Mburu & another v Mwangi (Environment and Land Case E143 of 2024) [2025] KEELC 6387 (KLR)

interfering with the existing land records in relation to the suit premises herein Land Parcel No. Nairobi Block 136/76 f. That the OCS Ruai police station to oversee compliance of this Honourable Court orders. g. That Costs of this application be provided for 2. The application is supported by the afidavit of Harun Mwau in which he depones that the plaintifis are the registered proprietor of Nairobi/Block 136/76 having purchased the same from Embakasi Ranching Company as a non member. He attached a copy of the sale agreement and a copy of the certificate of lease. In addition he attached a letter that was written to the Director Land Administration dated 13th May 2009 confirming that the properties under non member certificates of plot ownership number 034593, 034693, 0354631, 034639 plots number V17685, V17688, V178686, V17887 belonged to the Plaintifis. A certificate of lease was thereafter issued on 1st April, 2019. He alleged that on a routine visit to the land they found that the Defendant was constructing on the land prompting the filing of this suit. 3. The Defendant filed a Replying Afidavit in which he deposes that he is the registered owner of the suit property having purchased the same from Elizabeth Wangechi Mahinda who purchased the property from Nganga Kihara. He insists that plot V17685, V17688, V178686 and V17887 are not the same as plot E234, E234B, E235 and E235B which he purchased from Nganga Kihara. He goes further to recount the process he used to obtain the title documents and questions the authenticity of the documents produced by the Plaintifis. 4. Th court directed that the application be canvassed by way of written submissions. Counsel for the Plaintifi argued that in view of the competing titles the court ought to grant an injunction. On the other hand, counsel for the Defendant submitted that no prima facie case had been proved, neither had the Plaintifi proved that he would sufier damages or that the balance of convenience was in his favour. 5. The only issue the court has to determine is whether to issue an injunction pending the hearing and determination of the suit. 6. Order 40 Rule 1 (a) and (b) of the Civil Procedure Rules provides: “ Where in any suit it is proved by afidavit or otherwise – a. That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or b. That the defendant threatens or intends to remove or dispose of his property in circumstances afiording reasonable probability that the Plaintifi will or may be obstructed or delayed in execution of any decree that may be passed against the defendant in the suit; the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 7. The principles for grant of injunction are well settled by the locus classicus of Giella Vs Cassman Brown & Company Limited [1973] E.A. 358., where the court stated thus: “ First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6387/eng@2025-02-06 2

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sufier irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 8. In Nguruman Limited Vs Jan Bonde Nielsen & 2 the Court of Appeal had this to say on prima facie case ; “ The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion” 9. Both parties have presented the court with a certificate of lease in their favour. The Plaintifis claim that they purchased the suit property as non- members from Embakasi Ranching Company while the Defendants claim that they purchased the property from a member. It would be improper for the court to make findings on the disputed facts at this interlocutory stage. However it is now settled law that it is not enough to dangle a certificate of title. The court will at the appropriate time consider the root of the title. 10. Given the two competing titles and considering its not possible to make a determination on the issue at this stage, I do not find that a prima facie case has been established. However, there is need to preserve the subject matter. Continued construction on a parcel of land with parallel titles and competing claims can only result in grief to one if not both of the parties. 11. The courts have held that even where the elements for grant of an injunction are not met, the court in the interest of preserving the substratum of the suit can give a status quo order. 12. Justice Murithi J in the case of Mombasa Misc. Civil Application (JR) No.26 of 2010 Republic –vs- The Chairperson Business Premises Rent Tribunal at Mombasa (Bench Mochache) Exparte Baobab Beach Resort (Mombasa Limited) & Monica Clara Schriel sought to draw the distinction and opined: “ In my view, an order to Status quo to be maintained is difierent from an order of injunction both in terms of the principles for grant and the practical efiect of each. While the latter is a substantive equitable remedy granted upon establishment of a right, or at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case. In its efiect, an injunction may compel the doing or restrain the doing of a certain act, such as, respectively, the reinstatement of an evicted tenant or the eviction of the tenant in possession. An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint.” (see in The Matter of an Application By Saifudeen Abdullabhai & 4 Others For Leave To Apply For Judicial Review And For Orders Of Certiorari And Prohibition [2013] eKLR). 13. I find that a status quo is the appropriate order to issue in the instant case. I therefore make the following orders; a. that the status quo obtaining as at 6th February, 2025 shall be maintained pending the hearing and determination of the suit https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6387/eng@2025-02-06 3

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b. For purposes of clarity the status to obtain is that there shall be no new construction with efiect from today. Neither shall there be any transfer, charging, leasing or selling of the suit property. The two title documents to remain as they are. c. Costs shall abide the outcome of the main suit. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 6TH DAY OF FEBRUARY 2025 JUDY OMANGE JUDGE In the presence of: No appearance for parties Court Assistant Meryline https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6387/eng@2025-02-06 4

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