MICHELLES S. NIRENSTEIN AND MARA NAPA CAMPS & CONSERVATION CENTER TRUST VS HARRISON PEMBA TAGA AND MIRRIAM TANKUA KASHAA AND 2 Others

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1. The Plaintiffs/Applicants herein brought this   Notice of Motion Application dated 22^nd May 2025, under sections 1A, 1B, and 3A of the Civil Procedure Act and Orders 40 and 51 of the Civil Procedure Rules, 2010, seeking various injunctive orders against the Defendants/Respondents herein.
2.   The prayers sought are; 
3. That the Court issues orders restraining the Defendants, their agents, or servants from carting away any moveable assets, fittings, or items from Mara Napa Luxury Camp pending the hearing and determination of  this  suit.
4. For an order of injunctions compelling the OCPD Mulot to withdraw police officers stationed at, or manning the Mara Napa  luxury  camp,  impeding access by the Applicants and their staff pending the hearing and determination of the suit.
5. For an order of injunction to restrain  the Defendants  by themselves, agents, servants or otherwise howsoever from harassing, threatening ,accosting, interfering and / or intermeddling with the 1st Applicant and the staffers at Mara  Napa Luxury Camp, pending the hearing and determination of the suit.
6. For an injunction to restrain the OCPDs of Talek and Mulot Police Stations from harassing, threatening, accosting, interfering with, arresting, or prosecuting the Applicants or their staff in relation to their lawful occupation of the  Mara Napa camp, on account of their legal occupation and possession of the suit properties as they undertake their duties within the camp, pending the hearing and determination of the suit.
7. That the court do issue an order directing   the restoring the status quo ante, to the effect that the Applicants together with Mara Napa Luxury Camp Staff   to continue being in possession and management of the Mara Napa Luxury Camp situated on the suit property pending the hearing and determination of the suit.
8. An order of injunction to restrain the Defendants whether by themselves, their agents, servants, representatives and howsoever, otherwise from entering, encroaching and / or interfering in whatsoever manner with the premises of Mara Napa Camp and the suit property, pending the hearing and determination of the suit.
9. In the alternative, the applicants prayed for the appointment of an independent manager to take possession, control, and management of the camp pending the hearing and  determination of the suit.
10. That the County Commander, Narok County, under the supervision of the Inspector General of Police, ensures compliance with the orders sought.
11. That the costs of the application be provided for.
12. This Application is premised on various grounds as enumerated on the   face of the said Application, and on the Supporting Affidavit of the 1^st Plaintiff/ Applicant Michelle Schmidt Nirenstein.
13. Among the grounds in support of the Application are; the  dispute herein is  over the ownership of Cis-Mara/Talek 406,407 and 408(herein suit property), upon which the Mara Napa Luxury Camp, was established and is operated; Further that  the 1st Plaintiff/Applicant  Michelle Schmidt Nirenstein  solely funded the acquisition, construction, and running of the Mara Napa Luxury Camp, for the benefit of the Maasai community.
14. In her Supporting Affidavit, 1^st Plaintiff/Applicant averred that the controversy between the parties herein  started after she  filed a suit on 16^th February 2024, wherein  the applicants sought for  injunctive orders against the Defendants/Respondents.  However, the Defendants/Respondents have persistently attempted to take over the Mara Napa Luxury  Camp, unlawfully, resorting to threats, violence, against the 1^st Plaintiff/Applicant and anyone perceived to be in Applicants  camp.
15. The 1^st Plaintiff/Applicant recounted a series of escalating incidents — including invasions by the 1st Defendant aided by Police from multiple Police Stations within the area, violent confrontations, harassment, and the filing of criminal charges allegedly intended to intimidate the Plaintiffs/ Applicants and their staff.
16. It was her contention that her earlier application for injunctive relief was granted by the court (on 23^rd May 2024), preserving the suit property from any interference howsoever by the Defendants. However, the Defendants/Respondents equally filed a suit in HCCC No. E001 of 2024 Friends of Maasai Mara Ltd & another vs Michelle Nirestein against 1^st Applicant where they sought for various orders inter alia a permanent injunction to restrain the Plaintiff/ Applicant herein from accessing or running the Mara Napa Luxury Camp, which orders were declined by the High Court.
17. However, the 1^st Defendant/ Respondent herein defied the Court Orders of injunction that were issued by this court, and have   continued with harassment, and orchestrated illegal, arrests of staffers, and also frustrating lawful court orders.
18. The Applicants further contended that the Defendants/Respondents have not only violated existing injunctive orders, but have also used the criminal justice system to settle a civil dispute. It is their   claim that Police Officers have set up a camp within the Mara Napa premises to bar access by the Plaintiffs/ Applicants and staff, while carting away movable assets.

