Ngugi v Muchiku & 8 others

2. The Plainti/Applicant, John Njoroge Ngugi, seeks the following orders that pending the hearing and determination of this suit an interim injunctive order be issued restraining the 1st to 5th Defendants/ Respondents, either by themselves, their agents, servants, or any other persons acting on their behalf, from trespassing into, destroying the Plainti's crops, installations, and beacons, and from occupying, constructing, erecting walls, dumping construction materials, wasting, excavating, forcefully entering, or selling/transferring the properties marked as Parcel Nos. Ngong/Ngong/109478, Ngong/ Ngong/109482, Ngong/Ngong/109419, and Ngong/Ngong/109484 (hereinafter referred to as "the suit properties"); further that the 5th Defendant/Respondent be directed to enforce this order.. 3. The Application is supported by the Adavit of the Applicant, John Njoroge Ngugi, sworn on 9th September 2025, along with the annexures marked OOM-01 to OOM-09. 4. The Applicant avers that he is the legal and absolute owner of the suit properties, having purchased the original land (formerly Ngong/Ngong/88) from one Mr. Pakisidi Ole Dakisorre on 1st December 1993. He subsequently eected a transfer and subdivision of the land into the four current distinct parcels. 5. It is the Applicant’s case that despite holding valid title deeds, the 1st through 4th Respondents have embarked on illegal acts to dispossess him of his land. He further contends that the said Respondents have engaged the services of the 5th Respondent (Bualo Hills Security Limited) to intimidate him, destroy his installations, and lock him out of the property, thereby necessitating the instant application for injunctive relief. 6. The Application is opposed by the Defendants. In a Replying Adavit sworn on 5th October 2025, the 2nd Defendant, Daniel Kuria Njuguna, deposed on his own behalf and that of the other Defendants regarding the history and ownership of the suit land. 7. The Respondents contend that the entire suit is founded on fraud and that the Plainti’s allegations are untrue and intended to further a scheme to fraudulently acquire the suit land. The 2nd Defendant avers that upon realizing the Plainti’s latest maneuvers, Funguo Enterprises Limited lodged a detailed complaint with the Cabinet Secretary, Ministry of Lands. Consequently, it is deposed that the Ministry has commenced the process of cancelling the Plainti’s titles, which the Respondents characterize as fraudulent subdivisions. 8. Further, the Respondents aver that the Plainti has a history of criminal conduct regarding the suit property. The 2nd Defendant deposes that the Plainti has been convicted twice over his fraudulent involvement with the suit land in Criminal Case No. 445 of 2004 and Criminal Case No. 297 of 2012. The Respondents argue that at no time during those criminal proceedings did the Plainti insinuate ownership of the land as he now alleges. 9. Regarding the true ownership of the land, the Respondents assert that the land belongs to Funguo Enterprises Limited and its sister company, Kawangware Cinema Limited. The 2nd Defendant explains that the Plainti, having been an employee of these companies, is merely taking advantage of a long-drawn legal battle between the two companies (ELC No. 57 of 2017, formerly HCC No. 223 of 2010), which has since been determined by the Court. 10. The Respondents admit that the Plainti has been locked out of the land but argue that this was rightfully done by the 5th Defendant (Bualo Hills Security Limited), who was employed by the true owners to safeguard the property against intrusion. 11. Finally, the Respondents submit that the Application fails to meet the mandatory requisites for the grant of an injunction as established in law. They contend that the Plainti has failed to establish a https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18601/eng@2025-12-18 2

