Chirchir v Fuel Link Energy & 2 others (Environment and Land Case E240 of 2025) [2026] KEELC 1231 (KLR)

the ‘suit land’, as a lessee from the Government of Kenya. He claims that he has learnt that the 1st Defendant made a fictitious application for replacement of title to the suit land on allegations that it has lost its title deed and was subsequently issued with a provisional certificate of title, which it then charged with the 3rd Defendant to secure a sum of kshs.60 million. He contends that the charge is a ploy to move the suit land further away from him. 3. He explains that he became aware of the 1st Defendant’s overtures when the 1st and 2nd Defendants circulated a notice requesting for comments on the proposed construction of residential apartments on the suit land. Further, that their building plans have also been approved by the County Government and for this reason, he contends that there is imminent fear that unless the Court intervenes, the Defendants will unlawfully dispossess him, consequently occasioning him irreparable loss. Responses 4. The suit is opposed by the 1st Defendant vide the replying afidavit of its director, one Mohammed Abdirashid Hassan. He claims that the 1st Defendant duly purchased the suit land from Nilam Dry Cleaners Limited on 18th November 2020 and that contrary to the Plaintifi’s allegations, it has never obtained a provisional certificate of title. He confirms that its title to the suit land was charged to the 3rd Defendant and after being subjected to the rigorous process of due diligence, it was discharged. He annexed a current oficial search indicating the 2nd Defendant as the registered owner of the suit land and a copy of the land register indicating the history of the property. 5. He contends that the Plaintifi’s conduct is a calculated scheme of fraud and extortion, aimed at discrediting lawful proprietors to enrich himself and alleges that he reported the said conduct to the police and he was issued with an OB, which he annexed. 6. The suit is also opposed by the 2nd Defendant vide the replying afidavit of its director, Ahmed Hersi. He claims that the 2nd Defendant is the registered proprietor of the suit land (now allegedly converted to Nairobi /Block 24/1850), vide a sale agreement dated 31st July 2023 and a subsequent transfer from the 1st Defendant. He insists that prior to purchase, it conducted due diligence. 7. He points out that the suit land was originally allocated to Nilam Dry Cleaners Limited in 1995, and that it misplaced its title twice in separate occasions and applied for replacement. Further, that in the two instances of loss of title, Nilam Dry Cleaners Limited was issued with provisional titles following publication of gazette notices inviting members of the public to lodge objections and since none was received, the Plaintifi is estopped from claiming the suit land. 8. He claims that in compliance with the law, the 2nd Defendant duly sought comments on its proposed development on the suit land and obtained building approvals of its plans from the County Government of Nairobi in a process that was transparent. 9. On its part, the 3rd Defendant filed a replying afidavit sworn by its Senior Legal Oficer, one Phoebe Ndiritu. It avers that the 3rd Defendant charged the suit land on or about 7th December 2021 to secure an Ijara Sale and Lease back (term facility) of kshs.60 million in favour of the 1st Defendant but the facility was never disbursed as the 1st Defendant obtained financing from alternative sources. Consequently, the 3rd Defendant released the 1st Defendant’s title documents and facilitated the discharge of charge. In the foregoing, she contends that the 3rd Defendant should be struck ofi the suit having been improperly enjoined as it does not hold any interest on the title to the suit land. 10. In response to the replying afidavits, the Plaintifi filed a Supplementary afidavit. He avers that in accordance with the provisions of the Land Registration Act, for the replacement of a lost/destroyed https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1231/eng@2026-03-04 2

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title, notice must be published in the Kenya Gazette as well as in at least two (2) local newspapers of nationwide circulation and since Nilam Dry Cleaners Limited only circulated its notice of loss of title in gazette notices, the same was insuficient thus he is not estopped from claiming the suit land. 11. He reiterates that the transfer from Nilam Dry Cleaners Limited to the 1st Defendant was illegal since he is the legal proprietor and he did not consent to it. He avers that while the 2nd Defendant claims that it conducted a search before purchasing the suit land, the same is not suficient due diligence. Further, that conversion of the suit land to Nairobi /Block 24/1850 was without his knowledge and consent and is part of the fraudulent scheme perpetuated by the 1st Defendant. He annexed EKC -1, a one paged certificate of title. 12. The application was canvassed by way of written submissions. Submissions 13. The Plaintifi submits that it has met the threshold for issuance of injunctions as set in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358, having produced evidence of his proprietorship. Further, that if the 1st and 2nd Defendants who have openly declared their intention to commence construction of residential apartments on the suit land are allowed to do so, the character of the said land will be fundamentally and irrevocably altered thereby cause him irreparable loss that cannot be compensated as land being a unique asset, its loss cannot always be measured in monetary terms. To this end, he relied on the decisions of Kenya Hotels Limited v Oriental Commercial Bank Limited [2019] eKLR and Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd & 2 Others [2016] eKLR. 14. He submits that the Defendant’s actions threaten to create a web of third-party interests, further making it practically impossible for him to recover his property in its original state. Further, that the lower risk of injustice lies in preserving the suit land in its current state as granting the injunction sought will maintain the status quo that existed before the Defendant’s fraudulent actions and no prejudice will be occasioned to the Defendants that cannot be compensated. 15. On its part, the 1st Defendant submits that the Plaintifi has not met the threshold for grant of injunctions having failed to establish a prima facie case. It points out that the Plaintifi produced annexure EKC-1 which is a single page document that bears no signature, is not authenticated, and it’s not in the statutory form prescribed under the Land Registration Act. It relies on the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 to submit that where no recognizable interest is demonstrated, there is no right capable of infringement. 16. It submits that in contrast, the 2nd Defendant’s documents which are oficial records emanating from the Chief Land Registrar indicate that it is the registered proprietor of the suit land and sections 25 and 26 of the Land Registration Act protects the title of a registered proprietor unless fraud attributable to the proprietor is proved. 17. Further, that the Plaintifi has not explained the damages he is likely to sufier or why damages would be inadequate if the orders sought are not granted while the 2nd Defendant has demonstrated that it has approved building plans ready to develop the suit land and would sufier loss if the orders sought are granted. It reiterated that even the balance of convenience favours the 2nd Defendant, which holds a registered proprietary interest. 18. The 2nd Defendant submits that the Plaintifi has failed to establish a prima facie case with any probability of success against the Defendants. It points out that the chain of ownership from the original allottee, Nilam Dry Cleaners Limited, through subsequent transfers to it, is clearly set out while conversely, the Plaintifi relies on a single-page certificate of title purportedly issued under the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1231/eng@2026-03-04 3