1. Further, that given the ongoing violations, threats to life, and contempt of court, the Applicants urged the Court to urgently intervene by issuing the injunctive and preservatory orders sought in the instant Notice of Motion Application to maintain the status quo ante, and prevent further loss, harassment, or damage pending the hearing and determination of the main suit.
2. The deponent of the Supporting Affidavit is an American national residing in Kenya, who alleged that she funded the entire project, including the purchase of the suit property being Cis-Mara/Talek 406,407 and 408, construction of the Mara Napa Luxury camp, acquisition of assets, and operational costs until 13^th May 2025.
3. It was her further contention that she resided on the suit property until December 2024, when circumstances forced her to leave. She also contended that her intention of establishing the Camp was solely for the benefit of the Maasai community, as evidenced by the registration of the non-profit organization in the United States.
4. The deponent also highlighted the deterioration of relationship between the parties herein, which has culminated in threats, harassment, and violence against the 1st Applicant and her staff.  Further, that the 1st Defendant allegedly violated court orders, harassed the Applicants, and used Police officers to intimidate and evict them from the Mara Napa Luxury Camp.
5. The 1^st Applicant specified the incidents and detailed them as follows; that the 1st Defendant raided the Mara Napa Luxury Camp with 27 Police Officers on 6^th June 2024, breaking the gate, brandishing guns, and intimidating staff.
6. That when the 1st Applicant attempted to file complaints at Talek Police Station,  the Police officers at the said Station  refused to record her statements or issue an OB number, allegedly due to collusion with the Defendants.
7. Further,  the 1st Defendant continued his threats to cause a breach of peace, by  the filing of Counter application seeking eviction orders, and that was an  alleged manipulation of the judicial system by the 1^st  Defendant, since he  obtained irregular ex parte orders from a subordinate court in MCCCMISC No. E004 of 2024, which contradicted orders issued by superior courts.
8. She contended that these   Orders were used to evict the Mara Napa Luxury  Camp staff, cart away assets, and establish a Police Camp on the property to prevent access by the Plaintiffs/Applicants.   The deponent accused the Defendants/Respondents of forum shopping, material non-disclosure, and violating the orders of superior courts.
9. The 1^st Plaintiff/Applicant also contended that the socio-economic impact of the Defendants’ actions, has rendered the staff jobless and homeless, violating their rights under Article 43 of the Constitution of Kenya. She expressed her loss of confidence in the security agencies, citing threats to her life, and the lives of her staff.
10. Further, the deponent recounted incidents of harassment, including threatening messages, physical attacks, and the use of the criminal justice system to settle the civil dispute. She referred to the  ruling  of  the Court of Appeal in Shimmers Plaza Limited vs. National Bank of Kenya Limited [2015] eKLR,  which emphasized  the importance of courts upholding their authority, and punishing those who disobey court orders to prevent anarchy.
