Zomo & another v Mutava & another (Environment and Land Case E019 of 2025) [2025] KEELC 8199 (KLR)

6. That a mandatory order be issued compelling the 1st Defendant to provide full disclosure on how the Plaintifi’s share was included in his title and subsequently charged to the 2nd Defendant. 7. That pending the hearing and determination of this application as well as the main suit herein, this honourable court be pleased to issue an order compelling the Land Registrar Makueni to register a restriction on the land parcel number Makueni/Kako/xxxx . 8. That the costs of and incidental to this application be borne by the Defendants/Respondents. 2. The 1st Applicant is a sister in law to the 2nd Applicant. The 2nd Applicant and his brother Kimatu Mang’ea are sons of Mang’ea Kangau who has since died and her estate is being administered by the 2nd Applicant. The late Mang’ea Kang’au was the registered owner of LR No. Makueni/Kako/2xxx . 3. The 2nd Applicant’s brother Kimatu Mang’ea was entitled to 9 acres from his mother’s land. Before the process of succession, Kimatu Mang’ea sold 3 acres to the 1st Applicant and 5 acres to the 1st Defendant/ Respondent. When the 1st Respondent processed title, he processed one title which included his 5 acres, 3 acres for 1st Applicant and 1 acre which was due to Kimatu Mang’ea. 4. The 1st Respondent then proceeded to charge his title which is Makueni/Kako xxxx to the Agricultural Finance Corporation. It is this charging of the title by the 1st Respondent which made the Applicants to file this suit and apply for injunctive orders. 5. The 1st Respondent opposed the Applicants’ application based on a replying afidavit sworn on 11th July, 2025. The 1st Respondent contends that the Applicants’ suit and application are premature. He states that the 1st Applicant failed to raise money for subdivision of the late Mang’ea Kangau’s land and that during the processing of his title, he include the 3 acres of the 1st Applicant for convenience sake as she prepared herself financially. 6. The 1st Respondent stated that Kimatu Mang’ea gave him his remaining portion as he had already sold 5 acres to him and that through authority of Kimatu Mang’ea he registered title for 8 acres. The 1st Respondent states that he has approached the 1st Applicant severally to have her process subdivision and transfer but the 1st Applicant has been adamant to do so. He states that though he charged Makueni/Kako/xxxx (suit property) to the 2nd Respondent, the charge has been discharged. 7. The 2nd Respondent opposed the Applicants’ application based on a replying afidavit sworn on 1st July, 2025. The 2nd Respondent states that on 3rd December, 2021, the 1st Respondent was advanced a loan of Kshs.5,000,000/= which was to be repaid within 3 years. The 1st Respondent cleared the loan and the suit property was discharged. The 2nd Respondent stated that it accepted the title to the suit property after due diligence showed that the suit property was registered in the 1st Respondent’s name. As the suit property has been discharged, the 2nd Respondent has no interest in the suit property. 8. In a further afidavit sworn on 20th May, 2025, the Applicants state that as the 1st Respondent has admitted that he included her 3 acres in the title, there is need to grant the injunction. The Applicants state that the 1st Respondent has shown that he has taken a loan using the suit property as security and nothing will stop him from taking further loans or selling the property. 9. Parties were directed to file written submission. The Applicants filed their submissions dated 8th August, 2025. The 1st Respondent filed his submissions dated 2nd October, 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8199/eng@2025-11-27 2

