Motion application dated 25 th February 2026 by KITUMBUA NJIRA TSANGO, MOHAMED KALOLWA BEKALOLWA and MWACHUPA DZIMBA BEKALOLWA, the 1 st , 2 nd & 3 rd Plaintiffs/Applicants herein. It was brought pursuant to the provisions of Section 13 (7) (a) of the Environment and Land Court Act, Rule 20 of the Environment and Land Court Practice Directions and Order 40 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
2. Upon service, the application was opposed through filing of a Replying Affidavit dated 14 th April, 2026 sworn by HUSSEIN KANENO the 3 rd Defendant/Respondent duly authorised to act on behalf of the 1 st and 2 nd Defendants/Respondents herein. The court will outline in detail the contents of the said affidavit later in the ruling.
II. The case by the 1 st , 2 nd & 3 rd Plaintiffs/Applicants
3. The Plaintiffs/Applicants sought for orders:-
a). Spent.
b). That pending the hearing and determination of the main suit, a temporary injunction do issue restraining the Defendants, their servants, agents, or any other persons claiming through them from:
i. Cutting down or felling any trees planted on the suit properties;
ii. Selling, burning, or otherwise exploiting timber or charcoal from the suit properties;
iii. Drilling boreholes or undertaking any other development on the suit properties; and
iv. alienating, transferring, occupying beyond what is lawful, or otherwise interfering with the suit properties.
4. The application was premised on the grounds, testimonial facts and the averments made out under the 18 Paragraphed supporting affidavit sworn by KITUMBUA NJIRA TSANGO on 25 th February, 2026 together with annextures marked as “BKN” annexed thereto. He averred as follows that:-
a) He was the 1 st Plaintiff/Applicant.
b) The 1 st , 2 nd , 3 rd & 4 th Defendants/Respondents were presently residing on and in occupation of the suit properties Kwale/Kirazini A/265, Kwale/Kirazini A/244 and Plot 115 (Hereinafter referred to as “The Suit Properties”).
c) Notwithstanding the pendency of this suit, the Defendants had over time and with increasing intensity engaged in acts on the suit property that went beyond ordinary use or occupation.
d) In particular, the Defendants had been cutting down mature trees standing on the suit properties and some of which have been in existence on the land for many years and formed part of the natural and economic character of the land.
e) The tree felling had been continuous and deliberate and resulted in a noticeable reduction of tree cover across the suit properties.
f) Further that the Defendants had been selling timber harvested from the suit properties to third parties who accessed the suit properties for purposes of collecting and transporting them.
g) The proceeds of this sales never accrued to the family of the late Betsango Mwaguta Chamoyo as the proprietors of the land but were instead appropriated by the Defendants for their own benefit.
h) In addition to the timber harvesting the Defendants were also engaged in charcoal burning, excavation of the soil activities carried out and which actions had degraded and altered the physical condition of the land in a manner that could not be reversed easily.
i) The charcoal burning were carried out openly and repeatedly.
j) The Defendants had further sunk boreholes on the suit properties without the authority of the Plaintiffs/Applicants and that the actions raised all amount to progressive exploitation and depletion of the suit properties.
k) The concerns had been raised by the Plaintiffs/Applicants and their families to the Defendants/Respondents but it had been disregarded.
l) Therefore, the Plaintiffs/ Applicants were apprehensive that unless the orders sought were granted before the suit was heard and determined, the suit properties may by then be stripped off its trees and the environmental degradation may lead to irreversible changes and may defeat the purpose of the proceedings.
m) It was in the interest of justice, fairness and fairness that the application was allowed and prayers sought were granted.
III. The responses by the 1 st , 2 nd , 3 rd & 4 th Defendants/Respondents
5. In opposing the application, the 1 st , 2 nd , 3 rd & 4 th Defendants/Respondents filed a 21 Paragraphed Replying Affidavit sworn by HUSSEIN KANENO, the 3 rd Defendant/Respondent herein. He averred as follows that:-
a) He was the 3 rd Defendants/Respondents herein acting on behalf of 1 st and 2 nd Defendants/Respondents and hence competent to swear this affidavit herein.
b) The Plaintiff/Applicants and the Defendants/Respondents herein were neighbours. Both their families had lived and continued to live as such since the year 1940s and long before the adjudication process as their properties were adjacent to one another.
c) Both families had been living and carrying on farming activities on Kwale/Kirazini 'A'/265, Kwale/Kirazini 'A'/244 and Plot No.115 ever since sometime in the year 1978 and that the deponents family members and the residents of Mwaluphamba location were informed by the local administration that land adjudication would be conducted in respect of the suit properties in the Mwaluphamba area and that all the residents would be required to participate by attending the meetings scheduled to give their views and/or appoint someone to represent them in the process.
d) He was aware that the Land Adjudication Committee comprised of the residents Mwaluphamba location, including the Plaintiffs/Applicants late father and the deponent’s father.
