Introduction
1. Before this court is an application dated 8th April 2025 stated to be brought under Sections 1A, 1B, 3, 3A & 63C of the Civil Procedure Act, Sections 40 and 13 of the Environment and Land Court Act, Order 40 rule 1, 2 & 9 and Order 51 rule 1 &2 of the Civil Procedure rules 2010.
2. The applicants seek the following orders;
a) An order of temporary injunction restraining the defendants/respondents jointly and severally by themselves, their workers, agents and/or representatives from entering, trespassing, alienating, and/or interfering with part of the land known as Elgeyo Marakwet/Upper Muskut/424 (hereinafter referred to as the suit property) measuring approximately 26 acres pending hearing and determination of the application and the suit.
b) That costs be provided for.
3. The application is premised on the grounds on its face and supporting affidavit of Stanley Kiptoo sworn on 8th April 2025 where the grounds are reiterated. He deposes that he is from Shokwei clan Keiyo (Kalenjin) subtribe and in possession of the suit property together with the other plaintiffs/applicants (hereinafter referred to as the applicants) who are from Kobil, Teriki, Moi, Talai, Tungo, and Soti clan; that in 1969, their forefathers surrendered approximately 26 acres to the 1st defendant/1st respondent (herein after referred to as the 1st respondent) to create a shopping centre next to the road now known as Kabokbok Centre; that the suit property is the only remaining ancestral land inherited by the applicants from their forefathers which was originally 52 acres; that the respondents have jointly and severally been secretly demarcating the remaining 26 acres and are in the process of evicting the applicants therefrom; that if the orders sought are not granted, the applicants stand to suffer great loss and damage.
4. The 2nd defendant/2nd respondent (herein after referred as the 2nd respondent), opposed the application vide grounds of opposition dated 24th April 2025 that;
1. The application is misconceived, bad in Law, and an abuse of the court process.
2. The plaintiffs/ applicants have failed to meet the threshold for the grant of injunctive relief as set out in the case of Giella v Cassman Brown [1973] RA 358.
3. The plaintiffs/ applicants have not established a prima case with a probability of success, nor demonstrated irreparable harm and the balance of convenience tilts in favour of the preservation of the current status quo.
4. The application is based on mere allegations and speculative fears, which are not supported by any admissible or credible evidence.
5. The orders sought, are ambiguous, vague, overboard and incapable of enforcement, thus making them inappropriate for injunctive relief.
6. The application is fatally defective for want of specificity as it fails to clearly identify or delineate the portion of land to which the injunction is to apply, making the orders sought incapable of enforcement and prejudicial to the respondents’ rights.
7. The plaintiffs/ applicants have not specified the exact portion or identifiable part of land parcel Elgeyo Marakwet/Upper Muskut/ 424 that is subject to the injunctive relief sought.
8. Without a clear delineation, any injunctive order issued would create confusion, invite multiple interpretations and duly infringe upon my lawful and constitutional rights to property under Article 40 of the Constitution.
9. Granting the orders sought would occasion undue prejudice to the respondent and would unjustly interfere with their lawful and legitimate rights and interests.
10. That the applicants have not demonstrated any urgency or necessity for interim protection, thereby failing to justify the invocation of this court’s discretionary jurisdiction
11. The application does not disclose any sufficient cause or special circumstances warranting the issuance of the injunctive orders.
12. The application dated 8th April, 2025 is misconceived, speculative, without merit and an abuse of the court process and the same should be dismissed with costs.
5. The 1st respondent opposed the application vide a replying affidavit sworn by Josephat Kerich, the town administrator for the 1st respondent, dated and sworn on 27th May, 2025. He avers that at no time were the applicants granted ownership of the suit property; that the suit property measuring 21.5 HA was reserved as public land particularly for Kabokbok Trading Centre and was registered under Elgeyo Marakwet County Council in 1982 during adjudication whose functions and assets were transferred to the County Government of Elgeyo Marakwet upon devolution; that there is a local physical and land use development plan underway to enable the County Government establish Kabokbok centre; that 621 residents of Lower Muskut were allocated land within Lower Muskut adjudication area including the applicants; that the suit property measuring 21.5 hectares exclusively belongs to the 1st respondent and is not available for alienation as it is public land reserved for Kabokbok trading centre; that the applicants actions in encroaching on the suit property are illegal and they have interfered with the activities of the 1st respondent who is in actual occupation of the suit property; that the applicants suit lacks merit, is baseless, legally defective and is made in bad faith.
6. Pursuant to directions given on 29th May 2025, the application was disposed off by way of written submissions.
SUBMISSIONS
Applicants submissions
7. The applicants filed their submissions on 20th June 2025, gave a background of the case and identified the issue for determination to be whether the application has met the threshold for grant of temporary injunction orders.
8. It is submitted that the applicants are in possession and use of the suit property; that they are apprehensive that should the 1st respondent carry out the intended development plan on the entire parcel of land without giving them an opportunity to be heard and present evidence, they stand to be evicted from the suit property and will have nowhere to go. Further, that there is danger of the suit property being disposed off to their detriment. They relied on Order 40 rule 1 of the Civil Procedure Rules and the cases of Giella v Cassman Brown & Co. Ltd [1973] E.A, Nguruman Limited v Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eklr and Robert Mugo wa Karanja v EcoBank (Kenya) Limited & Another [2019]
1st Respondent’s submissions
9. The 1st respondent filed submissions dated 22nd June 2025 on 24th June 2025. They gave a background of the case and identified two issues for determination. These are;
i) Whether the applicants have met the requirements for granting of an injunction and
ii) Who should bear costs of the application.