11. The Application is vehemently opposed by the  Defendants/respondents herein  vide their  Grounds of Opposition  dated 4^th June 2025; wherein they contended that prayers No.1 and 2 of the Plaintiffs/Applicants  Notice of Motion Application  are already covered by existing preservatory orders, and the Plaintiffs/Applicants  have failed to prove any breach or provide an inventory of movable assets, rendering the prayers hollow.
12. Further that prayers No.  3, 4, 7, and 8 are untenable as equitable orders of injunctions act in persona, and cannot be issued against entities like “OCPD Mulot Police Station” and “OCPD Talek Police Station,” who are not parties. The Defendants/Respondents assert that it is the duty of the Police to maintain law and order, and any serious allegation of abuse of power must be brought through proper judicial review or constitutional proceedings.
13. The Defendants also contended   that prayers No 5, 6, 11, and 12 of the Applicants Application cannot be granted as the Defendants/Respondents are the legal and registered owners of Mara Napa Luxury Camp, and the land titles  holder   cannot be deprived of their rights without an adverse finding on their title, which cannot be determined at an interlocutory stage.
14. Further, that these   prayers are also sub judice to  Narok HC Constitutional Petition No. E003 of 2025, and therefore, this  application improperly seeks to pre-empt the main suit concerning ownership, contrary to rule of  natural justice and the right to fair hearing. That the 1^st and 2^nd  Defendants/Respondents  being husband and wife, reside with their infant daughter on the  part of the suit property, which constitutes their matrimonial home.
15. The Defendants/Respondents  further contended that Prayer No 13, which seeks   appointment of an independent manager, is claimed to be without legal basis, ultra vires the court, and likened to an extreme analogy of King Solomon’s case. The Defendants further alleged that the Plaintiffs are engaging in forum shopping by filing multiple suits and applications, which suits seek   similar orders, which constitutes abuse of court process.
16. While citing   the case of Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR, the Defendants/Respondents contended  that  it is the duty of the court to prevent its process from being abused, and concluded that the Plaintiffs/Applicants Notice of Motion Application  is hopeless, fatally flawed, and it ought to be dismissed with costs.
17. The instant Notice of Motion Application was canvassed by way of written submissions. The Plaintiffs/ Applicants filed their written submissions through Okwach & Co Advocates, which submissions are   dated 19^th June 2025. It is the Applicants submissions   that  the Plaintiffs/  Applicants'' have sought  various injunctive orders  to protect their interests in the Mara Napa Luxury Camp, pending the hearing and determination of the suit.
18. The Plaintiffs/Applicants, further submitted that they have sought for restraining orders to prevent the Defendants/ Respondents from removing assets, interfering with their staff, and encroaching on the camp premises. They also sought mandatory injunctions to restore their possession and management of the camp, withdraw Police Officers stationed there, and enforce compliance through the County Commander and Inspector General of Police.
19. In response to the Defendants/Respondents  Grounds of Opposition, they submitted that they deserve the orders sought.   Reliance was placed in the cases of Kennedy Otieno Odiyo & 12 Others vs Kenya Electricity Generating Company Limited [2010]eklr and ARJ Capital Limited vs Njeru & 3 Others.(ELC E041 OF 2022)[2024] KEELC 323(KLR), where the court held;

