Musango & 3 others v General & 3 others (Environment and Land Case E012 of 2023) [2025] KEELC 8012 (KLR)

transferring, alienating and/or interfering in any way with the suit premises, land parcel title No. Makindu/Kalii/1303 pending hearing and determination of this suit. 5. That the oficer commanding station (OCS) Makindu police station does ensure compliance. 6. That costs of this application be provided for. Background 2. The dispute in this matter relates to LR No. Makindu/Kalii/1303 (suit property). The suit property has been subject of many court cases pitting Musango Mwandau father to the Applicants who is now deceased and Kasio Siva husband of 1st Defendant/Respondent who is now deceased. The late Kasio Siva was father to the 2nd Defendant who has since passed away. 3. In 1971, Nziu court granted the suit property to Kasio Siva and eviction orders were issued against Musango Mwandau. During the adjudication process, the suit property was recorded in the name of Musango Mwandau. Kasio Siva appealed the decision of the District Arbitration Board and to the Land Adjudication Oficer. The Land Adjudication Oficer vide objection No. 13 of 1990 granted the suit property to Kasio Siva. Musango Mwandau then appealed against the decision of the Land Adjudication Oficer to the Minister. 4. Both Musango Mwandau and Kasio Siva died before the appeal to the Minister could be decided. However before the death of Kasio Siva and while the appeal by Musango Mwandau was pending, Kasio Siva obtained title to the suit property. 5. The decision of the Minister was rendered in 2015 whereby the appeal by Musango Mwandau was dismissed. 6. The Applicants who are sons of Musango Mwandau have now brought a suit in which they are seeking nullification of title which is in the name of Kasio Siva. It is on this basis that they are seeking injunctive orders against the Respondents. Applicant’s Contention 7. The Applicants contend that they are in possession of the suit property and that he 1st Respondent is in the process of selling portions of the suit property to third parties. Respondents’ Contention 8. The 1st Respondents opposed the Applicants’ application based on a replying afidavit sworn on 20th November, 2024. The 1st Respondent contend that the Applicants’ application is an abuse of the process of court in that they had filed judicial review No. 1 of 2017, Makindu Senior principal Magistrates Court Miscellaneous Application No. 15 of 2022 and now the present application. The 1st Respondent accuses the Applicant of forum shopping. 9. The 1st Respondent states that no orders can be given against the 2nd Respondent who has since passed away and that the Applicants’ father had been evicted from the suit property in the 1970’s. She states that a brother to the Applicant had been charged in Makindu Criminal Case No. 1356 of 2017 for trespass and that she had contracted one of the Applicants’ brothers to deliver fencing materials to the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8012/eng@2025-11-20 2

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Applicants’ Further Contention 10. In a further afidavit sworn by the Applicants on 27th January, 2025, the Applicants state that indeed they had filed Makindu Senior Principal Magistrates court Miscellaneous No. 15 of 2022 but this application was struck out and that is why they moved to this court. The Applicants state that the verdict of the Minister was afiected by the premature processing of the title by Kasio Siva. Parties Submissions 11. The parties were directed to file written submissions dated 11th March, 2025. The 1st Respondent filed her submissions dated 21st October, 2025. 12. The Applicants submitted that they had met the conditions for grant of a temporary injunction as set out in the Giella –vs- Cassman Brown & Co. Ltd (1973) EA 358. 13. The Applicants submitted that they are the ones in possession and if third parties were allowed to come into the suit property this will be tantamount to eviction which will cause them irreparable loss. They submit that the status quo should be maintained by the court granting the injunction. They relied on the case of Mary Arviza & Okoth Mondoz –vs- The Attorney General of Kenya & the Secretary General of East African Community Application No. 10 of 2010. 14. The 1st Respondent submitted that the Applicants had not met the threshold for grant of injunctive orders. They cited the case of Giella (Supra) and Mrao Ltd –vs- First America Bank of Kenya Ltd & 2 Others (2003) eKLR. Analysis and Determination 15. I have carefully considered the Applicants application, the opposition thereto by the 1st Respondent as well as the submissions by the parties. The only issue for determination is whether the Applicants have met the threshold for grant of an injunction. 16. In the case of Giella (Supra), it was held as follows: “ First the 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 sufier irreparable harm which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.” 17. In the case of Mrao Ltd (Supra) a prima facie case was described as follows: “ a prima facie case in a civil application includes but is not confined to a genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”. 18. I have considered the materials placed before me. There is no contention that title to the suit property is in the name of Kasio Siva. There is also no contention that the 1st Respondent’s family is in possession of the suit property. Though the Applicants claim to be in possession as well, the criminal charges against one of their brothers point to the contrary. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8012/eng@2025-11-20 3

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19. The appeal which was pending before the Minister was disposed of in 2015. Though Kasio Siva had already obtained title in his name, the Minister’s decision dismissed the appeal by Musango Mwandau. This being the case, the Applicants have not demonstrated that they have a prima facie case with probability of success. 20. Even if the court were to finally find in favour of the Applicant, the Applicants have not demonstrated that they will sufier injury which will not be compensated in damages. The allegation of sale of third parties was not demonstrated. Disposition 21. Even if the court were to be in any doubt which is not the case, the balance of convenience tilts in favour of the 1st Respondent and her family who are in possession of the suit property. I therefore find no merit in the Applicants’ application which is dismissed with costs to the 1st Respondent. It is so ordered. .............................................. HON. E. O. OBAGA JUDGE RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAM THIS 20TH DAY OF NOVEMBER, 2025. In the presence of: Mr. Muia for Applicants. Mr. Hassan for Respondents. Court assistant – Nelima https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8012/eng@2025-11-20 4

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