A. Introduction
1. The Court is called upon to determine whether, before the competing claims to the suit properties are subjected to trial, the Petitioner has established a sufficient legal and evidential basis for restraining the Respondents from dealing with the properties. Interim relief preserves an identifiable right or subject matter; it cannot be founded upon uncertainty as to the property, the right asserted, or the harm said to be imminent.
2. By a Notice of Motion dated 14th October 2025, the Petitioner seeks, principally, conservatory and injunctive orders restraining the Respondents, their servants, agents and employees from entering upon, constructing on, cultivating, selling, transferring, fencing, fixing beacons upon or otherwise interfering with Plots Nos. DUSE 2481, 2482, 2483, 2484, 2485 and 2491 situated in Barwaqo area, Mandera County.
3. The Petitioner also seeks orders protecting his alleged quiet possession, ownership and use of the properties pending determination of the Petition, together with orders maintaining the status quo by prohibiting construction or development upon them.
4. The application is expressed to be brought under, among other provisions, Order 40 Rules 1 and 2 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution. It is supported by the Petitioner’s affidavit sworn on 14th October 2025.
5. The 2nd Respondent opposed the application by way of her replying affidavit, sworn on 29th January 2026, whereas the 1st Respondent did not oppose the application. The parties subsequently filed written submissions, which the Court has considered together with the Petition, the application, the affidavits and the documents annexed thereto.
B. The Petitioner’s case
6. The Petitioner asserts that he is the lawful owner of Plots Nos. DUSE 2481, 2482, 2483, 2484, 2485 and 2491. He states that each plot measures 100 by 100 and that the six plots occupy approximately two acres.
7. According to him, he acquired the properties during a demarcation and allocation exercise undertaken in 2007. He states that he paid rates to the then Town Council of Mandera and took possession of the properties while they were vacant and bushy.
8. He claims to have occupied the land peacefully between 2007 and 2022, during which period he allegedly constructed temporary buildings, established his home and planted trees.
9. The Petitioner avers that in 2022 the 1st Respondent evicted him on the representation that the land was required for the construction of a bypass road. He contends that although the road was subsequently constructed, it did not pass through or affect his properties.
10. He alleges that instead of restoring the properties to him, the 1st Respondent subdivided the land into twelve plots, including Plots Nos. 130, 131, 134, 135, 142, 143, 145, 146, 147, 148, 149 and 150. He further alleges that part of the land, comprising Plots Nos. 134 and 135, was allocated or sold to the 2nd Respondent.
11. The Petitioner states that the 2nd Respondent fenced part of the land and caused his arrest and prosecution when he attempted to assert his rights over it. He relies on the outcome of the criminal proceedings, in which the criminal court considered that the parties’ competing claims to ownership were better resolved in civil proceedings.
12. To support his claim, the Petitioner produced several receipts issued by the former Town Council of Mandera, a sketch said to show the location of his plots, proceedings and a judgment from the criminal cases, correspondence concerning his brother’s land and a demand letter.
13. In his submissions, the Petitioner contends that the receipts and sketch map constitute sufficient evidence of his ownership. He argues that his eviction rendered him and his family homeless and that continued occupation and development by the Respondents will cause him irreparable loss.
14. Relying on Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & others [2016] eKLR , the Petitioner submits that he has demonstrated a prima facie case, the danger of prejudice and the likelihood that the Petition will be rendered nugatory unless the properties are preserved.
C. The Respondents’ case
15. The 2nd Respondent disputes the Petitioner’s ownership, possession and alleged eviction. She contends that the Petitioner has not produced an allotment letter, lease, title document, survey plan, registry record, beacon certificate or any other document capable of establishing a proprietary interest in the land.
16. She points out that the receipts relied upon cover only a limited period and do not, by themselves, establish an allocation or continuous occupation between 2007 and 2022.
17. The 2nd Respondent further contends that no eviction notice, demolition notice, compulsory acquisition notice, development approval, photograph or other record has been produced to substantiate the alleged eviction, demolition and developments on the land.
18. Her case is that the disputed land formed part of public land lawfully subdivided by the 1st Respondent. She states that Plots Nos. 134 and 135 were allocated to her in 2021.