“From the authorities I have cited above, grounds of opposition are to be deemed as general averments and do not deny or respond to issues in an application. A preliminary objection and grounds of opposition though means of opposing an application, they are not to be used when one intends to deny allegations in an application. In my view a replying affidavit would best serve to deny issues raised in an application. It has been held that where a replying affidavit is not filed then in essence the averments in an application are deemed as uncontroverted and unchallenged. In considering the mode of opposition opted to by the respondents and the averments therein I find that the issues in the application are not rebutted and the application stands unopposed.”

1. The Plaintiffs/Applicants set out  the following issues for determination;
2. Whether the applicants have met the criteria for the grant of an order of temporary restraining injunction pending hearing and determination of this suit.
3. Whether an interlocutory injunction can be issued against the registered proprietor of the property in dispute.
4. Whether the applicants have met the criteria for the grant of an order of temporary mandatory injunction pending the hearing and determination of this suit.
5. Whether injunctive orders can be issued against OCPD Mulot Police Station and OCPD Talek Police Station in this matter.
6. Whether this court should grant orders allowing status quo ante to prevail pending the hearing and determination of this suit and
7. Whether this court can grant an order appointing an independent manager/receiver pending the hearing and determination of this suit.
8. On whether the applicants have met the criteria for the grant of an order of temporary restraining injunction pending hearing and determination of this suit the Plaintiffs/Applicants submitted that they meet the legal criteria for the  grant of  injunctions. They relied on the  principles set out  in the case of  Giella v. Cassman Brown (1973) EA 358 and reaffirmed in the case of  Nguruman Limited v. Jan Bonde Nielsen & 2 others (2014) eKLR, which outlined the requirements for granting temporary injunctions: being  establishing a prima facie case, demonstrating irreparable injury, and showing that the balance of convenience favours the applicant.
9. It was the Applicants further submissions that they have established a prima facie case with probability of success. These submission was supported by evidence of their financial investment in the property, and previous court rulings recognizing their interest. They cited the ruling of the court dated 23^rd May 2024, and acknowledged that the applicants have identifiable interest in the suit property, which has further strengthened their case.
10. It was the Plaintiffs/Applicants further  submissions that they have established   irreparable harm or loss due to the eviction, cessation of operations, and removal of items from the camp, which impacts their livelihood, employees, and the surrounding community. The Applicants relied on the case of  Pius Kipchirchir Kogo v. Frank Kimeli Tenai [2018] KEELC 2424 (KLR), to define irreparable injury as harm that cannot be adequately compensated by damages.
11. It was the Plaintiffs/Applicants further submissions that   their investment of USD 2,452,619, in the camp and the financial and social losses caused by its closure, is irreparable and cannot be compensated by an award of damages. The applicants challenged the Defendants'' title to the suit property, alleging fraud and misrepresentation, and argued that interlocutory injunctions can be issued against registered proprietors under such circumstances.
12. The Applicants relied on the cases of   Dina Management Limited v. County Government of Mombasa & 5 others [2023] KESC 30 (KLR) and Munyu Maina v. Hiram Gathiha Maina [2013] eKLR,  to  emphasize that a  registered proprietors must prove the legality of their title when it is under challenge.
13. On Whether injunctive orders can be issued against OCPD Mulot Police Station and OCPD Talek Police Station in this matter the Plaintiffs/Applicants addressed the Defendants'' alleged misuse of Police officers to harass and evict the applicants, justifying injunctive orders against the Police. The applicants argued that the Police have acted as agents of the Defendants/Respondents herein by  aiding in harassment and eviction of the Applicants and their staff, and therefore, injunctive orders against them are appropriate.
14. Further reliance was sought in the case of  Kamau Mucuha v. Ripples Ltd [1993] KECA 82 (KLR) and Thompson v. Park [1944] 2 All ER 477, which establish that the status quo to be preserved is the one that existed before the illegal acts of the Defendants. Therefore, the Plaintiffs/  Applicants urged  the court to restore the status quo ante, allowing them to regain possession and management of the camp, as it was before the alleged illegal eviction.
15. On whether this court can grant an order appointing an independent manager/receiver, the Plaintiffs/Applicants submitted that  a receiver/manage can be appointed if the court finds the dispute too contentious to manage the camp, and prevent its assets from being wasted.  Reliance was sought in  Section 63(d) and (e) of the Civil Procedure Act,  which allows the court to appoint a receiver who shall manage the camp.