e) It was through the land adjudication process which was conducted justly and legally that his family members were allotted title number Kwale/Kirazini 'A'/265, Kwale/Kirazini 'A'/244 and Plot No.115. That Kwale/Kirazini 'A'/265 was registered in his late father's name while Kwale/Kirazini 'A'/244 was then registered in the names of the 1 st Defendant/Respondent, Mbwana Jumaa Mwachangoma and Plot No.115 was registered in the names of Kideri Kuvyoda, Mwamvumbo Mbwana Chagoma, Mshengo Kuvyoda, Mohamed Abdalla and Ali Mwasaria.
f) It was not true that the Defendants/Respondents had been cutting down trees, selling and burning charcoal, drilling boreholes and alienating and transferring land.
g) As registered proprietors they were entitled to not only enjoy uninterrupted occupation, possession and utilization of the suit properties but also to draw economic advantage and social benefit therefrom as guaranteed under the provision of Article 40 of the Constitution of Kenya, 2010.
h) The Defendants/Respondents families right to utilize the suit properties registered in their names howsoever they deem fit should not be hindered, curtailed and infringed upon by the Plaintiffs/Applicants who were neither beneficial nor registered proprietors of the suit properties while the Plaintiffs/Applicants herein continued to enjoy the large tracks of land allotted to them during the adjudication period.
i) Therefore, it was not true that the Plaintiffs/Applicants herein and the other parties stood to suffer irreparable damage caused by their utilization of land registered to their families as they had never been the registered owners nor had they ever been in occupation or been able to prove any beneficial ownership to suit properties.
j) Restricting the Defendants/Respondents use of and ability to earn a living from the suit properties pending the determination of the main suit was not only detrimental, gravely prejudicial to their economic survival but also undermined their rights as the legal registered proprietors.
k) The order (b) of the application if granted bore an infinite detrimental effect on the Defendants/Respondents’ families since they did not know how long the main suit would take to be determined.
l) In that period they would not earn a living therefrom yet they needed to do so while the Plaintiffs/Applicants continue to enjoy and utilize their vast portion of properties by deriving economic advantage at the Defendants/Respondents’ expense.
m) The alleged damage or loss complained of by the Plaintiffs/Applicants [which was denied] was capable of being quantified and payable upon the final determination of the main suit and there was therefore no justification to deny the Defendants/Respondents the opportunity to uninterruptedly utilize and peacefully enjoy their properties which they had for over a period of 40 years taken good care of by planting sufficient trees and farming on.
n) The deponent also stated that he was aware that prior to and after the Plaintiffs/Applicants filed this application, his family members had on various instances reported to the police station complaints that the Applicants trespassed, cut down our cultivated produce and engaged in exploitative activities including felling trees on our suit properties and were issued with OB No’s 8/27/7/2018, 15/20/12/2018, 25/27/4/2019, 11/17/06/2020, 09/27/08/2020 and most recently 06/10/03/2026 obtained from the Burani Police Station and Kenya Forest Service Tree assessment report)
o) Moreover, sometime in the year 2019, the Plaintiffs/Applicants' family members, Bakari Mwaguta and Hussein Kitende were charged in Criminal Case No.76 of 2019 at Kwale Law Courts with the offence of setting fire to grass, shrubs and trees on one of the suit properties, contrary to Section 334 [c] of the Penal Code.
p) Lastly, it was stated that electronic photographic evidence produced at Paragraph 4 of the Supporting Affidavit never complied with the requirements of Section 78A of the Evidence Act, Cap. 80 which required that a Certificate of electronic evidence be produced. In the absence of such certificate, the alleged electronic photographic evidence is inadmissible before this court.
q) The court was urged to dismiss the application for lacking in merit.
IV. Submissions
6. On 22 nd April 2026, in the presence of counsels for both parties herein, the Honourable Curt directed that the application be dealt with by way of written submissions.
7. Pursuant to that, both parties complied with the said directions. The Court reserved 14 th July, 2026 as the date to render its Ruling.
8. A summary of the submissions is as here below.
A. The Written Submissions by the 1 st , 2 nd , 3 rd & 4 th Plaintiffs/Applicants.
9. The Law firm of Messrs. Lumatete Muchai & Company Advocates filed submissions dated 12 th June 2026 for the Applicants. M/s. Ziwa Advocate provide a brief historical background of the suit as captured in the pleadings before discussing the issues arising. On whether they had made a prima facie case, the Plaintiffs/Applicants submitted that they had placed before court evidence demonstrating that they were the administrators of the estate of the late Betsango Mwaguta Chamoyo and that they lay claim to the suit properties as ancestral land belonging to the said estate. That the ownership and occupation of the suit properties was presently the subject of this suit and therefore constituted a serious and bonafide dispute deserving judicial determination.
10. On the other hand, the Defendants/Respondents had not only taken occupation of the suit property but they had also engaged in activities that led to the degradation of the suit property and hence a prima facie case had been established.