19. In support of her claim, she produced a certificate of ownership for Bypass/2021/135 dated 17th November 2025 and a letter from the County Director of Land Administration confirming that Plots Nos. 134 and 135 at Barwaqo Bypass had been allocated to her.
20. The 2nd Respondent submits that the Petitioner has not satisfied the threshold for conservatory relief identified in Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & others [2016] eKLR . She argues that he has demonstrated neither a prima facie case, a real danger of prejudice, the likelihood that the Petition will be rendered nugatory, nor any public interest warranting preservation of the disputed properties.
21. Relying on Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KLR 125 , the 2nd Respondent contends that a prima facie case requires evidence of an apparently existing right which has been infringed. In her view, the receipts and informal sketch produced by the Petitioner neither establish a proprietary interest nor connect the DUSE plots to Bypass Plots Nos. 134 and 135.
22. On irreparable injury, the 2nd Respondent relies on Kenya Airline Pilots Association v Kenya Airways PLC; Central Organization of Trade Unions (Interested Party) [2020] eKLR and Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR . She submits that the apprehended injury must be real, substantial and incapable of adequate compensation by damages, whereas the Petitioner’s alleged loss remains speculative and, if ultimately proved, capable of valuation.
23. Lastly, citing Paul Gitonga Wanjau v Gathuthis Tea Factory Company Ltd & 2 others [2016] eKLR , the 2nd Respondent argues that the balance of convenience requires the Court to compare the respective prejudice likely to be suffered by the parties. She maintains that she has been in possession since 2022 pursuant to an allocation by the 1st Respondent and that the orders sought would disturb, rather than preserve, the prevailing state of affairs.
D. Issue for determination
22. The single issue for determination is whether the Petitioner has satisfied the threshold for the grant of conservatory, interlocutory injunctive or status quo orders pending determination of the Petition.
E. Applicable legal principles
23. Although the application employs the expressions “conservatory order” and “injunction” interchangeably, the two remedies are conceptually distinct. A conservatory order is a constitutional public-law remedy intended to preserve the subject matter and uphold constitutional values pending determination of a constitutional dispute. An interlocutory injunction ordinarily protects an identified private right against actual or threatened infringement.
24. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR , the Supreme Court explained that conservatory orders are granted upon the inherent merit of the case, taking into account the public interest, constitutional values, the proportionate magnitudes and priority levels attributable to the relevant causes.
25. Similarly, in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR , the Supreme Court emphasized that conservatory relief calls for consideration of the arguability of the case, the public interest and the need to preserve the substratum of the proceedings. Conservatory orders are therefore not granted merely because a constitutional provision has been invoked.
26. At the interlocutory stage, the applicant must demonstrate a prima facie constitutional grievance and a real danger that, unless the order is granted, he will suffer prejudice or the Petition will be rendered nugatory. The prejudice must be actual, imminent and demonstrable; it cannot rest on speculation.
27. Where an interlocutory injunction is sought, the applicable test remains that stated in Giella v Cassman Brown & Co. Ltd [1973] EA 358 : the applicant must establish a prima facie case with a probability of success; demonstrate that he stands to suffer injury which cannot adequately be compensated by damages; and, where the Court remains in doubt, show that the balance of convenience favours the grant of relief.
28. In Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR , the Court of Appeal explained that a prima facie case is more than an arguable case. The evidence must disclose an apparently existing right which has been infringed and calls for an answer from the opposite party.
29. The three requirements governing interlocutory injunctions are distinct and sequential. As the Court of Appeal held in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR , once an applicant fails to establish a prima facie case, the Court need not proceed to examine irreparable injury or the balance of convenience. Where all the requirements are considered, each must nevertheless be independently satisfied.
30. At this stage, the Court is not required to determine the contested ownership conclusively. It must avoid making definitive findings that may prejudice the trial. Nevertheless, the Court must examine the material sufficiently to determine whether the applicant has identified an apparently enforceable right and the property to which that right attaches.
F. Analysis and determination
Whether a prima facie case has been established
31. The foundation of the application is the Petitioner’s assertion that Plots Nos. DUSE 2481, 2482, 2483, 2484, 2485 and 2491 were allocated to him in 2007. The documents placed before the Court do not, however, disclose the allocation process through which the alleged interest was created.