16. Further reliance was sought in  the cases of Nasir Ibrahim Ali & 2 others v. Kamlesh Mansukhlal Damji Pattni & another [1998] KECA 181 (KLR) and Nishith Yogendra Patel v. Pascale Mireille Baksh & 2 others [2015] eKLR, which highlight the role of receivers in preserving the subject matter of litigation.
17. In conclusion, the  Plaintiffs/Applicants  submitted that there was   need to preserve the status quo,  so as to protect their investments, and prevent further harm to employees, and the community. They urged the court to grant the various injunctions as sought, and award costs in their favour.
18. The Defendants/ Respondents filed their written submissions dated 18th July 2025, through Kanchory & Co Advocates, in opposition to  the Plaintiffs/Applicants’  instant Application.
19. It was the Defendants/  Respondents  submissions that this    application was unnecessary and constituted an abuse of the court process, as the issues raised herein were already addressed by existing court orders dated 23rd May 2024, and 28th August 2024.
20. The Defendants/ Respondents further submitted   that the Plaintiffs failed to demonstrate any violation of these orders, and accused them of engaging in a multiplicity of applications and forum shopping, which clogs the administration of justice. To support their submissions, the Defendants/  Respondents relied on  various decided cases;  Kauty Academy v Star Gold Enterprises Limited & another (Miscellaneous Application E015 of 2023) and Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR, which cases  emphasized that the  filing of  multiple applications seeking similar orders is a misuse of the court process.
21. On the request for injunctive orders against unnamed entities, such as “OCPD Mulot Police Station” and “OCPD Talek Police Station,” the Defendants/Respondents submitted that such orders cannot be issued to   these entities, which are not recognized by law and are not parties to the suit.
22.   Further, the Defendants/ Respondents submitted that injunctive orders, which act in personam and not in rem, and cannot be issued against individuals or entities who have not been served or given an opportunity to respond. Further, the Defendants/ Respondents submitted that their right to property under Article 40 of the Constitution of Kenya are being threatened, as the Plaintiffs/Applicants’ Application sought to improperly wrest control of the Mara Napa Luxury Camp, and Land title No. Cis-Mara/Talek/406, Cis-Mara/Talek/407 and Cis-Mara/Talek/408, from Defendants who are the registered legal proprietors, without an adverse finding on the legality of their title.
23. The Defendants/Respondents  argued that the instant application undermines the Respondents  right to a fair hearing under Article 50(1) of the Constitution, and that the balance of convenience tilts in their  favour.
24. On appointment of an independent manager to take control of the Mara Napa Luxury  Camp,  the Defendants/ Respondents  submitted that such a request is legally baseless and ultra vires the powers of this court’s jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment & Land Court Act.
25. In conclusion, the Defendants/ Respondents submitted that the Plaintiffs/Applicants’ application is fatally flawed, lacked merit, and should be dismissed with costs awarded to the Defendants.
26. The above are the grounds for and in support of this Application, and the grounds in opposition to the said Application, which this court has carefully considered together with the rival written submissions, the cited authorities and relevant provisions of law, and renders itself as follows;
27. From the court record, it is evident that the Plaintiffs/ Applicants herein filed this suit on  16^th  February 2024, wherein they  sought for various prayers among them; a declaration that the 1^st and 3^rd Defendants  acquired the titles  for land parcels No Cis Mara/ Talek/406, 407 and 408 illegally , unprocedurally , fraudulently and through misrepresentation; a declaration that the 1^st and 3^rd Defendants holds the titles to the suit parcels of land in trust for the charitable entity set up for the benefit of the Maasai Community among other prayers.
28. Simultaneously to the Plaint, the Plaintiffs /Applicants herein filed a Notice of Motion Application even dated, wherein they sought for various injunctive Orders against the Defendants/Respondents herein seeking to restrain them from selling, Charging licencing or in whatsoever manner disposing any interests on the suit parcels of land pending the hearing and determination of the suit, among other prayers.
29. After inter- parties hearing of the said Application, this court constituted differently delivered its ruling on 23^rd May 2024, and allowed some of the injunctive orders , but declined to   allow the prayer for forensic audit into the account and financial statement of Mara Napa Luxury Camp.
30. Further, on 13^th June 2024, the Plaintiffs/Applicants filed another Notice of Motion Application under Order 40 Rule1 of Civil Procedure Rules, and sought for injunctive orders to restrain the Defendants/Respondents from entering, interfering, or encroaching the premises of Mara Napa Luxury Camp  or any motor vehicles situate on the suit properties  pending the hearing and determination of the suit.
