Karuri & another v Kenya Defence Forces & 3 others (Environment and Land Case E220 of 2025) [2026] KEELC 312 (KLR)

3. c. That this honourable court be pleased to grant temporary injunction restraining the defendants or any of them, by themselves, their servants, agents or any person claiming through them or otherwise from entering, undertaking construction thereon, subdividing or dealing with the suit property known as IR N0 52592 LR N0 209/11396 located at Eastleigh next to Moi Airbase in any manner whatsoever pending hearing and determination of this suit d. Costs of the application e. Any other reliefs The application was premised on grounds as in the supporting afidavit sworn by Nancy Wangechi Karuri where she deponed that they were beneficial owners of the suit property which borders the 1st defendant’s property. That the 1st defendant objected to the applicants seeking to construct a wall adjacent to the 1st defendant which location was part of their suit property, and pointed a difierent area to construct the same which the applicant avers, they obliged. They however submit that the 2nd defendant trespassed on the same location on approval of the 4th defendant, hence apprehensive that the defendants intend to take the suit property unlawfully. Response 4. The 1st defendant responded via a replying afidavit dated 19th May 2025 and sworn by one major Patrick Maina Ngatia on behalf of the 1st and 3rd respondents 5. He deponed that the 1st respondent had not in any way interfered or dealt with the suit property. That the 1st defendant is operating on its own property having acquired ownership through a certificate of title issued to the national treasury as a trustee for the 1st respondent. 6. That the applicants being adjacent to the 1st defendant that was operating an air base were required by law to maintain a safe distance and observe height limitations for safety concerns 7. The 2nd respondent filed a replying afidavit dated 10th June 2025 where he deponed that the applicant had failed to demonstrate how he was connected to the construction of the toilets on the suit property rather the same was a project of a third party being Madhiwa Highway CBO.He deponed that the construction was done with the knowledge of the 1st respondent who should have been the one to stop the same being that it was a bufier zone 8. The 4th respondent in its replying afidavit dated 14th August 2025 indicated that the applicants and not produced any evidence to point out that the 4th defendant gave approvals to the construction on the suit property hence the claim as against the 4th respondent is unfounded. Applicant’s Submissions 9. Counsel submitted that the applicant had met the condition necessary for issuance of injunctions. That having demonstrated they were the beneficial owners of the suit property, then they had the right to quiet possession which right had been infringed on by the construction which was proof of a prima facie case relying on Mrao Ltd Vs First American Bank of Kenya Ltd & 2 others 10. Counsel submitted that an award of damages could not compensate for the damage that the construction would bring forth https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/312/eng@2026-01-27 2

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2nd respondent’s submissions 11. He reiterated the contents as in his replying afidavit indicating he was a stranger to the allegations since he was not the person responsible for the construction of the toilets. 12. That further the conditions to issue an injunction had not ben met by the applicants and that the granting of temporary order would amount to an order in the finality being that the construction was a public toilet 1st and 3rd defendant’s submissions 13. Counsel submitted that the applicant had not established a prima facie case being that the part they claim to have toilets constructed on, did not part of the suit property. That further in the unlikely event the claim goes through, the award of damages would be adequate. Issues for determination 14. Having looked at the application, the responses and submissions by both parties, the substantial issue for determination is Whether the Applicants have satisfied the threshold required for issuance of temporary injunctive orders 15. The law on granting interlocutory injunctions is set out under Order 40 Rule 1 (a) and (b) of the Civil Procedure Rules as follows: Where in any suit it is proved by afidavit or otherwise – That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or That the defendant threatens or intends to remove or dispose of his property in circumstances afiording reasonable probability that the Plaintifi will or may be obstructed or delayed in execution of any decree that may be passed against the defendant in the suit; the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 16. The principles for grant of injunction are well settled by the locus classicus of Giella Vs Cassman Brown & Company Limited [1973] E.A. 358., where the court stated thus: First, an 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 injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 17. The important consideration before granting a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules is the proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree or that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/312/eng@2026-01-27 3

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defendant threatens or intends to remove or dispose the property, the court is in such a situation is enjoined to grant a temporary injunction to restrain such acts. 18. In the instant case, it is not in dispute that the property is registered in the name of the applicants. The applicant’s case is that the 2nd respondent has encroached on part of the suit property which is adjacent to the 1st defendant’s suit property. That the 1st defendant had disallowed them from constructing a perimeter wall on that section citing security concerns, but have allowed the construction of toilets hence the need to prevent any dealing with the property pending determination of the suit. There is no contention that construction that has happened. The applicants have substantiated their claim for interlocutory injunction as proof of prima facie case has been met being that there exist public toilets on the suit property a fact not controverted rather the issue raised by the respondents is that the applicants have not proved they own the suit property. 19. In Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] eKLR a prima facie case was stated as “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.” Going by the above definition the applicants have established a prima facie case 20. The second test is as to whether the applicants stand to sufier irreparable harm that cannot be compensated in damages. The applicants have indicated that the toilets are next to a rental space let out for residential purposes and the tenants might desert the premises occasioning loss and further the value of the land will depreciate making it impossible to restore it to its original state. This in my view is irreparable harm that damages cannot meet as a mode of compensation 21. In this regard I adopt he sentiments in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others 2014) eKLR ‘’ An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy” 22. On the third limb, the balance of convenience tilts in favour of granting the injunctions than rather not as the applicants have demonstrated how they will be prejudiced as opposed to the respondents who have not shown how loss would be occasioned to them. Determination 23. I find that the applicants have met the threshold for the orders of temporary injunction to be issued in their favour. That it is apparent that if the orders sought are not granted, the suit property in dispute would be in danger of being wasted and or its legal status altered to their detriment. That in the circumstances of this case, I hold the viewthe cost of the application be in the cause, the provision of section 27 of the Civil Procedure Act chapter 21 of laws of Kenya notwithstanding. 24. The upshot of the foregoing is that the application is merited and orders of temporary injunction should issue as prayed for. The costs will be in the cause It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/312/eng@2026-01-27 4

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DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 27TH DAY OF JANUARY 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Aria for the Plaintifi Mr. Kirga for the 1st and 3rd Defendant Mr. Orimbha for 2nd Defendant No appearance for 4th Defendant Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/312/eng@2026-01-27 5

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