11. On irreparable injury. The Counsel submitted that the injury that the Plaintiffs/Applicants sought to prevent was not one that could be adequately compensated by an award of damages. The Counsel argued that the Defendants/Respondents were not merely occupying the suit properties; they were actively stripping them of natural resources that had formed part of the land for generations. What was being lost was not simply timber, but a natural heritage that could not be recreated by a monetary award. It was stated that once cut down and converted into timber or charcoal, no amount of money could restore them to the state in which they presently exist. Even if replacement were possible, it would take several decades before any newly planted trees could replicate the ecological, environmental and aesthetic value of what had now been destroyed. That unless the orders sought were granted, the natural heritage of the suit property would be destroyed and hence the aspect of irreparable injury being proved.
12. Lastly, the Learned Counsel submitted that the orders sought never sought to dispossess the Defendants/Respondents of the land nor determine the issue of ownership at this interlocutory stage. They merely sought to restrain further acts of destruction, depletion and exploitation of the natural resources found on the suit properties until the rights of the parties were conclusively determined. Thus, the balance of convenience tilted towards allowing the application.
B. The Written Submissions by the Defendants/Respondents.
13. The Law firm of Messrs. Wanjiku Mohammed Advocates LLP filed submissions dated 2 nd July, 2026 on behalf of the Respondents. Mr. Kings Advocate identified the following issues determination:-
a. Whether the Applicants have established a prima facie case with a probability of success.
b. Whether the photographic evidence annexed as "BKN 1" was admissible before this Honourable Court.
c. Whether the Applicants had demonstrated irreparable injury incapable of compensation in damages.
d. Where the balance of convenience lied.
e. Whether the Applicants made full and frank disclosure of all material facts in obtaining the ex parte orders of 2 nd March, 2026.
f. Who should bear the costs of the Application
14. On whether a prima facie case had been established by the Plaintiffs/Applicants. The Learned Counsel submitted that despite the allegations that they were the owners of the suit property, the Applicants had not annexed any evidence to back up this claim. That pursuant to the provision of Sections 107 and 109 of the Evidence Act, Cap. 80 he who alleges must prove, and that the burden of proving any particular fact lies on the person who wishes the court to believe in its existence. The Applicants had not discharged this burden.
15. Accordingly, the Application failed at the very first hurdle set out in the case of:- “ Giella – Versus - Cassman Brown & Co Ltd” (Supra) and reaffirmed in the case of:- “ Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [2014] eKLR” , and ought, on this ground alone, to be dismissed. The Defendants/Respondents submitted that on the other hand they had annexed title deeds to the suit property in evidence of the fact that they were the registered proprietor to the properties with liberty to use it and ought to be protected pursuant to the provisions of Section 26 of the Land Registration Act.
16. The Learned Counsel submitted that the photographs annexed to the application by the Plaintiffs/Applicants ought not to be admitted as evidence for grant of the orders sought as they were inadmissible. The provision of Section 106B of the Evidence Act, Cap. 80 required that electronic and digital evidence, including photographic evidence generated, stored or transmitted electronically, be accompanied by a Certificate authenticating the manner of its generation and preservation before it can be admitted in evidence. To support this legal position, reference was made to the Court of Appeal in the case of:- “ County Assembly of Kisumu & 2 others – Versus - Kisumu County Assembly Service Board & 6 others [2015] KEСА 397 [КLR]” underscored the mandatory nature of this certification requirement, holding that electronic evidence presented without the requisite certificate was inadmissible.
17. Whether the Applicants had demonstrated irreparable injury incapable of compensation in damages. The Learned Counsel averred that the injury the Plaintiffs/Applicants complain of, the value of standing the alleged trees felled, timber sold and charcoal burnt were the very paradigm of injury capable of precise pecuniary quantification. The volume and species of trees on any given parcel, the market value of timber, and the prevailing rate for charcoal were all matters readily ascertainable through expert valuation. That was where loss was reducible to a monetary figure ascertainable by ordinary valuation evidence, it could not, by definition, be irreparable.
18. It was submitted that the balance of convenience if properly weighed titled towards the Defendants/Respondents. That the orders sought ought not to obtain as it would bar the Defendants/Respondents from using land that legally belonged to them and they were in lawful use of it was as a means of livelihood.
19. Finally, it was asserted that the Plaintiffs/Applicants had failed to make a full disclosure to the courts before grant of the orders made on 2 nd March, 2026. They failed to disclose the fact that the suit property was in the name of the Defendants/Respondents and further that they had on several occasions made reports over the Plaintiffs/Applicants invasion of the suit property. The Defendants/Respondents urged the Court to have the application to be dismissed with costs.
V. Analysis and Determination
20. I have carefully read and considered the pleadings herein, the written submissions and the myriad of authorities by cited the Learned Counsels, the relevant provisions by the Constitution of Kenya, 2010 and the statutes.
21. In order to arrive at an informed, fair and reasonable decision, the Honorable Court has framed three ( 3 ) the following issues for determination:-
a) Whether the Notice of Motion application dated 25 th February, 2026 meets threshold required of a temporary injunction under Order 40 Rules 1 of the Civil Procedures Rules, 2010.
b) Whether the parties are entitled to the reliefs sought
c) Who will bear the costs of Notice of Motion application 25 th February, 2026
ISSUE No a.) Whether the Notice of Motion application dated 25 th February, 2026 meets threshold required of a temporary injunction under Order 40 Rules 1 of the Civil Procedures Rules, 2010.
