Mokaya & 16 others v Emco Billets and Steel Limited; Co-operative Bank of Kenya Limited (Interested Party) (Enviromental and Land Originating Summons E038 of 2025) [2026] KEELC 221 (KLR)

2. The ex parte interlocutory injunctive orders issued by the honourable court in favour of the plaintifis on the 2nd July 2025 be discharged, varied, and or set aside suo moto and the plaintifis application dated 28th June 2025 be struck out summarily 3. The defendant be condemned to bear costs of the application Reply 3. The plaintifi’s in response filed their replying afidavit sworn by Daniel Nyanchoga Mokaya sworn on the 15th October 2025 and further afidavit on the 21st October 2025 denying concealment of facts and insisting that the injunctive orders were necessary as the defendant was in the process of subdividing the suit property which was the substratum of the suit. That the issues raised in the application were irrelevant to warrant the court to set aside the injunctive orders 4. The application was canvassed by way of written submissions with the applicant filing its submissions dated 12th November 2025 whereas the respondent had not filed its submissions as at the time of drafting this opinion. 5. Issues raised in the submissions 1. Whether the interlocutory injunctive orders issued on 2nd July 2025 should be discharged 2. Who should bear the costs? 6. From the issues raised the sole issue for determination is whether the applicant has established valid grounds to set aside the orders of injunction issued on the 2nd July 2025 7. After an order of injunction has been issued, the party subject to the injunction can apply to the Court to vary, discharge or set it aside. Courts have power to discharge, vary or set aside any interlocutory order granted under Order 40. In particular, Order 40 Rule 7 provides that: “ 7. Order for injunction may be discharged, varied, or set aside [Order 40, rule 7] Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.” 8. The above provision does not stipulate the conditions under which an order of injunction may bend ,is dicharged, varied, or set aside. Courts have through case law developed and prescribed the conditions to be considered before an injunction is discharged, varied or set aside. In the case of Ochola Kamili Holding Limited vs Guardian Bank Limited (2018) eKLR for instance, the court stated that:“ The court is alive to the fact that interlocutory injunction, being an equitable remedy, would be discharged upon being shown the person’s conduct with respect to matter pertinent to the suit does not meet the approval of the court which granted the orders which is the subject matter and especially where a party upon getting injunction orders sits on the matter and uses the orders to the prejudice of the opponent. The orders of injunction are mainly intended to preserve the subject matter with a view to have expeditious determination but not to oppress another party nor should an injunction be used to economically oppress the other party, or to deny justfied repayment of outstanding loan. That once such a post injunction behaviour is exposed it would in my view be a ground to discharge an injunction because the order obtained would be an abuse of the purpose for which the injunction was granted. No court would allow its orders to be used to defeat the ends of justice.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/221/eng@2026-01-21 2

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9. To further address the issue at hand, I would place reliance on what was stated by Justice Munyao Sila in Filista Chemaiyo Sosten vs Samson Mutai (2012) eKLR, in which he stated; “ In James Juma Muchemi & Partners Ltd vs Barclays Bank of Kenya & Another (Nairobi HCCC No.339 of 2011 (2012) eKLR, my brother Mabeya J, expressed the view that the jurisdiction under Order 40 Rule 7 was discretionary and like in all other discretions, the same must be exercised judiciously although there are no firm rules of law or practice that have been set down. In Ragui vs Barclays Bank of Kenya (2002) 1 KLR 647, Ringera J stated that: “ It is settled law that if an interlocutory injunction has been obtained by means of misrepresentation or concealment of material facts, the same will on the application of the party aggrieved be discharged”. 10. I hold the view that the discretion under Order 40 Rule 7 ought to be sparingly used so as to avoid a situation where it would appear as if the same is being used as a tool for appeal. This is because before issuing the injunction, the court must have been satisfied that it was necessary to grant the same. If it were not satisfied, the court would not have issued the injunction in the 1st place. However, if the injunction was obtained by concealing facts which if put to the judge in first instance would have afiected his judgment on whether or not to give the injunction, then a court can be inclined to vary or vacate the injunction in light of the new facts. So too if the circumstances of the suit have radically changed so that it is no longer necessary to have the injunction.” 11. The question then left to answer is What then should the court consider when faced with an application for setting aside an injunction? In the case of Atlas Copco Customer Finance AB vs Polarize Enterprises (2016) eKLR, the court distilled the factors that may be considered when faced with a question of discharge, varying or setting aside of an injunction. The court held as follows: “ it is now trite that some of the factors that guide the exercise of the courts' discretion in this area of law are, but not limited to: 12. a. proof that the injunction was obtained by concealment of facts which if presented would have worked against the granting of the injunction; b. a radical change in the circumstances of the suit, such that it is no longer necessary to have the injunction; c. proof that the general conduct of the holder of injunction is such that the court is impelled to discharge the injunction, for instance, where the injunction is being used to intimidate the Defendant or achieve an ulterior purpose; d. proof that the sustenance of the injunction would cause an injustice.” In the present case the applicant avers that the orders were issued on concealment of facts, which if the court knew, would not have granted the orders which have been listed in the application are as below i. That the applicant and the plaintifis had entered into a sale agreement dated 30th January 2025 that sort to regularize the stay on the suit property and hence based on this, there is no way the applicant could go against the agreement they had committed to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/221/eng@2026-01-21 3

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ii. That the subdivision process that the plaintifi wants to prevent to be happened way before the orders of 2nd July 2025 were issued hence there was no event to be restrained as it had happened already. iii. That the plaintifis failed to let the court know that the applicant had a steel factory operating on 26.6774 acres which formed part of the suit property whereas the that the plaintifis claimed possession over45.99 acres and the orders of injunction would prevent the applicants from lawful occupation of their property. iv. That the plaintifi had not met the threshold for claiming adverse possession and hence the orders for the interlocutory injunction were not supported 13. The plaintifis in their replying afidavit dated 15th October 2025 have not controverted the issues as raised above. If anything, the deponent confirms that indeed there is a steel factory on the suit property. The issue of them entering into negotiations through a sale agreement has not been denied either which points out to say that the same is true. 14. The language of the deponent when it comes to the issue of acreage which the claim as in the replying afidavit is dismissive where in fact the issue of acreage is very vital as it points out to the fact that there are two sections on the suit property, one being occupied by the plaintifis and the other by the applicant. The failure to disclose the correct acreage and real position on the ground, can be said to be misleading as court in granting the injunction did so in relation to the whole of the suit property not conscious that it was infringing on the 26.6774 acres legitimately occupied by the applicant. 15. Having submitted as above and being guided by the above listed case laws, I hold the view that indeed there was concealment of facts to the court which if facts had been in the knowledge of the court, the reasoning of the court would be difierent. Conclusion: 16. The upshot of the foregoing is that the applicant’s application is merited and the ex parte interlocutory injunctive orders are hereby set aside. Each party to bear their costs. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST DAY OF JANUARY, 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Omuga for the Applicant. Mr. Okeyo Kevin holding brief for Wanjohi for the Defendant. Mr. Oderi for the Interested Party. Philomena W.Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/221/eng@2026-01-21 4

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