31. The Defendants/ Respondents also filed a Notice of Motion Application dated 10^th July 2024, and also sought for Orders that the Plaintiffs be ordered to surrender and restore management and running of Mara Napa Camp to the Defendants/ Applicants, and refrain from meddling or interfering with the business operations of the said Camp;
32. The Defendants also sought to restrain the Plaintiffs from entering or remaining on the suit properties without authorities of the Defendants/ Applicants.
33. The two Applications together with a Preliminary Objection were canvassed together through written submissions, and court did deliver its Ruling on 28^th August 2024, wherein it allowed the Plaintiffs/Applicants Notice of Motion Application dated 13^th June 2024, to the extent that the Defendants/Respondents were restrained from interfering in any manner that would alter the suit properties being Cis Mara/Talek/ 406, 407 and 408, pending the hearing and determination of the suit.
34. Further, the Defendants Notice of Motion Application dated 10^th July 2024, was allowed to the extent that the Plaintiffs were ordered to make full and proper account of all the revenue and expenditure of the camp for a period of 10^th January 2024, to the date of the ruling.
35. Therefore, from the above court record, the Plaintiffs/Applicants herein are in possession of two Rulings that did allow and grant them injunctive orders, as  sought by them in the two referred Applications.
36. After the Interlocutory Applications, the matter came back to court severally for Case Management and on 7^th April 2025, the matter was certified ready for hearing virtually.  On the date of the hearing, the Defendants objected to hearing of the suit virtually, which objection culminated in a Ruling of 5^th June 2025, wherein the court dismissed the said objection.
37. Thereafter, the Plaintiffs/ Applicants filed the instant  Notice of Motion Application, wherein they have sought for various injunctive orders and an order to appoint an independent manager to take possession, control and management of the Mara Napa Luxury Camp pending the hearing and determination  of the suit herein.
38. This  court has found it necessary to give a breakdown of the Applications already filed and determined  in  this suit from inception to now, since the Defendants/ Respondents have alleged that the Plaintiffs /Applicants have sought for injunctive orders that have  already been  granted.
39. The Plaintiffs /Applicants have sought for temporary orders of injunctions, and  temporary injunctive orders are a court-issued directives, which are issued  to compel a person or entity to either stop a certain action or to perform a specific action. These orders are issued to protect rights or prevent harm,  especially if an award of monetary damages would not be not be a sufficient remedy. See the cases of Rockland Kenya Limited v Elliot White Miller [1994] eKLR, and  Nduati & 2 others v Chemutai & 3 others [2025] eKLR deal
40. Therefore, the purpose of injunction is to prevent harm, protect property, and uphold legal rights, especially where monetary compensation would be inadequate, and to uphold public good.
41. The Plaintiffs/ Applicants have sought for various injunctive orders, which have been vehemently opposed by the Defendants/Respondents. The issue for determination is whether the Plaintiffs/Applicants are deserving of the orders sought.
42. The Application herein is anchored under Sections 1A,1B and 3A of the Civil Procedure Act, which provisions of law deal  with the Overriding Objective of the Act, which obligate the court to facilitate expeditious, just, proportionate and affordable resolution of disputes before the court.
43. Further under Section 3A, the court has unfettered powers to issue orders that are necessary for the end of justice to be met.  Under Order 40 Rule 1 of Civil Procedure Rules, the court has discretion to issue temporary orders of injunction wherein the suit in dispute is in danger of being wasted, damaged or alienated by any party to the suit.
44. In the instant suit, the Plaintiffs/Applicants have alleged that the Defendants are engaged in acts of removal of moveable assets from Mara Napa Luxury Camp, are threatening the Plaintiffs/Applicants with harassment, and have caused a contingent of Police officers from various stations to be stationed in the said Mara Napa Luxury Camp, thus impending the Plaintiffs/Applicants access to the said camp.
45. Given that the Defendants /Respondents have opposed the instant Application, it is incumbent upon the Plaintiffs/Applicants to avail sufficient evidence, and establish the laid down principles for grant of injunctive orders.
46. Injunctive Orders are discretionary equitable remedies, which means that the courts are not bound to grant an injunction automatically, but rather to grant or not to grant an injunction is the exercise of court’s discretion, which discretion must be exercised judiciously. See the case Hasmukh Khetshi Shah vs Tinga Traders Ltd. Civil Appeal No.326 of 2002, where the court held;