32. No allotment letter, allocation minutes, register of allottees, survey record, part development plan, beacon certificate, lease or other record from the allocating authority has been produced. The Petitioner states that an officer referred to as “DLASO” demarcated the properties for him, but no report, correspondence or affidavit from that officer has been presented.
33. The receipts produced by the Petitioner may constitute evidence that certain payments were made to the former Town Council of Mandera. Payment of rates or other municipal charges does not, without evidence of the underlying allocation, necessarily confer ownership. The receipts are not a substitute for proof that the allocating authority identified and lawfully allocated the particular land to the Petitioner.
34. More significantly, the material before the Court does not establish the geographical relationship between the Petitioner’s Plots Nos. DUSE 2481, 2482, 2483, 2484, 2485 and 2491 and Bypass Plots Nos. 134 and 135 occupied by the 2nd Respondent.
35. The Petitioner alleges that the six DUSE plots were subdivided into twelve new plots, including Plots Nos. 134 and 135. That assertion required, at the minimum, survey, planning or cadastral evidence showing the original plots, the subdivision exercise and the resultant parcels. No such evidence was produced.
36. The sketch relied upon by the Petitioner is not demonstrated to be an approved survey or planning record. There is no evidence identifying its author, the authority under which it was prepared, its coordinates, scale, relation to the bypass subdivision or its approval by the relevant land administration office.
37. The description and acreage of the alleged properties also remain uncertain. The Petitioner states that each of the six plots measures 100 by 100, without specifying the unit of measurement. He simultaneously describes their combined area as approximately 0.08 hectares and as two acres. Those measurements are not equivalent. This internal inconsistency reinforces the uncertainty surrounding the identity and extent of the land for which protection is sought.
38. The judgment in Mandera Criminal Case No. E244 of 2023 does not determine ownership in the Petitioner’s favour. On the contrary, the criminal court expressly held that the parties had conflicting claims which ought to be resolved in civil proceedings. The judgment further recorded that the receipts produced by the Petitioner related to Plot No. 2491, while the criminal dispute concerned Plots Nos. 134 and 135.
39. The criminal court’s finding that the Petitioner had an honest claim of right sufficient to exclude criminal liability is not a declaration of ownership. An honest belief in a claim and proof of a legally enforceable proprietary interest are different matters.
40. The 2nd Respondent’s documents are not beyond question either. The certificate of ownership produced in respect of Bypass/2021/135 is dated 17th November 2025, after both the Petition and the present application had been filed. Moreover, although the replying affidavit refers to a certificate of offer, the copy identified as such is not readily apparent among the annexures placed before the Court. These matters will require explanation at the hearing.
41. Those deficiencies in the 2nd Respondent’s case do not, however, relieve the Petitioner of the burden of establishing the threshold for the relief he seeks. An applicant succeeds on the strength of his own prima facie case and not merely on perceived weaknesses in the respondent’s competing claim.
42. Article 40 protects property and legally cognizable interests in property. It does not dispense with the requirement that the person seeking its protection should, at least prima facie, identify the property and the legal or factual basis of the asserted interest.
43. The Supreme Court in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) emphasized that constitutional protection of property depends upon the legality of its acquisition and that where the root of title is challenged, the process through which the alleged right was acquired becomes material. While the present application does not call for a final determination of the root of either party’s claim, the Petitioner was required to place before the Court sufficient material showing an apparently lawful and identifiable interest.
44. The absence of an allocation record and, more decisively, the absence of evidence linking the DUSE plots to Bypass Plots Nos. 134 and 135 leave the Court uncertain as to whether the parties are contesting the same land. The Court cannot issue an enforceable injunction over land whose identity and relationship to the land occupied by the Respondents have not been established.
45. I therefore find that the Petitioner has not demonstrated a prima facie proprietary or possessory right apparently infringed by the Respondents.
Real danger, irreparable harm and the nugatory test
46. Even if the Court were to assume an arguable interest in the properties, the application encounters a further difficulty. The Petitioner states that he was evicted, his structures demolished and his trees uprooted in 2022. He also acknowledges that the 2nd Respondent fenced and took possession of the disputed plots in that year.