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10. The Applicants submitted that they had established a prima facie case with probability of success and that they had met the other conditions as set out in the case of Giella –vs- Cassman Brown & Co. Ltd (1973) EA 358. 11. The Applicants further submitted that the court has power under Section 68 (1) of the Land Registration Act to order the Land Registrar to register a restriction against the title. They relied on the case of Wambui Njoroge –vs- Simon Mwaura (2020) eKLR where the court held that where the property is at risk of fraudulent sale and competing claims exist, a retraction ought to be entered to preserve the substratum of the dispute. 12. The 1st Respondent submitted that he is a wrong party to be sued. He states that the person who ought to have been sued is the estate of Kimatu Mang’ea. The 1st Respondent therefore submits that the Applicants have no prima facie case to warrant issuance of an injunctive order. The 1st Respondent relied on the case of Giella (Supra) and Nguruman Ltd –vs- Jan Bonde Nielsen & 2 Others (2014) eKLR. 13. The 1st Respondent further submits that as there has been a discharge of the charge registered against the title, the orders sought have been rendered moot. 14. I have considered the Applicants’ application as well as the opposition to the same by the Respondents. I have also considered the submissions by the parties. There are two issues which emerge for determination. The first is whether the Applicants have met the threshold for grant of an injunction. The second is whether a restriction ought to be ordered against the title. 15. The principles for grant of an injunction were set out in the Giella case (supra). First an Applicant has to demonstrate a prima facie with probability of success. Second, an Applicant has to demonstrate that he/she is likely to sufier damage which will not be compensated in damages. Third if the court is in doubt, it will decide the application on a balance of convenience. 16. In the instant case, Kimatu Mang’ea sold 3 acres to the 1st Applicant and 5 acres to the 1st Respondent. The Applicants stated that Kimatu Mang’ea was entitled to 9 acres. This position was not refuted. The 1st Respondent admitted that when he was processing title, he included the portion of the 1st Applicant and that he intended to transfer the land back when the 1st Applicant had the finances to do so. 17. It is apparent that Kimatu Mang’ea had not received his share through succession. The land was still in the name of Mang’ea Kangau. The 1st Respondent has deponed that his 5 acres and the 1st Applicant’s share was to be 8 acres and that is what he processed title for. A copy of search carried out by the Applicants shows that the suit property is 3.66 hectares which is equivalent to 9.44 acres. It is therefore clear that apart from the 8 acres which is inclusive of the 1st Respondent’s 5 acres and the 1st Applicant’s share, there is an additional 1 acre which is over and above the 8 acres. This one acre belongs to the estate of Mang’ea Kangau. It is therefore clear that the Applicants have demonstrated that they have a prima facie case with probability of success. 18. The 1st Applicant has built her house on the suit property. If the 1st Respondent was to sell the land, the matrimonial home of the 1st Applicant will go and this may not be compensated in damages. I am in no doubt that the Applicants have demonstrated a prima facie case and I need not consider the application on a balance of convenience. In any case, the Applicants are in possession of the portion claimed and the balance of convenience tilts in their favour. 19. The suit property has already been discharged by the 2nd Respondent. Though the discharge came after this application had been filed, the application against the 2nd Respondent has been overtaken by events. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8199/eng@2025-11-27 3

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20. On the second issue, it is clear that the Applicants are asking the court to compel the Land Registrar to register a restriction against the title. Where there is need for registration of a restriction such an application has to be made to the Land Registrar or the Land Registrar can do it on his own motion to prevent improper dealings. The court is granted powers to make an order of inhibition under Section 68 of the Land Registration Act. As it has been demonstrated that the 1st Respondent has in the past taken a loan using the title to the suit property as security, there is need to inhibit the suit property. 21. I therefore find that the Applicants are entitled to the following orders: a. An injunction order is hereby issued restraining the 1st Defendant, either by himself, his agents, servants, or any other person acting under his instructions from selling, transferring, further charging or in any way disposing land parcel No. Makueni/Kako/xxxx pending the hearing and determination of the main suit herein. b. An order is hereby given inhibiting any dealings relating to disposal or charging of LR No. Makueni/Kako/xxxx until this suit is heard and determined. c. The costs of this application shall be borne by the 1st Respondent. d. This application is dismissed as against the 2nd Respondent with costs to be borne by the Applicants. It is so ordered. .................................................. HON. E. O. OBAGA JUDGE RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 27TH DAY OF NOVEMBER, 2025. IN THE PRESENCE OF: Mr. Munyasya for 1st Defendant/Respondent. Mr. Nyingi for Plaintifis/Applicants. Ms. Muturia for 2nd Defendant/Applicant. Court assistant – Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8199/eng@2025-11-27 4

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