22. Under this Sub – heading, the Honourable Court shall be assessing whether the interlocutory interim injunctive orders should be granted or not as sought by the Applicants herein. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law. Which provides as follows: -
Order 40, Rule 1
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; or
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 orders.
23. Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of “ Giella – Versus - Cassman Brown & Co Limited (Supra)” , where it was stated: -
“First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”
24. The three conditions set out in “ Giella (supra)” , need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR” : -,
“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or 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. 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. 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. 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”.
25. In dealing with the first condition of prima facie case, the Honorable Court guided by the definition melted down in the famous case “ MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125” of: - ,
“So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”
ISSUE No b). Whether the parties are entitled to the reliefs sought
26. Under this Sub – heading, while applying the above legal principles well set out, the Honourable Court will be examining whether the Notice of Motion application dated 25 th February, 2026 has any merit or not. The Plaintiffs/Applicants allege that the Defendants/Respondents invaded the suit property and are carrying out several environment degrading activities including the cutting of trees and burning charcoal without any legal basis on ownership. That the Defendants/Respondents have on several occasions been asked to stop the activities on the suit property and reports have further been made to the police but the activities have to date not ceased. On the other hand, the Defendants/Respondents produced before court copies of title deeds to the suit property in proof of ownership of the properties. Additionally, the Defendants/Respondents also attached several Occurrence Book (OB) reports on complaints officially lodged at the Burani Police Station with regard to the interference allegedly perpetrated by the Plaintiffs/Applicants onto the suit property. Clearly, these are issues that need to be intensively interrogated by Court during the full trial based on the principles of natural justice.
27. In saying so, I have sought refuge from the decision of:- “Mbuthia – Versus - Jimba credit Corporation Limited 988 KLR 1” , the court held that:-
“In an application for interlocutory injunctions, the Court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.”
28. Similarly, in the case of “Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Ltd” the court held that:-
“In an interlocutory application to determine the very issues which will be canvassed at the trial with finality. All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.”
29. Furthermore, I have carefully interrogated the evidence tendered by the Plaintiffs/Applicants in support of the application. It is trite that he who alleges must proof see the supreme court holding in “ Gatirau Peter Munya – Versus - Dickson Mwenda Kithinji & 3 Others (2014) eKLR”. The Plaintiffs/Applicants allege to be the owners of the properties. Legally speaking, the provision of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012 provide that claims on ownership of land has to be demonstrated through empirical evidence. For instance Certificate of Title, official search etc as conclusive evidence needs to be shown or produced. However, though still at an interlocutory stage, none of these evidence has been tendered in support of their claim. On the contrary, the Defendants/Respondents have at least provided the Court with some brief history of the suit property and attached a few documents cementing their ownership over the properties and which include copies of title deeds. Therefore, in my humble view, I am left to discern that what has been presented before court might be mere allegations without sufficient evidence to back the claim for the time being in force.
30. Therefore, the court is not satisfied that the Applicants have established “a prima facie case” so as to warrant the granting of the orders of injunction. The Plaintiffs/Applicants have not demonstrated what they are bound to loose in the event that the orders sought are not granted and most importantly, how the land belongs to them, the whole aspect of challenging the titles is clearly obscure from the instant pleadings. I am guided by the decision of Ringera J. [as he was then was] in the case of: “ Showind Industries – Versus - Guardian Bank Limited & Another (2002) 1 EA 284” where the Learned Judge stated as follows: -
“…an injunction is granted very sparingly and only in exceptional circumstances such as where the Applicant’s case is very strong and straight forward. Moreover, as the remedy is an equitable one, it may be denied where the Applicant’s conduct does not meet the approval of Court of equity or his equity has been defeated by laches”
31. Nonetheless, and in all fairness, this being a Court of Justice, Equity and Conscience and guided by the provision of Articles 25 ( c ), 50 ( 1 ) & ( 2 ) and 159 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010 on fair hearing, it will still extend to the Applicants an olive branch and accord them a Second bite of the Cherry to enable them put their arts together during the full trial.
32. As was earlier observed, the threshold for grant of injunctive orders are rather conjunctive and not disjunctive, all aspects are to be satisfied. Legally speaking, 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. I am guided by the decision in “ Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others, CA NO. 77 OF 2012”, where the Court expressed itself on the importance of satisfying all the three requirements for an order of injunction as follows: -
“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 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 – Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the A pplicant 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. 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.”
33. Based on the above legal preposition, the Honourable Court finds no basis to consider the other two limbs for granting the interlocutory injunction and hence it stops there.