47. The Petition was filed in October 2025, approximately three years after the alleged eviction and change of possession. No satisfactory explanation has been offered for that delay.
48. The alleged eviction, demolition, subdivision and dispossession are therefore completed acts. Conservatory and prohibitory orders are principally prospective. They prevent an impending act or preserve an existing state of affairs; they do not ordinarily reverse an event completed several years before the Court was approached.
49. No current building approval, agreement for sale, transfer instrument, notice of further subdivision, photographs of ongoing construction or other evidence has been presented to demonstrate an imminent dealing likely to defeat the Petition. The apprehended danger remains stated in general terms.
50. The Petitioner’s prolonged absence from possession also affects the prayer seeking to restrain interference with his “quiet possession.” On his own evidence, he has not been in possession since 2022. An order framed as protection of his quiet possession would proceed from a factual premise which his own affidavit contradicts.
51. To the extent that such an order would require the Respondents to yield possession or permit the Petitioner to re-enter the land, it would be mandatory in substance. It would substantially grant, at the interlocutory stage, the eviction and restoration relief sought in the Petition.
52. In Kenya Breweries Ltd & another v Washington O. Okeyo [2002] eKLR , the Court of Appeal held that an interlocutory mandatory injunction may issue only in special circumstances and in a clear case where the Court is satisfied that the matter ought to be decided at once. The uncertainty concerning allocation, identification and possession in the present dispute takes it far outside that exceptional category.
53. The Petitioner has not shown that refusal of interim relief will render the Petition nugatory. If he ultimately proves that the 1st Respondent unlawfully deprived him of his land and transferred it to the 2nd Respondent, the Court retains jurisdiction to grant appropriate declaratory, restorative, injunctive or compensatory relief.
54. The alleged destruction of buildings, trees and deprivation of use are also capable of being investigated and, where proved, valued. The Petitioner has not demonstrated a peculiar or presently occurring injury incapable of redress through the final remedies available to the Court.
Status quo, balance of convenience and public interest
55. An order of status quo preserves the state of affairs existing when the Court intervenes. It does not create a new state of affairs or transfer possession from one party to another under the guise of preservation.
56. On the Petitioner’s own account, the 2nd Respondent has been in possession of Plots Nos. 134 and 135 since 2022 and has fenced them. Consequently, the status quo is not the Petitioner’s possession. The orders as framed would therefore not merely preserve the prevailing situation; some of them would alter it or give the impression that the Court has preliminarily endorsed the Petitioner’s claim to ownership and possession.
57. The balance of convenience does not favour wide-ranging orders over six DUSE plots and twelve alleged resultant plots whose physical and legal relationship has not been demonstrated. Such orders would create uncertainty in land administration and could restrain dealings with properties not proved to form part of the subject matter.
58. The public interest lies in ensuring that contested claims to land are determined fairly on credible allocation, survey and land administration records. It does not favour the issuance of interlocutory orders whose subject matter cannot presently be identified with sufficient precision.
59. Having failed to establish a prima facie case, a real and imminent danger of constitutional prejudice, irreparable harm or a likelihood that the Petition will be rendered nugatory, the Petitioner has not met the threshold for either conservatory or interlocutory injunctive relief.
60. For the same reasons, the prayer for an order of status quo cannot independently succeed. A status quo order is not a fallback remedy available whenever the requirements for an injunction or conservatory order have not been met. Its grant must still be supported by an identifiable subject matter and a demonstrated necessity for preservation.
G. Disposition
61. In consequence,
i) The Notice of Motion dated 14th October 2025 lacks merit and is hereby dismissed.
ii) Given that the Petition remains pending and the parties’ competing claims to the properties are yet to be conclusively determined, the costs of the application shall abide the outcome of the Petition.
It is so ordered.
DATED, SIGNED AND DELIVERED AT GARISSA THIS 30TH DAY OF JULY, 2026.
DR. OMONDI R. OWINO, FCIArb
JUDGE ENVIRONMENT AND LAND COURT
DELIVERED VIRTUALLY ON THE TEAMS PLATFORM
IN THE PRESENCE OF:
Ms Asuma h/b for Mutembei for the Applicants
Ms Masibo for the 1st and 2nd Respondents
Mr Dabar Mohamed (Court Assistant)
1. The Court is called upon to determine whether, before the competing claims to the suit properties are subjected to trial, the Petitioner has established a sufficient legal and evidential basis for restraining the Respondents from dealing with the properties. Interim relief preserves an identifiable right or subject matter; it cannot be founded upon uncertainty as to the property, the right asserted, or the harm said to be imminent.
