Liban v Mainko & Mainko (Vendors and Administrators – of the Estate of Jeremiah Mainko Kidienye - Deceased ) & another (Environment and Land Case 128 of 2025) [2025] KEELC 7607 (KLR)

3. The urgency of the application was explained in the certificate dated 29th September 2025 signed by Orlando M. Briton, the Advocate for the plaintifi/applicant. 4. Upon the court considering the certificate ex parte on 3rd October 2025, it issued a temporary injunction order with a view to preserving the subject matter awaiting inter partes hearing which was set down for the 29th October 2025. 5. On the 29th October 2025, the Advocate for the plaintifi, Mr. Orlando informed the court that he had been served with a lengthy response by the 2nd defendant/respondent alongside an application dated 27th October 2025. He sought for time to file a further afidavit in response to the new issues raised in the response by the 2nd defendant/respondent as well as reply to the application dated 27th October 2025 by the 2nd defendant/respondent. He sought for 21 days and an extension of the interim orders granted on 3rd October 2025 awaiting the determination of the application. 6. The 1st defendant/respondent on his part sought 14 days to reply to both applications by the plaintifi and the 2nd defendant. 7. On his part, the 2nd defendant through his advocate, Mr. Ng’ang’a while not in principle opposed to the granting of time to the plaintifi to file the supplementary afidavit and reply to his application, vehemently opposed the extension of the interim orders. In his opposition, the 2nd defendant went into great details explaining the history of the dispute between him and the 1st defendant and by extension the plaintifi. He particularly submitted that the plaintifi was guilty of failure to disclose that there was a judgment in favour of the 2nd defendant by a court of concurrent jurisdiction in Kajiado ELC 64 of 2020 (Esther N. Mainko –vs- Edward Njoroge & 2 others) in respect of the same subject matter of this suit. He further explained that the plaintifi had also filed a suit before the Kajiado Chief Magistrate’s Court in respect to the subject matter of this suit which had been dismissed. 8. The plaintifi’s advocate responded in kind insisting that his client was not a party in Kajiado ELC 64 OF 2020. He was therefore entitled to have his day in court. The plaintifi, as submitted by Mr. Orlando was the registered proprietor of the suit property. 9. The argument by both sides went into the merits of the pending applications. I will refrain from going into the depths of the arguments in order not to prejudice any side before hearing and considering the two pending applications on the merits. 10. One issue that is not in contention is that every party in this matter has the right to file a response to either of the applications. The plaintifi definitely has the right to respond to any new issues arising from the lengthy response by the 2nd defendant to his application dated 29th September 2025 and to respond to the 2nd defendant’s application dated 27th October 2025 seeking to strike out his suit. Likewise, the 2nd defendant is entitled to corresponding leave to file a supplementary afidavit to any new issue that may arise from the response by the plaintifi. The 1st defendant too being a party in this case is entitled an opportunity to express his position in regard to the applications. 11. The contention that necessitated the filing of this ruling is whether the interim orders granted ex parte should be extended pending the determination of the applications. 12. The object of an interlocutory injunction as explained by the Court of Appeal in the case of Rockland Kenya Limited –vs- Elliot White Miller (1994) eKLR, is to protect the plaintifi against injury by violation of his legal right for which he cannot adequately be compensated in damages recoverable in the action if the matter in dispute were resolved in his favour at the trial. However, his need for such protection must be weighed against the corresponding need of the defendant to be protected against https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7607/eng@2025-11-04 2

page 2 of 4

injury resulting from his having been prevented from exercising his own legal right for which he could not be adequately compensated under the plaintifi’s undertaking in damages if the subject matter of the trial was decided in his favour. 13. What is before me is a rather unique case where the 2nd defendant has a judgment in his favour by a court of competent and concurrent jurisdiction whereas the plaintifi pleads that he was not a party to the suit giving rise to the judgment in favour of the 2nd defendant. One of the critical issues that this court must determine is whether the plaintifi has a right to institute a fresh suit in view of the judgment in favour of the 2nd defendant over the same subject matter. That indeed is the substance of the 2nd defendant’s application dated 27th October 2025. The court prior to making the determination must afiord each party an opportunity to present his or her arguments. The wheels of justice turn slowly but grind exceedingly fine. 14. Awaiting the determination on that weighty issue, the court has responsibility to keep things in status quo, till that question is determined. The court in doing so must carry out the delicate balancing act as explained in the Rockland Kenya Limited case (supra). 15. The court in Kajiado ELC 64 of 2020 in determining the case in favour of the 2nd defendant ostensibly made a finding that the 2nd defendant was in continuous uninterrupted possession of the suit property. That is one of the key ingredients for a finding in favour of adverse possession. 16. This court is obligated under the provisions of the evidence Act to take cognizance of judgments by other competent courts of law. With that in mind, this court will endeavour to preserve the title of the suit property without interrupting the status quo as established and determined by the court of concurrent jurisdiction in Kajiado ELC No. 64 of 2020. The interim orders issued on 29th September 2025 shall be extended but varied as follows; “ That a temporary injunction order be and is hereby issued restraining the defendants by themselves, their agents and or any other person acting in their names, and or on their behalf from alienating, subdividing, selling, charging or in any other such manner dealing with the parcel of land known as Kajiado/Kitengela/19745 pending the hearing and determination of the plaintifi’s application dated 29th September 2025and the 2nd defendant’s application dated 27th October 2025.” 17. That said, the court proceeds to give the following directions; a. The 1st defendant is granted leave of seven (7) days from the date of this ruling to respond to both the plaintifi’s and the 2nd defendant’s applications dated 29th September 2025 and 27th October 2025 respectively. b. The plaintifi has leave to file a supplementary afidavit in response to any new issues raised in the replying afidavit of the 2nd defendant and a replying afidavit to the 2nd defendant’s application dated 27th October 2025 in fourteen (14) days from the date of this ruling. c. The 2nd defendant will have corresponding leave to file and serve a supplementary afidavit in response to any new raised in the plaintifi’s and 1st defendants’ replying afidavits, if need be, in fourteen (14) days after service. d. Time shall be of essence. e. The two applications shall be heard orally and concurrently on 16th December 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7607/eng@2025-11-04 3

page 3 of 4

f. The parties shall file and serve the authorities they wish to rely on in support of their oral submissions at least three (3) days before the hearing date. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 4TH DAY OF NOVEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Orlando for the Plaintifi Ms. Mphande h/b for Mr. Macharia for the 1st Defendant Mr. Isahi alongside Mr. Ng’ang’a for the 2nd Defendant Court Assistant: Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7607/eng@2025-11-04 4

page 4 of 4