34. Being a court of record, it is significant to address the issue of admissibility of the evidence made through electronic devices relied upon by the Plaintiffs/Applicants. This was an issue critically raised by the Defendant/Respondents who maintained that there was no Certificate of Production accompanying the photographs. The admissibility of electronic records is provided for under the provision of Section 106B of the Evidence Act , Cap. 80 of Laws of Kenya in the following terms:
“106B(1)Notwithstanding, anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as a computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any
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1. The Honourable Court was called upon to make a determination of the Notice of Motion application dated 25 th February 2026 by KITUMBUA NJIRA TSANGO, MOHAMED KALOLWA BEKALOLWA and MWACHUPA DZIMBA BEKALOLWA, the 1 st , 2 nd & 3 rd Plaintiffs/Applicants herein. It was brought pursuant to the provisions of Section 13 (7) (a) of the Environment and Land Court Act, Rule 20 of the Environment and Land Court Practice Directions and Order 40 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
2. Upon service, the application was opposed through filing of a Replying Affidavit dated 14 th April, 2026 sworn by HUSSEIN KANENO the 3 rd Defendant/Respondent duly authorised to act on behalf of the 1 st and 2 nd Defendants/Respondents herein. The court will outline in detail the contents of the said affidavit later in the ruling.
II. The case by the 1 st , 2 nd & 3 rd Plaintiffs/Applicants
3. The Plaintiffs/Applicants sought for orders:-
a). Spent.
b). That pending the hearing and determination of the main suit, a temporary injunction do issue restraining the Defendants, their servants, agents, or any other persons claiming through them from:
i. Cutting down or felling any trees planted on the suit properties;
ii. Selling, burning, or otherwise exploiting timber or charcoal from the suit properties;
iii. Drilling boreholes or undertaking any other development on the suit properties; and
iv. alienating, transferring, occupying beyond what is lawful, or otherwise interfering with the suit properties.
4. The application was premised on the grounds, testimonial facts and the averments made out under the 18 Paragraphed supporting affidavit sworn by KITUMBUA NJIRA TSANGO on 25 th February, 2026 together with annextures marked as “BKN” annexed thereto. He averred as follows that:-
a) He was the 1 st Plaintiff/Applicant.
b) The 1 st , 2 nd , 3 rd & 4 th Defendants/Respondents were presently residing on and in occupation of the suit properties Kwale/Kirazini A/265, Kwale/Kirazini A/244 and Plot 115 (Hereinafter referred to as “The Suit Properties”).
c) Notwithstanding the pendency of this suit, the Defendants had over time and with increasing intensity engaged in acts on the suit property that went beyond ordinary use or occupation.
d) In particular, the Defendants had been cutting down mature trees standing on the suit properties and some of which have been in existence on the land for many years and formed part of the natural and economic character of the land.
e) The tree felling had been continuous and deliberate and resulted in a noticeable reduction of tree cover across the suit properties.
f) Further that the Defendants had been selling timber harvested from the suit properties to third parties who accessed the suit properties for purposes of collecting and transporting them.
g) The proceeds of this sales never accrued to the family of the late Betsango Mwaguta Chamoyo as the proprietors of the land but were instead appropriated by the Defendants for their own benefit.
h) In addition to the timber harvesting the Defendants were also engaged in charcoal burning, excavation of the soil activities carried out and which actions had degraded and altered the physical condition of the land in a manner that could not be reversed easily.
i) The charcoal burning were carried out openly and repeatedly.
j) The Defendants had further sunk boreholes on the suit properties without the authority of the Plaintiffs/Applicants and that the actions raised all amount to progressive exploitation and depletion of the suit properties.
k) The concerns had been raised by the Plaintiffs/Applicants and their families to the Defendants/Respondents but it had been disregarded.
l) Therefore, the Plaintiffs/ Applicants were apprehensive that unless the orders sought were granted before the suit was heard and determined, the suit properties may by then be stripped off its trees and the environmental degradation may lead to irreversible changes and may defeat the purpose of the proceedings.
m) It was in the interest of justice, fairness and fairness that the application was allowed and prayers sought were granted.
III. The responses by the 1 st , 2 nd , 3 rd & 4 th Defendants/Respondents
5. In opposing the application, the 1 st , 2 nd , 3 rd & 4 th Defendants/Respondents filed a 21 Paragraphed Replying Affidavit sworn by HUSSEIN KANENO, the 3 rd Defendant/Respondent herein. He averred as follows that:-
a) He was the 3 rd Defendants/Respondents herein acting on behalf of 1 st and 2 nd Defendants/Respondents and hence competent to swear this affidavit herein.
b) The Plaintiff/Applicants and the Defendants/Respondents herein were neighbours. Both their families had lived and continued to live as such since the year 1940s and long before the adjudication process as their properties were adjacent to one another.
c) Both families had been living and carrying on farming activities on Kwale/Kirazini 'A'/265, Kwale/Kirazini 'A'/244 and Plot No.115 ever since sometime in the year 1978 and that the deponents family members and the residents of Mwaluphamba location were informed by the local administration that land adjudication would be conducted in respect of the suit properties in the Mwaluphamba area and that all the residents would be required to participate by attending the meetings scheduled to give their views and/or appoint someone to represent them in the process.
d) He was aware that the Land Adjudication Committee comprised of the residents Mwaluphamba location, including the Plaintiffs/Applicants late father and the deponent’s father.