2. By a Notice of Motion dated 14th October 2025, the Petitioner seeks, principally, conservatory and injunctive orders restraining the Respondents, their servants, agents and employees from entering upon, constructing on, cultivating, selling, transferring, fencing, fixing beacons upon or otherwise interfering with Plots Nos. DUSE 2481, 2482, 2483, 2484, 2485 and 2491 situated in Barwaqo area, Mandera County.
3. The Petitioner also seeks orders protecting his alleged quiet possession, ownership and use of the properties pending determination of the Petition, together with orders maintaining the status quo by prohibiting construction or development upon them.
4. The application is expressed to be brought under, among other provisions, Order 40 Rules 1 and 2 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution. It is supported by the Petitioner’s affidavit sworn on 14th October 2025.
5. The 2nd Respondent opposed the application by way of her replying affidavit, sworn on 29th January 2026, whereas the 1st Respondent did not oppose the application. The parties subsequently filed written submissions, which the Court has considered together with the Petition, the application, the affidavits and the documents annexed thereto.
B. The Petitioner’s case
6. The Petitioner asserts that he is the lawful owner of Plots Nos. DUSE 2481, 2482, 2483, 2484, 2485 and 2491. He states that each plot measures 100 by 100 and that the six plots occupy approximately two acres.
7. According to him, he acquired the properties during a demarcation and allocation exercise undertaken in 2007. He states that he paid rates to the then Town Council of Mandera and took possession of the properties while they were vacant and bushy.
8. He claims to have occupied the land peacefully between 2007 and 2022, during which period he allegedly constructed temporary buildings, established his home and planted trees.
9. The Petitioner avers that in 2022 the 1st Respondent evicted him on the representation that the land was required for the construction of a bypass road. He contends that although the road was subsequently constructed, it did not pass through or affect his properties.
10. He alleges that instead of restoring the properties to him, the 1st Respondent subdivided the land into twelve plots, including Plots Nos. 130, 131, 134, 135, 142, 143, 145, 146, 147, 148, 149 and 150. He further alleges that part of the land, comprising Plots Nos. 134 and 135, was allocated or sold to the 2nd Respondent.
11. The Petitioner states that the 2nd Respondent fenced part of the land and caused his arrest and prosecution when he attempted to assert his rights over it. He relies on the outcome of the criminal proceedings, in which the criminal court considered that the parties’ competing claims to ownership were better resolved in civil proceedings.
12. To support his claim, the Petitioner produced several receipts issued by the former Town Council of Mandera, a sketch said to show the location of his plots, proceedings and a judgment from the criminal cases, correspondence concerning his brother’s land and a demand letter.
13. In his submissions, the Petitioner contends that the receipts and sketch map constitute sufficient evidence of his ownership. He argues that his eviction rendered him and his family homeless and that continued occupation and development by the Respondents will cause him irreparable loss.
14. Relying on Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & others [2016] eKLR , the Petitioner submits that he has demonstrated a prima facie case, the danger of prejudice and the likelihood that the Petition will be rendered nugatory unless the properties are preserved.
C. The Respondents’ case
15. The 2nd Respondent disputes the Petitioner’s ownership, possession and alleged eviction. She contends that the Petitioner has not produced an allotment letter, lease, title document, survey plan, registry record, beacon certificate or any other document capable of establishing a proprietary interest in the land.
16. She points out that the receipts relied upon cover only a limited period and do not, by themselves, establish an allocation or continuous occupation between 2007 and 2022.
17. The 2nd Respondent further contends that no eviction notice, demolition notice, compulsory acquisition notice, development approval, photograph or other record has been produced to substantiate the alleged eviction, demolition and developments on the land.
18. Her case is that the disputed land formed part of public land lawfully subdivided by the 1st Respondent. She states that Plots Nos. 134 and 135 were allocated to her in 2021.