10. On the first issue, it is submitted that to be granted an order for temporary injunction the applicants must satisfy the conditions set out in Giella v Cassman Brown & Co. (supra) which are;
i) Prima facie case with probability of success at trial
ii) Irreparable injury which would not be adequately compensated in damages
iii) The balance of convenience tilts to the applicant
11. On whether the applicants have established a prima facie case, it is submitted that the suit property is registered in the name of the 1st defendant; that the plaintiffs are seeking an injunction against the lawful proprietor without justifiable cause and without pleading any particulars of fraud showing the 1st respondent irregularly acquired title to the suit property. Further, that the applicants have failed to demonstrate how they own the suit property and that they are in possession. They relied on the case of Mrao v First American Bank of Kenya Limited & 2 Others [2003] EKLR
12. On whether the applicants stand to suffer irreparable injury which would not adequately be compensated in damages, they relied on the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] EKLR, and submitted that the 1st respondent solely owns the suit property which was registered in 1982; that the applicants case is premised on speculation as there are no documents being processed by the 1st defendant; that the applicants and other residents were allocated land within Lower Muskat adjudication area; that since the applicants were never allocated the suit property, they shall not suffer any irreparable injury if the orders sought are not granted.
13. On balance of convenience, it is submitted that it tilts in favour of the respondent as the lawful proprietor of the suit property.
14. It is submitted that Section 26 of the Land Registration Act provides that a certificate of title issued by the Registrar upon registration is considered prima facie evidence of absolute and indefeasible ownership subject to any encumbrances, easements, restrictions and conditions noted on the certificate. However, this title can be challenged if it was obtained by way of fraud or misrepresentation to which the person named as proprietor is proven to be a party, or if the certificate was acquired illegally, un procedurally, or through a corrupt scheme.
Analysis and Determination
15. I have considered the application in light of the pleadings, grounds of opposition, respective affidavits and the written submissions. l find the issue for determination to be whether the applicants have met the threshold for grant of an order of injunction.
16. The principles applicable in an application for injunction were laid down in the celebrated case of Giella Vs Cassman Brown & Co Ltd (supra) as follows: -
i) The applicant must show a prima facie case with a probability of success.
ii) An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages
iii) If the court is in doubt, it will decide an application on a balance of convenience.
17. In the case of Nguruman Limited Vs Jan Bonde Nielsen & 2 Others, CA No. 77 of 2012, the court of appeal stated as follows about the principles set out in Giella Vs Cassman Brown & Co Ltd (supra), “…. these are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”
18. A prima facie case was defined by the Court of Appeal in Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others (2003) eKLR as follows; “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.”
Whether the applicants have established a prima facie case.
19. It is not in dispute that the 1st respondent is the registered proprietor of land parcel Elgeyo Marakwet/Lower Muskut/424 measuring 21.5 Hectares. The land was reserved as public land for establishment of Kabokbok Trading Centre during land adjudication and was registered under the Elgeyo Marakwet County Council in 1982 whose functions and assets were transferred to the County Government of Elgeyo Marakwet upon devolution. To prove ownership, the 1st respondent annexed copies of green card and certificate of official search marked JK1 and JK2(a).
20. The applicants on the other hand state that they have been in possession and use of land parcel Elgeyo Marakwet/Upper Muskut/ 424 measuring approximately 26 acres for a long period of time which they inherited from their forefathers.
21. The issue of ownership can only be determined in a full trial where parties will have the opportunity to call evidence and have the same challenged by way of cross examination. At interlocutory stage, the court is not required to determine the issues which will be canvassed at the trial nor make any definitive conclusion on the matters that are in controversy as held in the case of Edwin Kamau Muniu Vs Barclays Bank of Kenya Ltd NBI HCCC No 1118 of 2002, thus; “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.”
22. In their pleadings, the applicants refer to land parcel Elgeyo Marakwet/Upper Muskut/ 424 measuring approximately 26 acres. The land registered in the name of the 1st defendant is described as Elgeyo Marakwet/ Lower Muskut/ 424 measuring approximately 21.5 HA. It is not clear whether the two parcels of land are one and the same or are distinct. Non the less, even if lower and upper Muskat/424 refer to the same parcel of land or are distinct, the applicants’ have failed to specify the exact portion or identifiable part of that land that is subject to the injunctive relief sought. They have also not attached any evidence by way of photographs to demonstrate that they are in actual possession and are using the portion of land they claim.
23. I agree with the 2nd respondent that failure to clearly identify or delineate the portion of land to which the injunction is to apply, may cause confusion and make the orders sought incapable of enforcement.
24. For the above reasons, I find the applicants have failed to establish a prima facie case. Having failed to establish a prima facie case, it would be immaterial for me to consider the other pillars governing the grant of an injunction enunciated in the case of Giella Vs Cassman Brown, (Supra).
25. The upshot of the foregoing is that application dated 8th April, 2023 is found to be devoid of merit and is hereby dismissed. Costs will be in the cause.
Dated, signed and delivered virtually at Kabarnet this 14th day of July, 2025.
In the presence of ;
Ms. Cherop for the Plaintiffs/Applicants
N/A for the 1st Defendant/1st respondent
Ms. Odeyo for 2nd Defendant/2nd respondent
N/A for the Interested Party
Court Asst. Ian.