e) It was through the land adjudication process which was conducted justly and legally that his family members were allotted title number Kwale/Kirazini 'A'/265, Kwale/Kirazini 'A'/244 and Plot No.115. That Kwale/Kirazini 'A'/265 was registered in his late father's name while Kwale/Kirazini 'A'/244 was then registered in the names of the 1 st Defendant/Respondent, Mbwana Jumaa Mwachangoma and Plot No.115 was registered in the names of Kideri Kuvyoda, Mwamvumbo Mbwana Chagoma, Mshengo Kuvyoda, Mohamed Abdalla and Ali Mwasaria.
f) It was not true that the Defendants/Respondents had been cutting down trees, selling and burning charcoal, drilling boreholes and alienating and transferring land.
g) As registered proprietors they were entitled to not only enjoy uninterrupted occupation, possession and utilization of the suit properties but also to draw economic advantage and social benefit therefrom as guaranteed under the provision of Article 40 of the Constitution of Kenya, 2010.
h) The Defendants/Respondents families right to utilize the suit properties registered in their names howsoever they deem fit should not be hindered, curtailed and infringed upon by the Plaintiffs/Applicants who were neither beneficial nor registered proprietors of the suit properties while the Plaintiffs/Applicants herein continued to enjoy the large tracks of land allotted to them during the adjudication period.
i) Therefore, it was not true that the Plaintiffs/Applicants herein and the other parties stood to suffer irreparable damage caused by their utilization of land registered to their families as they had never been the registered owners nor had they ever been in occupation or been able to prove any beneficial ownership to suit properties.
j) Restricting the Defendants/Respondents use of and ability to earn a living from the suit properties pending the determination of the main suit was not only detrimental, gravely prejudicial to their economic survival but also undermined their rights as the legal registered proprietors.
k) The order (b) of the application if granted bore an infinite detrimental effect on the Defendants/Respondents’ families since they did not know how long the main suit would take to be determined.
l) In that period they would not earn a living therefrom yet they needed to do so while the Plaintiffs/Applicants continue to enjoy and utilize their vast portion of properties by deriving economic advantage at the Defendants/Respondents’ expense.
m) The alleged damage or loss complained of by the Plaintiffs/Applicants [which was denied] was capable of being quantified and payable upon the final determination of the main suit and there was therefore no justification to deny the Defendants/Respondents the opportunity to uninterruptedly utilize and peacefully enjoy their properties which they had for over a period of 40 years taken good care of by planting sufficient trees and farming on.
n) The deponent also stated that he was aware that prior to and after the Plaintiffs/Applicants filed this application, his family members had on various instances reported to the police station complaints that the Applicants trespassed, cut down our cultivated produce and engaged in exploitative activities including felling trees on our suit properties and were issued with OB No’s 8/27/7/2018, 15/20/12/2018, 25/27/4/2019, 11/17/06/2020, 09/27/08/2020 and most recently 06/10/03/2026 obtained from the Burani Police Station and Kenya Forest Service Tree assessment report)
o) Moreover, sometime in the year 2019, the Plaintiffs/Applicants' family members, Bakari Mwaguta and Hussein Kitende were charged in Criminal Case No.76 of 2019 at Kwale Law Courts with the offence of setting fire to grass, shrubs and trees on one of the suit properties, contrary to Section 334 [c] of the Penal Code.
p) Lastly, it was stated that electronic photographic evidence produced at Paragraph 4 of the Supporting Affidavit never complied with the requirements of Section 78A of the Evidence Act, Cap. 80 which required that a Certificate of electronic evidence be produced. In the absence of such certificate, the alleged electronic photographic evidence is inadmissible before this court.
q) The court was urged to dismiss the application for lacking in merit.
IV. Submissions
6. On 22 nd April 2026, in the presence of counsels for both parties herein, the Honourable Curt directed that the application be dealt with by way of written submissions.
7. Pursuant to that, both parties complied with the said directions. The Court reserved 14 th July, 2026 as the date to render its Ruling.
8. A summary of the submissions is as here below.
A. The Written Submissions by the 1 st , 2 nd , 3 rd & 4 th Plaintiffs/Applicants.
9. The Law firm of Messrs. Lumatete Muchai & Company Advocates filed submissions dated 12 th June 2026 for the Applicants. M/s. Ziwa Advocate provide a brief historical background of the suit as captured in the pleadings before discussing the issues arising. On whether they had made a prima facie case, the Plaintiffs/Applicants submitted that they had placed before court evidence demonstrating that they were the administrators of the estate of the late Betsango Mwaguta Chamoyo and that they lay claim to the suit properties as ancestral land belonging to the said estate. That the ownership and occupation of the suit properties was presently the subject of this suit and therefore constituted a serious and bonafide dispute deserving judicial determination.
10. On the other hand, the Defendants/Respondents had not only taken occupation of the suit property but they had also engaged in activities that led to the degradation of the suit property and hence a prima facie case had been established.