19. In support of her claim, she produced a certificate of ownership for Bypass/2021/135 dated 17th November 2025 and a letter from the County Director of Land Administration confirming that Plots Nos. 134 and 135 at Barwaqo Bypass had been allocated to her.
20. The 2nd Respondent submits that the Petitioner has not satisfied the threshold for conservatory relief identified in Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & others [2016] eKLR . She argues that he has demonstrated neither a prima facie case, a real danger of prejudice, the likelihood that the Petition will be rendered nugatory, nor any public interest warranting preservation of the disputed properties.
21. Relying on Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KLR 125 , the 2nd Respondent contends that a prima facie case requires evidence of an apparently existing right which has been infringed. In her view, the receipts and informal sketch produced by the Petitioner neither establish a proprietary interest nor connect the DUSE plots to Bypass Plots Nos. 134 and 135.
22. On irreparable injury, the 2nd Respondent relies on Kenya Airline Pilots Association v Kenya Airways PLC; Central Organization of Trade Unions (Interested Party) [2020] eKLR and Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR . She submits that the apprehended injury must be real, substantial and incapable of adequate compensation by damages, whereas the Petitioner’s alleged loss remains speculative and, if ultimately proved, capable of valuation.
23. Lastly, citing Paul Gitonga Wanjau v Gathuthis Tea Factory Company Ltd & 2 others [2016] eKLR , the 2nd Respondent argues that the balance of convenience requires the Court to compare the respective prejudice likely to be suffered by the parties. She maintains that she has been in possession since 2022 pursuant to an allocation by the 1st Respondent and that the orders sought would disturb, rather than preserve, the prevailing state of affairs.
D. Issue for determination
22. The single issue for determination is whether the Petitioner has satisfied the threshold for the grant of conservatory, interlocutory injunctive or status quo orders pending determination of the Petition.
E. Applicable legal principles
23. Although the application employs the expressions “conservatory order” and “injunction” interchangeably, the two remedies are conceptually distinct. A conservatory order is a constitutional public-law remedy intended to preserve the subject matter and uphold constitutional values pending determination of a constitutional dispute. An interlocutory injunction ordinarily protects an identified private right against actual or threatened infringement.
24. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR , the Supreme Court explained that conservatory orders are granted upon the inherent merit of the case, taking into account the public interest, constitutional values, the proportionate magnitudes and priority levels attributable to the relevant causes.
25. Similarly, in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR , the Supreme Court emphasized that conservatory relief calls for consideration of the arguability of the case, the public interest and the need to preserve the substratum of the proceedings. Conservatory orders are therefore not granted merely because a constitutional provision has been invoked.
26. At the interlocutory stage, the applicant must demonstrate a prima facie constitutional grievance and a real danger that, unless the order is granted, he will suffer prejudice or the Petition will be rendered nugatory. The prejudice must be actual, imminent and demonstrable; it cannot rest on speculation.
27. Where an interlocutory injunction is sought, the applicable test remains that stated in Giella v Cassman Brown & Co. Ltd [1973] EA 358 : the applicant must establish a prima facie case with a probability of success; demonstrate that he stands to suffer injury which cannot adequately be compensated by damages; and, where the Court remains in doubt, show that the balance of convenience favours the grant of relief.
28. In Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR , the Court of Appeal explained that a prima facie case is more than an arguable case. The evidence must disclose an apparently existing right which has been infringed and calls for an answer from the opposite party.
29. The three requirements governing interlocutory injunctions are distinct and sequential. As the Court of Appeal held in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR , once an applicant fails to establish a prima facie case, the Court need not proceed to examine irreparable injury or the balance of convenience. Where all the requirements are considered, each must nevertheless be independently satisfied.
30. At this stage, the Court is not required to determine the contested ownership conclusively. It must avoid making definitive findings that may prejudice the trial. Nevertheless, the Court must examine the material sufficiently to determine whether the applicant has identified an apparently enforceable right and the property to which that right attaches.
F. Analysis and determination
Whether a prima facie case has been established
31. The foundation of the application is the Petitioner’s assertion that Plots Nos. DUSE 2481, 2482, 2483, 2484, 2485 and 2491 were allocated to him in 2007. The documents placed before the Court do not, however, disclose the allocation process through which the alleged interest was created.