“ It must be stated at the outset that the granting of an interim injunction is an exercise of judicial discretion and an appellate Court will not interfere unless it is shown that the discretion has not been exercised judicially.”

1. Further, injunctions are issued   based on principles of fairness and justice, and while considering such an application, the court should be cautious not to deal with contested issues with a finality based on Affidavit evidence. See the case of Narendra Chaganlal Solanki vs Neepu Auto Spaces Ltd, Kisumu High Court Civil Case No. 90 of 2003, where the court held;

“in an interlocutory application for injunction, the court must warn itself of the gravity of danger of making conclusive findings that may prejudice the interest of the parties at the hearing of the suit and should as far as possible exercise some cautionary steps.”

1. Whether to grant or not to grant injunctive orders , the court will rely on the principles set out in the case of Giella vs Cassman Brown& Co. Ltd, [1973]E.A 385;

“The conditions for the grant of an interlocutory injunction are well settled in East Africa.  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 should not adequately be compensated by an award of damages.  Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

1. In the case of Edwin Kamau Muniu vs Barclays Bank of Kenya, Nairobi, (Milimani HCCC No.118 of 2002; the Court held;

“ In an interlocutory application, the court is not required 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…”

1. The court will now  proceed to  consider the available evidence,  together with  the principles for grant of injunctive orders and then determines whether the Plaintiffs/Applicants are deserving of the orders sought.  The court will be cautious not to determine the disputed facts with finality at this juncture.
2. Have the Plaintiffs/ Applicants herein established that they have a prima facie case with probability of success. Firstly, this court should point out that the Plaintiffs/ Applicants are beneficiaries of two sets of injunctive orders, which were issued separately by this court vide two earlier Applications for injections.
3. The Application herein is premised on the fact that the Defendants/ Respondents have not obeyed the said injunctive Orders, and have continued to carry out the acts which they were restrained from undertaking. Further, that the Defendants/ Respondents have continued to harass and threaten the Applicants and their staff, thus in disregard of the existing court orders. If that is the case, the action of the Defendants/Respondents constitute or   borders on contempt of court orders.
4. The law is very clear on what happens when there is contempt of court orders, Order 40 Rule 3(1) of Civil Procedure Rules, states;

“(1) In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release.

1. Further Section 29 of the Environment  & Land Court  Act, which stipulates the Jurisdiction of this court states;

“Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.”

1. Therefore, if the Defendants/ Respondents  are in contempt of court orders, then the Plaintiffs/Applicants ought to have filed the relevant Application, before the court for contempt. However, the Plaintiffs/ Applicants chose to file another Application for Injunctive Orders. 
2. Be that as it may, prima facie case was described in  the case of Mrao Ltd vs First American Bank Kenya Ltd & 2 others [2003] eKLR to mean;

“a prima facie case in a civil application includes but is 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 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.”

1. The Plaintiffs/Applicants alleged that the Defendants/ Respondents have carted away moveable assets from the Mara Napa Luxury Camp. This claim  is an   allegation, and allegation must be backed by evidence. Carting of movable assets can be proved by attaching evidence of such action. However, in the 1^st  Applicant’s Supporting Affidavit,  nothing was attached to the Application to confirm and prove  this carting away of the moveable assets. Which were these movable assets?
2. Further, the Plaintiffs/Applicants have  alleged  that there are Police Officers from Mulot and  Talek Police Stations numbering to about 27, who are stationed at  and are  manning Mara Napa Luxury Camp, and have impended access to  the said Camp by the Plaintiffs and their staff.
3. The Plaintiffs/ Applicants have  made allegations of presence of so many Police officers at the disputed premises and they  needed to prove the said allegations by availing evidence of  the said Police officers manning the Mara Napa Camp. How could they avail such evidence? Through photographs/ Photographic evidence or any evidence of presence of such Police Officers at the said  Camp. No such evidence  was availed, and this court cannot find with certainty that indeed, there are Police Officers stationed at the said MARA Napa Camp, and  are manning it, impending access by the Plaintiffs/Applicants and their staff.
4. Without availing such evidence, the court finds and holds that the Plaintiffs /Applicants have not established that they have a prima facie case with probabilities od success, especially on the issue of carting away of moveable assets, and harassment by a contingent of Police Officers at the Camp.  Further, this court takes  judicial notice of the fact that the Plaintiffs/Applicants are beneficiaries of two Rulings that allowed their Applications for injunctions.
5. Given that the principles of injunction are sequential in nature,  failure to establish one of them means that there is no need of  considering the other principle of irreparable harm/ injury. See the case of Nguruman Ltd v Jan Bonde Nielson & 2 Others [2014] eKLR, where t he Court of Appeal  held  that these three conditions and stages must be applied "as separate, distinct and logical hurdles, which the applicant is expected to surmount sequentially". Therefore, it means that  an applicant cannot skip any  stage,  and cannot move directly  to the balance of convenience without proving irreparable injury.
6. Evidently, the Plaintiffs/ Applicants needed to first demonstrate to the court that their case is likely to succeed at trial on the allegations made, by establishing that they have a prima facie case with probability of success.  Since the court has determined that  the Plaintiffs/ Applicants have not established a  prima facie case,  then this  application has  failed  at this first hurdle, and the court does not need to consider the other conditions. See the case of   Kenya Commercial Finance Co. Limited – Versus - Afraha Education Society [2001] Vol. 1 EA 86.
7. On prayer No 13, which is alternative to prayer No 10, the Plaintiffs /Applicants have sought for an order that the court do appoint an independent manager to take possession, control and management of Mara Napa Luxury Camp pending the hearing and determination of the suit.
8. The above prayer is a mandatory injunction, which  is a court order  issued to  compel  a party to perform a specific act, rather than just refraining from an action.  In granting such prayers, it requires a higher degree of assurance and  is only granted  in exceptional circumstances where the case is clear or where the act is simple and easily remedied.  See the case of Showind Industries Ltd vs Guardian Bank Ltd (2002)1 EA 284, where  the court held; “

