Background
The Plaintiffs/Applicants moved this Court by a Notice of Motion dated 28th July 2025, brought under certificate of urgency, seeking temporary injunctive reliefs restraining the Defendant/Respondent, his agents or persons acting on his instructions from entering, trespassing upon, or otherwise interfering with the Plaintiffs’ quiet possession of land parcel No. E. BUKUSU/S. KANDUYI/3444, measuring approximately 0.2 hectares, pending the hearing and determination of the application and the suit.
The application is supported by affidavits sworn by the 1st Plaintiff on his own behalf and on behalf of the 2nd Plaintiff. The Defendant opposed the application through a replying affidavit sworn on 25th September 2025. With leave of Court, the Plaintiffs filed a supplementary affidavit dated 11th December 2025. Both parties filed written submissions which this Court has carefully considered.
Plaintiffs’ Case
The Plaintiffs’ case, in summary, is that they are the joint registered proprietors of parcel No. E. BUKUSU/S. KANDUYI/3444, having acquired the same by purchase in the year 2003. They contend that on 4th July 2025, the Defendant, without any colour of right, mobilized goons who forcefully entered the suit land and destroyed fences, cut down trees and banana plantations, and demolished structures including a latrine and perimeter wall. The incident was reported at Bungoma Police Station under OB No. 21/4/7/2025.
It is further deposed that a meeting was convened before the area Chief on 5th July 2025, attended by both parties, at which the Defendant allegedly admitted having instructed the goons and a resolution was reached that the status quo be maintained pending determination of the dispute. Despite this, the Defendant is said to have continued trespassing on the land on several occasions, most recently on 22nd and 25th July 2025, to burn fallen trees for charcoal for sale.
The Plaintiffs assert that unless restrained, the Defendant’s actions will occasion irreparable harm through continued destruction, insecurity, and deprivation of their constitutional and statutory right to peaceful enjoyment of property.
Defendant’s Case
The Defendant disputes the Plaintiffs’ claims and contends that the application is founded on misrepresentation and material non-disclosure. He avers that the Plaintiffs have encroached on his land, being L.R. No. E. BUKUSU/S. KANDUYI/15, and that their title emanates from a subdivision whose mutation forms, when properly interpreted, demonstrate such encroachment.
The Defendant relies heavily on court orders issued in Bungoma High Court Civil Appeal No. 94 of 1999 and Bungoma ELC No. 262 of 2013, as well as a report by the Bungoma County Surveyor dated 31st March 2021, to argue that he was merely implementing lawful court orders and protecting his proprietary interests. He further invokes the equitable doctrines of laches and clean hands, asserting that the Plaintiffs are undeserving of injunctive relief.
Issues for Determination
From the pleadings, affidavits, and submissions, the following issues arise for determination:
1. Whether the Plaintiffs have satisfied the legal threshold for grant of temporary injunctive relief.
2. Whether the Plaintiffs’ conduct disentitles them to equitable relief under the doctrines of laches and clean hands.
Applicable Law and Principles
The principles governing the grant of interlocutory injunctions in Kenya are settled. An applicant must establish:
1. A prima facie case with a probability of success;
2. That they stand to suffer irreparable harm which cannot be adequately compensated by an award of damages; and
3. If the Court is in doubt, the application is determined on a balance of convenience.
These principles, articulated in Giella v Cassman Brown & Co. Ltd and refined in subsequent jurisprudence, are applied sequentially.
Comparative jurisprudence from common law jurisdictions such as England, Uganda, and India similarly underscores that interlocutory injunctions serve to preserve property and maintain the status quo pending trial, particularly where ownership is prima facie demonstrated and there is evidence of threatened or continuing trespass.
Analysis
(a) Prima Facie Case
The Plaintiffs have exhibited a copy of a title deed showing that they are the registered proprietors of parcel No. E. BUKUSU/S. KANDUYI/3444. Under Section 26(1) of the Land Registration Act, 2012, a certificate of title is prima facie evidence of ownership and is indefeasible unless challenged on grounds of fraud, misrepresentation, or illegality to which the proprietor is proved to be a party.
At this interlocutory stage, the Defendant has not demonstrated, through cogent evidence, that the Plaintiffs’ title falls within the statutory exceptions. The court orders and survey report relied upon by the Defendant do not expressly mention parcel No. E. BUKUSU/S. KANDUYI/3444, nor do they show that the Plaintiffs were parties to those proceedings. The Plaintiffs’ assertion that their land originated from parcel No. E. BUKUSU/S. KANDUYI/2929, and not from the Defendant’s parcel, raises serious triable issues which can only be conclusively determined at the hearing of the main suit.
On the material placed before this Court, I am satisfied that the Plaintiffs have established a prima facie case with a probability of success.
(b) Irreparable Harm
The Plaintiffs have demonstrated, through photographic evidence and police reports, that the suit land has been subjected to destruction of trees, crops, and structures. Land, by its nature, is unique, and the right to quiet and peaceful possession is a core incident of ownership. Continued trespass and destruction cannot be adequately remedied by damages alone, particularly where the acts complained of are ongoing and threaten to alter the character of the land permanently.
I am persuaded that the Plaintiffs stand to suffer irreparable harm if the orders sought are not granted.
(c) Balance of Convenience
Even if this Court were in doubt, the balance of convenience tilts in favour of maintaining the status quo. The Plaintiffs are the registered proprietors and are in possession. Granting the injunction merely restrains the Defendant from interfering with the land pending trial. On the other hand, refusing the injunction would expose the Plaintiffs to continued acts of alleged trespass and destruction, thereby rendering the suit nugatory.
(d) Clean Hands and Laches
While equity demands that a party seeking equitable relief must come with clean hands, allegations of encroachment and bad faith raised by the Defendant remain contested. Such issues require full interrogation at trial and cannot, at this interlocutory stage, be resolved definitively against the Plaintiffs. Mere allegations, without conclusive proof, are insufficient to deny an otherwise deserving party interim protection.
Disposition
In the premises, and for the foregoing reasons, I find that the Plaintiffs/Applicants have satisfied the threshold for grant of interlocutory injunctive relief.
Accordingly, the Notice of Motion dated 28th July 2025 is allowed in the following terms:
1. A temporary injunction is hereby issued restraining the Defendant/Respondent, whether by himself, his agents, servants, or any other person acting under his authority, from entering, trespassing upon, interfering with, or in any manner whatsoever dealing with land parcel No. E. BUKUSU/S. KANDUYI/3444, pending the hearing and determination of the main suit
2. Costs of the application shall abide the outcome of the suit.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT EMBU THIS 26TH DAY OF FEBRUARY, 2026.
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HON. E. C. CHERONO
JEDGE
ENVIRONMENT AND LAND COURT
In the presence of;
1. M/S Masengeli for the Plaintiff/Applicant.
2. Defendant/Advocate-absent.
3. Diana Kemboi C/A.