Nduati (Suing for and on Behalf of Christian Church International (CCI)) v Ndungu (Enviromental and Land Originating Summons E013 of 2023) [2025] KEELC 5588 (KLR)

3. The motion is opposed by the Defendant who has sworn a replying afidavit dated 5-3-2025 in which he replies as follows. Firstly, he has never been a member of the Plaintifi church and his church is called Greystone Christian Church which owns the land and has been in occupation since 1992. Secondly, the Plaintifi has never owned the suit land or occupied it and it is motivated by the fact that Greystone Christian Church is progressing well and it supports 187 children in partnership with compassion International Kenya. The children reside on the land. The church also houses expectant mothers who have been there even before the suit was filed. 4. Counsel for the parties filed written submissions dated 6th May and 18th June 2025 respectively. Both sides are agreed that the single issue for determination is whether the Applicant has proved that it is entitled to an order of injunction as per the principles set out in the case of Giella vs Cassman Brown Co. Ltd [1973] E.A. 5. I have carefully considered the motion in its entirely including the afidavits, the grounds and the written submissions. I note that the case has been pending in Court for over two years. The case was nearing conclusion until the Defendant asked for an adjournment. This is what has delayed the quick conclusion of the case. Had it been finalized, the current application would not have arisen. The afidavit by the Plaintifi dated 27-1-2025 lacks details. It does not state when the alleged digging, constructing and depositing of the materials took place. It should have been more detailed. If it is true that the land is home to 187 children and expectant mothers, it should not be interfered with. The only problem is that those in occupation are the ones delaying the case. 6. The three principles in the case of Giella vs Cassman Brown (Supra) are as follows. For a party to qualify for an order of injunction they must prove, (a) that they have a prima facie case with a probability of success and (b) they stand to sufier substantial loss that cannot be adequately compensated by an award of damages. If the Court is in doubt, it looks at the balance of convenience. Let me not speculate on whether the Plaintifi has established a prima facie case with a probability of success because doing so may prejudice the fair hearing of this case. As for the second ground, I do not think that the Plaintifi stands to sufier substantial loss that cannot be compensated with an award of damages if the orders sought are not allowed. If the Defendants keep on developing the suit land and it is eventually found to belong to the Plaintifi, the Plaintifi will have nothing to lose. Instead it will be a gain. That notwithstanding, I find that the balance of convenience would dictate that there be no construction on the suit land and the Defendants move with speed to conclude this case. Consequently, I will allow the notice of motion dated 27-1-25 in terms of prayer (c). Case to be concluded within a period of one(1) year. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 28TH DAY OF JULY, 2025. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Mwangi Njonjo Plaintifi’s Counsel – Miss Mbugua Defendant’s Counsel – Miss Gachango https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5588/eng@2025-07-28 2

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