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prima facie case with a probability of success. They assert that the Plainti will not suer substantial loss that cannot be adequately compensated by way of damages and that the balance of convenience tilts in favor of maintaining the status quo, which involves the ownership and possession by Funguo Enterprises Limited. 12. The Application is further opposed by the 9th Defendant, Funguo Enterprises Limited, who was enjoined in this suit as such on its own application. In a Replying Adavit sworn on 15th October 2025 by its Director, Kenneth Kaburu Mugambi, the 9th Defendant vehemently denies the Plainti's claims. 13. The 9th Defendant asserts that it is the legal and rightful owner of the property known as Ngong/ Ngong/88, having purchased the same from one Livingstone Nkurruna in the year 1992. The deponent avers that the Plainti has never been the owner of the suit property; rather, the Plainti was an employee of the 9th Defendant, specically hired as a caretaker/guard to look after the property. 14. It is the 9th Defendant’s case that the Plainti was dismissed from his employment due to gross misconduct, which involved stealing from the company. The adavit highlights that the Plainti’s alleged fraudulent conduct led to him being charged in Criminal Case No. 445 of 2004 and Criminal Case No. 297 of 2012 for oenses related to stealing and forgery of documents regarding the suit land. 15. The 9th Defendant contends that the titles held by the Plainti are products of fraud and forgery, obtained while he was purporting to act as a caretaker. They further rely on the judgment in ELC Case No. 57 of 2017, which they state settled the ownership dispute between Funguo Enterprises Limited and Kawangware Cinema Limited, arming the 9th Defendant's ownership. 16. Consequently, the 9th Defendant urges the Court to dismiss the Application, arguing that the Plainti has approached the Court with "unclean hands," has failed to establish a prima facie case with a probability of success, and that the balance of convenience tilts in favor of the 9th Defendant, who claims to have always been in possession of the land. 17. In response to the allegations raised by the Defendants, the Applicant, John Njoroge Ngugi, swore a Further Replying Adavit on 24th October 2025. He vigorously contests the depositions made by the 2nd Defendant and the 9th Defendant. 18. The Applicant challenges the capacity of the 2nd Defendant, terming him a stranger to the suit property who holds no authority to swear adavits on behalf of Funguo Enterprises Limited. He further denies ever being an employee, servant, or agent of either Funguo Enterprises Limited or Kawangware Cinema Limited, thereby dismissing the narrative that he was a mere caretaker who stole from his employer. 19. On the critical issue of criminal conduct, the Applicant expressly denies the Respondents' claims that he was convicted. He avers that while he was indeed charged in Criminal Case No. 445 of 2004 and Criminal Case No. 297 of 2012, he was acquitted in both instances. He maintains that these charges were malicious and do not negate his proprietary rights. 20. Regarding the issue of fraud and the previous litigation, the Applicant contends that the validity of his titles was not negated by the court in ELC Case No. 57 of 2017. Contrary to the Respondents' interpretation, he avers that the Court in that matter acknowledged his registered ownership. He reiterates that he lawfully purchased the land from the original owner, Pakisidi Ole Dakisorre, and that his title deeds are genuine and indefeasible. 21. Consequently, the Applicant maintains that the actions of the Defendants in locking him out and deploying the 5th Defendant (Bualo Hills Security) are illegal acts of trespass. He reiterates that he https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18601/eng@2025-12-18 3

