Muthoni v Muriithi (Environment & Land Case E005 of 2024) [2025] KEELC 3034 (KLR)

5. The Plaintifi swore the afidavit in support of the application and attached a copy of a mutation form for Ngandori/Ngovio/5623. He also exhibited copies of the sale agreement dated 9/4/2021, receipt from Co-operative Bank, the title deed for land parcel 6823, an acknowledgement deed dated 30/4/2021, statement from Daima Sacco Ltd and the decree issued in Embu CM ELC Case No. E035 of 2021- Mary Wambugu (Suing as the legal representative of Jane Kori Muriithi v Rosaline Wanjiru Muriithi & 2 others). 6. The Defendant, Rosaline Wanjiru Muriith,i swore the replying afidavit opposing the application and averred that the Plaintifi’s title over the suit land was cancelled for fraud in Embu CM ELC Case No. E035 of 2021 and his counterclaim alleging trespass and seeking a permanent injunction was dismissed. She pointed out that the Plaintifi had not appealed against that judgment. She denied that the Plaintifi was in occupation of the suit land or that he has any interest there. She deposed that it is her and her siblings who are in occupation of the suit land where they reside and cultivate and they stand to sufier great loss and prejudice if restrained from occupying or utilising the land. 7. She was emphatic that the Plaintifi had not demonstrated that he will sufier any irreparable loss and added that the Plaintifi’s prayer for a prohibitory order was misplaced as a prohibitory order cannot be granted at this stage of the proceedings. She added that the Plaintifi is not entitled to an order of injunction since he had failed to give an undertaking to pay damages. She sought to have the application dismissed with costs to her and annexed a copy of the judgment from the Magistrates’ Court case to her afidavit. 8. The court directed the parties to file and exchange written submissions which it has considered. The Plaintifi in his submissions mainly re-stated the background to his case and submitted that unless the orders sought are granted, he stands to sufier irreparable loss and damage thus causing him to remain landless and yet he had been paying for a loan for 3 years now for land which has been taken away. 9. Rosaline Wanjiru Muriithi in her submissions set out the principles for granting an order of injunction as set out in the case of Giella v Cassman Brown & Co. Limited [1973] EA 358. These are, that the applicant has to demonstrate that he has a prima facie case with a probability of success, that they will sufier irreparable loss which cannot be adequately compensated by an award of damages and when the court is in doubt, it will decide the case on a balance of inconvenience. She submitted that the Defendant had not established a prima facie case as he did not appeal against the judgment and decree in Embu CM ELC Case No. E 035 of 2021. Further, that the Defendant was not the registered owner of Ngandori/Ngovio/6823 after his title was cancelled. She contended that Ngandori/Ngovio/6823 does not exist on account of revocation of the resultant subdivisions of the mother title and therefore the Plaintifi does not hold any proprietary rights over the suit land. 10. She further submitted that the Plaintifi had not furnished photographs or any other evidence of the alleged cultivation and developments on the suit land. That the Plaintifi did not demonstrate that the suit land is in danger of being sold or leased or being interfered with. It was her position that the Defendant has not demonstrated the loss he stands to sufier if an injunction is not issued. She urged that the other joint owners who were not parties to this suit would sufier irreparably if an injunction or prohibition were to be registered against the suit land without hearing them first. She also argued that it would amount to gross injustice if an injunction or prohibition were registered against the entire title to Ngandori/Ngovio/5623 when the Plaintifi only claims a portion of 0.1 Ha out of the that land. 11. She maintained that the prejudice the Defendant and the other joint owners of Ngandori/ Ngovio/5623 would sufier if the orders sought were granted was greater than the prejudice the Plaintifi would sufier, if any and so the balance of convenience tilted in favour of the Defendant. She emphasised that the Plaintifi was not the registered owner of the suit land hence he should have issued https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3034/eng@2025-03-20 2

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an undertaking to pay damages in the event the court ultimately decides that a restraining order was not merited. She argued that a prohibitory order is a post judgment order made at the execution stage in terms of Order 22 rule 48 of the Civil Procedure Rules and is not grantable at this stage of the proceedings. Ultimately it was urged that the application should be dismissed. 12. The issue for determination is whether the Plaintifi is entitled to the orders sought. It is not in dispute that the Plaintifi purchased Ngandori/Ngovio/6823 which was resulted from the subdivision of Ngandori/Ngovio/5623, from the Defendant. It is also not in dispute that that title was revoked in Embu CM ELC Case No. E035 of 2021 Mary Wambugi (Suing as the administrator of Jane Kori Muriithi (deceased) v Rosaline Wanjiru Muriithi & Others on allegations of fraud. The court in that case directed that the Plaintifi’s title be revoked and for it to revert to the Plaintifi together with the three other joint owners. The Plaintifi now seeks a temporary injunction to restrain the Defendant from selling, evicting or interfering with land parcel Ngandori/Ngovio/5623. 13. In this court’s view, granting such an order would afiect the rights of the other registered proprietors who are not parties to this suit. The Plaintifi has not demonstrated any imminent risk of the suit land being disposed of or otherwise interfered with in a manner that would prejudice his claim. He merely accuses the Defendant of interfering with the suit land without stating in what manner. He has equally not demonstrated that he is in occupation of the land or that he has made developments on the suit land. 14. The court declines to grant the orders sought in the application dated 23/2/2024. Costs shall be in the cause. DELIVERED VIRTUALLY AT EMBU THIS 20TH DAY OF MARCH 2025. K. BOR JUDGE In the presence of: Ms. Mukami Boore for the Defendant Diana Kemboi- Court Assistant No appearance for the Plaintifi https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3034/eng@2025-03-20 3

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