‘’…. mandatory  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

1. It is trite that a mandatory injunction may be granted on an interlocutory (temporary) application in given circumstances, as was established in case of  Kenya Breweries Ltd. & Ano. Vs. Washington O. Okeyo:, where the court set out the conditions as;
   1. When the case is clear and the court believes it should be decided immediately.
   2. When the act to be remedied is a simple and summary one that can be easily fixed.
   3. If the defendant has attempted to "steal a march" on the plaintiff.
2. Having looked at the case herein and the contested issues, this court finds and holds that it is not a clear case which should be determined immediately. Further, the act sought to be remedied is not a simple one, which can be determined in a summary manner or easily fixed. Further, there is no evidence that the Defendants herein are trying to steal a march on the Plaintiffs, and thus a MANDATORY INJUNCTION cannot be issued at this stage. Let the parties avail evidence in the main trial, and the said evidence be tested through the usual cross examination, and proof the case on the usual   standard of balance of probabilities.
3. As the court pointed out earlier, the Defendants/  Respondents  Notice of Motion Application dated 10^th July 2024, was allowed wherein the Plaintiffs/ Applicants were directed to make a full and proper account of all the revenue and expenditure of the Camp for a period starting from 10^th January 2024 to the date of the said  Ruling.
4. Did the Plaintiffs/Applicants herein comply with the said Court Order? The court asks this question since a party who seeks equitable relief must come to court with clean hands.  See the case of  Esther Nugari Gachomo v Equity Bank Limited [2019] KEHC 7891 (KLR), where the court while relying on the case of   Caliph Properties Limited –vs- Barbel Sharma & Another [2015] eKLR, stated:

“Secondly, the injunction sought is an equitable remedy. He that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies. … He who comes to equity must fulfil all or substantially all his outstanding obligations before insisting on his rights..”

1. The issue of ownership of the suit properties where Mara Napa Luxury Camp is situated is contested. The Plaintiffs/ Applicants prayer if granted at this juncture would be tantamount to determining the contested issues with a finality at the interlocutory stage.
2. Further, the Plaintiffs/Applicants have not established the above principles for grant of Mandatory injunctions as was   held in the case of Washington  Okeyo vs Kenya Breweries Ltd( supra)
3. On the prayer of directing status quo ante, the court finds and continue to hold that the Plaintiffs/ Applicants have been issued with injunctive orders through two other rulings, and if there is any breach of the said Orders, the Plaintiffs/Applicant ought to have filed the necessary Application instead of filing another interlocutory injunction for Status quo.
4. Having considered the instant Notice of Motion Application dated 22^nd May 2025, the court finds and holds that the same is   not merited, and  consequently, the instant Application  is dismissed entirely.
5. On costs, given the circumstances of this case, the court directs that the costs be in the cause. Further, the court directs the parties to prepare the main suit for hearing and the same be heard expeditiously, so that the issues in dispute can be determined at once.
6. For the above reasons, the parties are urged to desist from filing numerous interlocutory Applications, which Applications delay the hearing of the main suit, and clog the judicial system, thus impending on the administration of justice. 
7. Further, as provided by Sections 1A and 1B of the Civil Procedure Act, on the duty of the court  to facilitate, expeditious and  affordable resolutions of civil  disputes before  it , and for efficient use of available judicial resources, and  taking into account the provisions of Article 159(2)(C) of the Constitution on promotion of ALTERNATIVE DISPUTES RESOLUTIONS( ADR), the court encourages the parties herein who seemed to have had a cordial relationship before the disagreement to try and resolve the dispute herein through ADR.

It is so ordered.

Dated, signed and delivered virtually  at Narok this 20^th day of November 2025

      L. Gacheru

      Judge.

Delivered online in the presence of

Elijah Meyoki - Court Assistant

Mr. Shikanda & Okwach for the Plaintiffs/Applicants

Mr. Kanchory for the Defendants/Respondents.

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