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has met the threshold for the grant of a temporary injunction and prays that the Court allows his application as pleaded. Analysis and Determination 22. I have considered the Notice of Motion dated 9th September 2025, the Supporting Adavit, the Replying Adavits by the Defendants, and the Applicant's Further Replying Adavit. I have also considered the rival submissions and the annexures presented by the parties. 23. The singular issue for determination in this application is whether the Applicant, John Njoroge Ngugi, has established a case to warrant the grant of a temporary injunction pending the hearing and determination of the main suit. 24. The principles governing the grant of temporary injunctions are well settled in the locus classicus case of Giella vs. Cassman Brown & Co. Ltd (1973) EA 358, where the Court of Appeal established the following conditions: a. The Applicant must establish a prima facie case with a probability of success. b. The Applicant must demonstrate that he will suer irreparable injury which cannot be adequately compensated by an award of damages. c. If the Court is in doubt, it will decide the case on the balance of convenience. 25. A prima facie case was dened in Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others (2003) KLR 125 as a case in 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. 26. The Applicant bases his claim on his registration as the proprietor of Parcel Nos. Ngong/ Ngong/109478, 109482, 109419, and 109484. He has annexed copies of title deeds which, under Section 26 of the Land Registration Act, 2012, constitute prima facie evidence that the person named as proprietor is the absolute and indefeasible owner. 27. However, this right is not absolute. Section 26(1)(a) and (b) of the same Act provide that a title may be challenged on grounds of fraud or misrepresentation to which the proprietor is proved to be a party, or where the title has been acquired illegally, unprocedurally, or through a corrupt scheme. 28. In rebuttal, the Defendants; particularly the 9th Defendant, Funguo Enterprises Limited, have raised weighty allegations of fraud. They contend that the Applicant was merely a caretaker/guard employed by them and that he fraudulently engineered the subdivision and transfer of the suit property (originally Ngong/Ngong/88) to himself. They have alluded to criminal proceedings (Criminal Case Nos. 445 of 2004 and 297 of 2012) and prior litigation (ELC Case No. 57 of 2017). 29. While the Applicant vehemently denies these claims and asserts he was acquitted, the existence of these deep-seated factual disputes; regarding the root of the title (Pakisidi Ole Dakisorre vs. Livingstone Nkurruna) and the nature of the Applicant's relationship with the suit land cannot be resolved at this interlocutory stage. As held in Vimal Shah vs. Consolidated Bank of Kenya Ltd (2008) eKLR, the Court at this stage cannot conduct a mini-trial or make denitive ndings on contested facts. 30. Nevertheless, the heavy cloud of alleged fraud and the admission by the Applicant that he is currently locked out of the premises weaken his probability of success at this preliminary stage. A prima facie case is not merely an arguable case; it must be a case that is likely to succeed. Where the root of the title https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18601/eng@2025-12-18 4

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is hotly contested with evidence of prior employment and criminal charges, the presumption of title is signicantly challenged. 31. The second limb requires the Applicant to show that damages would not be an adequate remedy. The property is land. Courts have generally held that land is unique and its loss may not be adequately compensated by damages. 32. The Applicant avers that the Defendants are destroying crops, installations, and beacons. If the Applicant eventually succeeds in the main suit, the restoration of the land to its original state might be dicult. However, the Defendants argue they are merely protecting their property. 33. While the loss of land is usually considered irreparable, the Applicant must also show that the injury is imminent and that the Defendants are acting unlawfully. Given the dispute on ownership, it is unclear at this stage whether the Defendants' presence constitutes "destruction" or "occupation by the rightful owner." 34. Since the facts regarding ownership and the validity of the titles are contested, the Court must rely on the balance of convenience. This entails weighing the harm to the Applicant if the injunction is refused against the harm to the Respondents if it is granted. 35. The Applicant admits in his pleadings that he has been locked out of the suit properties and that the 5th Defendant (Security Company) is in control of the site. The Defendants act on the instruction of the 9th Defendant, who claims possession. 36. To grant the orders sought, specically to restrain the Defendants from "occupying" the land would be tantamount to issuing a ‘mandatory injunction’ at an interlocutory stage. It would eectively evict the Defendants and put the Applicant in possession before the trial is heard. 37. Disturbing the prevailing status quo would cause greater injustice if the Defendants eventually prove they are the true owners. The balance of convenience, therefore, tilts in favor of maintaining the status quo pending the determination of the suit. 38. Consequently, this court nds that the Notice of Motion application dated 9th September 2025 is devoid of merit and is therefore dismissed. Costs shall be in the cause. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 18TH DAY OF DECEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Njugi for the 9th Defendant also h/b for Mr. Wokabi for the 2nd &3rd Defendants Ms. Akonya h/b for Mr. Oyagi for the Plainti/Applicant N/A by the 1st & the 4th – 8th Defendants Court Assistant Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18601/eng@2025-12-18 5

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