11. On irreparable injury. The Counsel submitted that the injury that the Plaintiffs/Applicants sought to prevent was not one that could be adequately compensated by an award of damages. The Counsel argued that the Defendants/Respondents were not merely occupying the suit properties; they were actively stripping them of natural resources that had formed part of the land for generations. What was being lost was not simply timber, but a natural heritage that could not be recreated by a monetary award. It was stated that once cut down and converted into timber or charcoal, no amount of money could restore them to the state in which they presently exist. Even if replacement were possible, it would take several decades before any newly planted trees could replicate the ecological, environmental and aesthetic value of what had now been destroyed. That unless the orders sought were granted, the natural heritage of the suit property would be destroyed and hence the aspect of irreparable injury being proved.
12. Lastly, the Learned Counsel submitted that the orders sought never sought to dispossess the Defendants/Respondents of the land nor determine the issue of ownership at this interlocutory stage. They merely sought to restrain further acts of destruction, depletion and exploitation of the natural resources found on the suit properties until the rights of the parties were conclusively determined. Thus, the balance of convenience tilted towards allowing the application.
B. The Written Submissions by the Defendants/Respondents.
13. The Law firm of Messrs. Wanjiku Mohammed Advocates LLP filed submissions dated 2 nd July, 2026 on behalf of the Respondents. Mr. Kings Advocate identified the following issues determination:-
a. Whether the Applicants have established a prima facie case with a probability of success.
b. Whether the photographic evidence annexed as "BKN 1" was admissible before this Honourable Court.
c. Whether the Applicants had demonstrated irreparable injury incapable of compensation in damages.
d. Where the balance of convenience lied.
e. Whether the Applicants made full and frank disclosure of all material facts in obtaining the ex parte orders of 2 nd March, 2026.
f. Who should bear the costs of the Application
14. On whether a prima facie case had been established by the Plaintiffs/Applicants. The Learned Counsel submitted that despite the allegations that they were the owners of the suit property, the Applicants had not annexed any evidence to back up this claim. That pursuant to the provision of Sections 107 and 109 of the Evidence Act, Cap. 80 he who alleges must prove, and that the burden of proving any particular fact lies on the person who wishes the court to believe in its existence. The Applicants had not discharged this burden.
15. Accordingly, the Application failed at the very first hurdle set out in the case of:- “ Giella – Versus - Cassman Brown & Co Ltd” (Supra) and reaffirmed in the case of:- “ Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [2014] eKLR” , and ought, on this ground alone, to be dismissed. The Defendants/Respondents submitted that on the other hand they had annexed title deeds to the suit property in evidence of the fact that they were the registered proprietor to the properties with liberty to use it and ought to be protected pursuant to the provisions of Section 26 of the Land Registration Act.
16. The Learned Counsel submitted that the photographs annexed to the application by the Plaintiffs/Applicants ought not to be admitted as evidence for grant of the orders sought as they were inadmissible. The provision of Section 106B of the Evidence Act, Cap. 80 required that electronic and digital evidence, including photographic evidence generated, stored or transmitted electronically, be accompanied by a Certificate authenticating the manner of its generation and preservation before it can be admitted in evidence. To support this legal position, reference was made to the Court of Appeal in the case of:- “ County Assembly of Kisumu & 2 others – Versus - Kisumu County Assembly Service Board & 6 others [2015] KEСА 397 [КLR]” underscored the mandatory nature of this certification requirement, holding that electronic evidence presented without the requisite certificate was inadmissible.
17. Whether the Applicants had demonstrated irreparable injury incapable of compensation in damages. The Learned Counsel averred that the injury the Plaintiffs/Applicants complain of, the value of standing the alleged trees felled, timber sold and charcoal burnt were the very paradigm of injury capable of precise pecuniary quantification. The volume and species of trees on any given parcel, the market value of timber, and the prevailing rate for charcoal were all matters readily ascertainable through expert valuation. That was where loss was reducible to a monetary figure ascertainable by ordinary valuation evidence, it could not, by definition, be irreparable.
18. It was submitted that the balance of convenience if properly weighed titled towards the Defendants/Respondents. That the orders sought ought not to obtain as it would bar the Defendants/Respondents from using land that legally belonged to them and they were in lawful use of it was as a means of livelihood.
19. Finally, it was asserted that the Plaintiffs/Applicants had failed to make a full disclosure to the courts before grant of the orders made on 2 nd March, 2026. They failed to disclose the fact that the suit property was in the name of the Defendants/Respondents and further that they had on several occasions made reports over the Plaintiffs/Applicants invasion of the suit property. The Defendants/Respondents urged the Court to have the application to be dismissed with costs.
V. Analysis and Determination
20. I have carefully read and considered the pleadings herein, the written submissions and the myriad of authorities by cited the Learned Counsels, the relevant provisions by the Constitution of Kenya, 2010 and the statutes.
21. In order to arrive at an informed, fair and reasonable decision, the Honorable Court has framed three ( 3 ) the following issues for determination:-
a) Whether the Notice of Motion application dated 25 th February, 2026 meets threshold required of a temporary injunction under Order 40 Rules 1 of the Civil Procedures Rules, 2010.
b) Whether the parties are entitled to the reliefs sought
c) Who will bear the costs of Notice of Motion application 25 th February, 2026
ISSUE No a.) Whether the Notice of Motion application dated 25 th February, 2026 meets threshold required of a temporary injunction under Order 40 Rules 1 of the Civil Procedures Rules, 2010.
