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ELCPartially Allowed· [2026] KEELC 4129 (KLR)

Barke Limited & another v Berner & 2 others (Environment and Land Case E039 of 2026) [2026] KEELC 4129 (KLR)

Environment and Land Court
16 June 2026
TMT. Murigi
3,497 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Nairobi court froze all construction and sale activity on a disputed Nairobi West property pending trial, but refused to evict the person living on it.

What this practically means

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Executive summary

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By a Notice of Motion dated 30th January 2026 under the Civil Procedure Act, the Environment and Land Court Act and Order 40 of the Civil Procedure Rules, the 1st Plaintiff sought a temporary injunction restraining the 1st Defendant from trespassing on, occupying, constructing on or dealing with L.R. No. 37/245/5, Nairobi West, plus police enforcement and costs. The Plaintiff claimed to be the registered proprietor, having purchased the property for Kshs. 35,000,000 from the beneficiaries of the Estate of Florence Njambi, with transfer effected via a court order in 2016 and registration in 2024. The 1st Defendant opposed, asserting the property was transmitted to beneficiaries of her late mother's estate in specific shares, that her consent was never obtained, no consideration was paid to her, and that she occupies and developed the premises lawfully under a renovation agreement with her mother. The sole issue was whether the threshold for a temporary injunction was met. Applying Giella v Cassman Brown, Mrao, Nguruman and Kogo, the Court found a prima facie case on the certificate of title; held that ongoing construction on disputed land could cause harm not compensable by damages; and found the balance of convenience favoured preserving the status quo. The Court granted preservatory orders restraining further construction, alienation or dealing with the property pending trial, but expressly declined to make the orders operate as an eviction, and limited any police role to maintaining peace. Costs were ordered to abide the outcome of the suit.

Key legal issues

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01

Prima facie case

Holding

A registered certificate of title plus a sale agreement, transfer documents and a court order authorizing execution sufficed at the interlocutory stage

Reasoning

The Court held it need not resolve contested validity issues at interlocutory stage; competing proprietary claims notwithstanding, the Applicant's documentary evidence of ownership established a genuine and arguable case warranting explanation from the 1st Defendant.

p. 6
02

Irreparable harm

Holding

Ongoing construction on disputed land may cause prejudice not adequately compensable by damages

Reasoning

Photographs and correspondence showed ongoing construction. Continued development could alter the property's character and complicate enforcement of final orders, hence irreparable harm was demonstrated.

p. 6
03

Balance of convenience

Holding

Favours preserving the status quo - restraining further construction and dealing, but not evicting the occupying Defendant

Reasoning

Restraining occupation would effectively be an eviction before trial without tested evidence; conversely allowing construction and alienation would risk waste and alter the subject of the suit. Preservation of the current state balances both hardships.

p. 7

Legal principles established

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  • Interlocutory courts should not make final findings on contested title or beneficial-interest issues reserved for trial
  • Construction on disputed land may cause prejudice not adequately compensable in damages

Court orders

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  1. 1.Pending the hearing and determination of the suit, the 1st Defendant is restrained from undertaking any further construction, demolition, alteration, extension or development on L.R. No. 37/245/5, Nairobi West
  2. 2.Pending the hearing and determination of the suit, the 1st Defendant is restrained from selling, transferring, charging, leasing, licensing, letting, alienating or otherwise dealing with L.R. No. 37/245/5 in a manner that may alter its legal status
  3. 3.The orders granted shall not operate as an eviction order against the 1st Defendant nor authorize the Plaintiffs to remove her from occupation before the substantive dispute is heard and determined
  4. 4.The parties shall preserve the suit property in its present state pending the hearing and determination of the suit
  5. 5.Costs of the application shall abide with the outcome of the suit

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A, 63(c) & (e)
  • Environment and Land Court ActSections 13 and 19(2)
  • Civil Procedure RulesOrder 40 Rules 1(a), 1(b), 2a & 10(b)
  • Constitution of KenyaArticles 40 and 27
  • Land Registration ActSection 26

Cases cited (4)

  • Giella vs Cassman Brown & Co. Ltd
    1973 EA 358
  • Mrao Ltd v First American Bank of Kenya and 2 others
    (2003) KLR 125
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
Jurisdiction invoked
Sections 13 and 19(2) of the Environment and Land Court Act; Sections 1, 1A, 1B, 3, 3A, 63(c) & (e) of the Civil Procedure Act; Order 40 Rules 1(a), 2a & 10(b) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Barke Limited & another v Berner & 2 others (Environment and Land Case E039 of 2026) [2026] KEELC 4129 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4129/eng@2026-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.