32. No allotment letter, allocation minutes, register of allottees, survey record, part development plan, beacon certificate, lease or other record from the allocating authority has been produced. The Petitioner states that an officer referred to as “DLASO” demarcated the properties for him, but no report, correspondence or affidavit from that officer has been presented.
33. The receipts produced by the Petitioner may constitute evidence that certain payments were made to the former Town Council of Mandera. Payment of rates or other municipal charges does not, without evidence of the underlying allocation, necessarily confer ownership. The receipts are not a substitute for proof that the allocating authority identified and lawfully allocated the particular land to the Petitioner.
34. More significantly, the material before the Court does not establish the geographical relationship between the Petitioner’s Plots Nos. DUSE 2481, 2482, 2483, 2484, 2485 and 2491 and Bypass Plots Nos. 134 and 135 occupied by the 2nd Respondent.
35. The Petitioner alleges that the six DUSE plots were subdivided into twelve new plots, including Plots Nos. 134 and 135. That assertion required, at the minimum, survey, planning or cadastral evidence showing the original plots, the subdivision exercise and the resultant parcels. No such evidence was produced.
36. The sketch relied upon by the Petitioner is not demonstrated to be an approved survey or planning record. There is no evidence identifying its author, the authority under which it was prepared, its coordinates, scale, relation to the bypass subdivision or its approval by the relevant land administration office.
37. The description and acreage of the alleged properties also remain uncertain. The Petitioner states that each of the six plots measures 100 by 100, without specifying the unit of measurement. He simultaneously describes their combined area as approximately 0.08 hectares and as two acres. Those measurements are not equivalent. This internal inconsistency reinforces the uncertainty surrounding the identity and extent of the land for which protection is sought.
38. The judgment in Mandera Criminal Case No. E244 of 2023 does not determine ownership in the Petitioner’s favour. On the contrary, the criminal court expressly held that the parties had conflicting claims which ought to be resolved in civil proceedings. The judgment further recorded that the receipts produced by the Petitioner related to Plot No. 2491, while the criminal dispute concerned Plots Nos. 134 and 135.
39. The criminal court’s finding that the Petitioner had an honest claim of right sufficient to exclude criminal liability is not a declaration of ownership. An honest belief in a claim and proof of a legally enforceable proprietary interest are different matters.
40. The 2nd Respondent’s documents are not beyond question either. The certificate of ownership produced in respect of Bypass/2021/135 is dated 17th November 2025, after both the Petition and the present application had been filed. Moreover, although the replying affidavit refers to a certificate of offer, the copy identified as such is not readily apparent among the annexures placed before the Court. These matters will require explanation at the hearing.
41. Those deficiencies in the 2nd Respondent’s case do not, however, relieve the Petitioner of the burden of establishing the threshold for the relief he seeks. An applicant succeeds on the strength of his own prima facie case and not merely on perceived weaknesses in the respondent’s competing claim.
42. Article 40 protects property and legally cognizable interests in property. It does not dispense with the requirement that the person seeking its protection should, at least prima facie, identify the property and the legal or factual basis of the asserted interest.
43. The Supreme Court in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) emphasized that constitutional protection of property depends upon the legality of its acquisition and that where the root of title is challenged, the process through which the alleged right was acquired becomes material. While the present application does not call for a final determination of the root of either party’s claim, the Petitioner was required to place before the Court sufficient material showing an apparently lawful and identifiable interest.
44. The absence of an allocation record and, more decisively, the absence of evidence linking the DUSE plots to Bypass Plots Nos. 134 and 135 leave the Court uncertain as to whether the parties are contesting the same land. The Court cannot issue an enforceable injunction over land whose identity and relationship to the land occupied by the Respondents have not been established.
45. I therefore find that the Petitioner has not demonstrated a prima facie proprietary or possessory right apparently infringed by the Respondents.
Real danger, irreparable harm and the nugatory test
46. Even if the Court were to assume an arguable interest in the properties, the application encounters a further difficulty. The Petitioner states that he was evicted, his structures demolished and his trees uprooted in 2022. He also acknowledges that the 2nd Respondent fenced and took possession of the disputed plots in that year.