22. Under this Sub – heading, the Honourable Court shall be assessing whether the interlocutory interim injunctive orders should be granted or not as sought by the Applicants herein. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law. Which provides as follows: -
Order 40, Rule 1
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; or
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 orders.
23. Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of “ Giella – Versus - Cassman Brown & Co Limited (Supra)” , where it was stated: -
“First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”
24. The three conditions set out in “ Giella (supra)” , need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR” : -,
“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or 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. 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. 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. 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”.
25. In dealing with the first condition of prima facie case, the Honorable Court guided by the definition melted down in the famous case “ MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125” of: - ,
“So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”
ISSUE No b). Whether the parties are entitled to the reliefs sought
26. Under this Sub – heading, while applying the above legal principles well set out, the Honourable Court will be examining whether the Notice of Motion application dated 25 th February, 2026 has any merit or not. The Plaintiffs/Applicants allege that the Defendants/Respondents invaded the suit property and are carrying out several environment degrading activities including the cutting of trees and burning charcoal without any legal basis on ownership. That the Defendants/Respondents have on several occasions been asked to stop the activities on the suit property and reports have further been made to the police but the activities have to date not ceased. On the other hand, the Defendants/Respondents produced before court copies of title deeds to the suit property in proof of ownership of the properties. Additionally, the Defendants/Respondents also attached several Occurrence Book (OB) reports on complaints officially lodged at the Burani Police Station with regard to the interference allegedly perpetrated by the Plaintiffs/Applicants onto the suit property. Clearly, these are issues that need to be intensively interrogated by Court during the full trial based on the principles of natural justice.
27. In saying so, I have sought refuge from the decision of:- “Mbuthia – Versus - Jimba credit Corporation Limited 988 KLR 1” , the court held that:-
“In an application for interlocutory injunctions, the Court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.”
28. Similarly, in the case of “Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Ltd” the court held that:-
“In an interlocutory application to determine the very issues which will be canvassed at the trial with finality. All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.”
29. Furthermore, I have carefully interrogated the evidence tendered by the Plaintiffs/Applicants in support of the application. It is trite that he who alleges must proof see the supreme court holding in “ Gatirau Peter Munya – Versus - Dickson Mwenda Kithinji & 3 Others (2014) eKLR”. The Plaintiffs/Applicants allege to be the owners of the properties. Legally speaking, the provision of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012 provide that claims on ownership of land has to be demonstrated through empirical evidence. For instance Certificate of Title, official search etc as conclusive evidence needs to be shown or produced. However, though still at an interlocutory stage, none of these evidence has been tendered in support of their claim. On the contrary, the Defendants/Respondents have at least provided the Court with some brief history of the suit property and attached a few documents cementing their ownership over the properties and which include copies of title deeds. Therefore, in my humble view, I am left to discern that what has been presented before court might be mere allegations without sufficient evidence to back the claim for the time being in force.
30. Therefore, the court is not satisfied that the Applicants have established “a prima facie case” so as to warrant the granting of the orders of injunction. The Plaintiffs/Applicants have not demonstrated what they are bound to loose in the event that the orders sought are not granted and most importantly, how the land belongs to them, the whole aspect of challenging the titles is clearly obscure from the instant pleadings. I am guided by the decision of Ringera J. [as he was then was] in the case of: “ Showind Industries – Versus - Guardian Bank Limited & Another (2002) 1 EA 284” where the Learned Judge stated as follows: -
“…an injunction is granted very sparingly and only in exceptional circumstances such as where the Applicant’s case is very strong and straight forward. Moreover, as the remedy is an equitable one, it may be denied where the Applicant’s conduct does not meet the approval of Court of equity or his equity has been defeated by laches”
31. Nonetheless, and in all fairness, this being a Court of Justice, Equity and Conscience and guided by the provision of Articles 25 ( c ), 50 ( 1 ) & ( 2 ) and 159 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010 on fair hearing, it will still extend to the Applicants an olive branch and accord them a Second bite of the Cherry to enable them put their arts together during the full trial.
32. As was earlier observed, the threshold for grant of injunctive orders are rather conjunctive and not disjunctive, all aspects are to be satisfied. Legally speaking, 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. I am guided by the decision in “ Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others, CA NO. 77 OF 2012”, where the Court expressed itself on the importance of satisfying all the three requirements for an order of injunction as follows: -
“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 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 – Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the A pplicant 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. 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.”
33. Based on the above legal preposition, the Honourable Court finds no basis to consider the other two limbs for granting the interlocutory injunction and hence it stops there.
34. Being a court of record, it is significant to address the issue of admissibility of the evidence made through electronic devices relied upon by the Plaintiffs/Applicants. This was an issue critically raised by the Defendant/Respondents who maintained that there was no Certificate of Production accompanying the photographs. The admissibility of electronic records is provided for under the provision of Section 106B of the Evidence Act , Cap. 80 of Laws of Kenya in the following terms:
“106B(1)Notwithstanding, anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as a computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any
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