47. The Petition was filed in October 2025, approximately three years after the alleged eviction and change of possession. No satisfactory explanation has been offered for that delay.
48. The alleged eviction, demolition, subdivision and dispossession are therefore completed acts. Conservatory and prohibitory orders are principally prospective. They prevent an impending act or preserve an existing state of affairs; they do not ordinarily reverse an event completed several years before the Court was approached.
49. No current building approval, agreement for sale, transfer instrument, notice of further subdivision, photographs of ongoing construction or other evidence has been presented to demonstrate an imminent dealing likely to defeat the Petition. The apprehended danger remains stated in general terms.
50. The Petitioner’s prolonged absence from possession also affects the prayer seeking to restrain interference with his “quiet possession.” On his own evidence, he has not been in possession since 2022. An order framed as protection of his quiet possession would proceed from a factual premise which his own affidavit contradicts.
51. To the extent that such an order would require the Respondents to yield possession or permit the Petitioner to re-enter the land, it would be mandatory in substance. It would substantially grant, at the interlocutory stage, the eviction and restoration relief sought in the Petition.
52. In Kenya Breweries Ltd & another v Washington O. Okeyo [2002] eKLR , the Court of Appeal held that an interlocutory mandatory injunction may issue only in special circumstances and in a clear case where the Court is satisfied that the matter ought to be decided at once. The uncertainty concerning allocation, identification and possession in the present dispute takes it far outside that exceptional category.
53. The Petitioner has not shown that refusal of interim relief will render the Petition nugatory. If he ultimately proves that the 1st Respondent unlawfully deprived him of his land and transferred it to the 2nd Respondent, the Court retains jurisdiction to grant appropriate declaratory, restorative, injunctive or compensatory relief.
54. The alleged destruction of buildings, trees and deprivation of use are also capable of being investigated and, where proved, valued. The Petitioner has not demonstrated a peculiar or presently occurring injury incapable of redress through the final remedies available to the Court.
Status quo, balance of convenience and public interest
55. An order of status quo preserves the state of affairs existing when the Court intervenes. It does not create a new state of affairs or transfer possession from one party to another under the guise of preservation.
56. On the Petitioner’s own account, the 2nd Respondent has been in possession of Plots Nos. 134 and 135 since 2022 and has fenced them. Consequently, the status quo is not the Petitioner’s possession. The orders as framed would therefore not merely preserve the prevailing situation; some of them would alter it or give the impression that the Court has preliminarily endorsed the Petitioner’s claim to ownership and possession.
57. The balance of convenience does not favour wide-ranging orders over six DUSE plots and twelve alleged resultant plots whose physical and legal relationship has not been demonstrated. Such orders would create uncertainty in land administration and could restrain dealings with properties not proved to form part of the subject matter.
58. The public interest lies in ensuring that contested claims to land are determined fairly on credible allocation, survey and land administration records. It does not favour the issuance of interlocutory orders whose subject matter cannot presently be identified with sufficient precision.
59. Having failed to establish a prima facie case, a real and imminent danger of constitutional prejudice, irreparable harm or a likelihood that the Petition will be rendered nugatory, the Petitioner has not met the threshold for either conservatory or interlocutory injunctive relief.
60. For the same reasons, the prayer for an order of status quo cannot independently succeed. A status quo order is not a fallback remedy available whenever the requirements for an injunction or conservatory order have not been met. Its grant must still be supported by an identifiable subject matter and a demonstrated necessity for preservation.
G. Disposition
61. In consequence,
i) The Notice of Motion dated 14th October 2025 lacks merit and is hereby dismissed.
ii) Given that the Petition remains pending and the parties’ competing claims to the properties are yet to be conclusively determined, the costs of the application shall abide the outcome of the Petition.
It is so ordered.
DATED, SIGNED AND DELIVERED AT GARISSA THIS 30TH DAY OF JULY, 2026.
DR. OMONDI R. OWINO, FCIArb
JUDGE ENVIRONMENT AND LAND COURT
DELIVERED VIRTUALLY ON THE TEAMS PLATFORM
IN THE PRESENCE OF:
Ms Asuma h/b for Mutembei for the Applicants
Ms Masibo for the 1st and 2nd Respondents
Mr Dabar Mohamed (Court Assistant)