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Land Registration Act which is not supported by any corresponding historical documents under the repealed Registration of Titles Act (Cap. 281) or any allocation. 19. It also submits that the Plaintifi did not tender evidence of imminent loss, destruction, or interference with his alleged proprietary interest that cannot be remedied by damages given that the 2nd Defendant, is a solvent corporate entity with suficient means to satisfy any decree that may arise should the Plaintifi ultimately succeed, thus the balance of convenience tilts in favour of maintaining its lawful title and possession. 20. The 3rd Defendant submits that its continued participation in these proceedings would serve no useful purpose, having already discharged its interest in the suit property. It urges the Court to exercise its discretion under Order 1 Rule 10(2) of the Civil Procedure Rules and strike it out from the suit. To buttress this position, it relied on the case of Civicon Limited v Kivuwatt Limited and 2 others [2015] eKLR. Analysis and Determination 21. Upon consideration of the instant Notice of Motion application including the respective afidavits and rivalling submissions, the only issue for determination is whether the Plaintifi has met the threshold for grant of interlocutory injunctions to restrain the Defendants from interfering with the suit land pending outcome of this suit. 22. In line with the principles on injunctions as set out in the case of Giella v Cassman Brown & Company Ltd (1973) EA 358 including the definition of a prima facie case as espoused in the decision of Mrao Ltd v First American Bank Ltd (2003) KLR 125, I will proceed to decipher whether the Plaintifi has established a prima facie case as against the Defendants to warrant the orders of temporary injunction as sought. 23. The Plaintifi claims to be the registered owner of the suit land as a lessee from the Government of Kenya and contends that the 1st Defendant purportedly charged the property to the 3rd Defendant and subsequently transferred it to the 2nd Defendant. It seeks an injunction restraining the Defendants from developing the suit land on the basis that allowing physical developments thereon would be to sanction an irreversible injustice as he would sufier irreparable harm. 24. On their part, the 1st and 2nd Defendants claim that the suit land was originally allocated to Nilam Dry Cleaners Limited, subsequently transferred to the 1st Defendant, and thereafter to the 2nd Defendant, which is the current registered proprietor. They contend that granting an injunction would freeze a legitimately held asset on the strength of the Plaintifi’s single-page certificate of title without any documentary support evidencing a chain of title and that any potential loss can be adequately compensated. 25. On its part the 3rd Defendant seeks to be struck out as a party in the suit under Order 1 Rule 10(2) of the Civil Procedure Rules, on the basis that although a charge was registered in its favour to secure an intended facility of Kshs. 60 million, the facility was never disbursed to the 1st Defendant and the charge was subsequently discharged. 26. Looking at the documents presented by each party, I note the Plaintifi, 1st and 2nd Defendants all claim proprietary interest over the suit land. Further, the 2nd Defendant has even obtained approval for construction in the suit land. The Plaintifi has argued that once the 2nd Defendant is allowed to develop the suit land, he will sufier irreparable harm which cannot be compensated by way of damages since the said land will be altered. The 2nd Defendant insists that it purchased the suit land from the 1st Defendant that had purchased it from the original allotee Nilam Drycleaners Limited. Further, that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1231/eng@2026-03-04 4

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in the year 2005, Nilam Drycleaners Limited had misplaced its title and obtained a replacement of the same after applying for a provisional one which was even gazetted. To my mind I find that the veracity of this explanation can only be tested once viva voce evidence is adduced. It is my considered view that the issues being raised by the Plaintifi which touch on the root of the 2nd Defendant’s title raise a prima facie case. 27. In the case of Joel Mugambi Mukira & 2 others (for and on behalf of Kimathi tenants welfare group) v County Government of Nyeri [2019] eKLR, the Court held that: “ As was held by the Court of Appeal in the case of Mugah -v- Kunga [1988] KLR 748, in land matters status quo orders should always be issued for purposes of preserving the subject matter. The court's practice directions vide Gazette Notice No. 5178/2014 Practice direction No. 28(k) gives the court the leeway and discretion to make an order for status quo to be maintained until determination of the case.” 28. In the foregoing, while associating myself with the aforementioned decision, since the Plaintifi and the 2nd Defendant both claim to hold title to the suit land, at this juncture, I opine that the maintenance of status quo and inhibiting the title pending the outcome of this suit will sufice, so as to preserve the substratum of the suit before the real owner of the suit land is determined by this Court. I note the 3rd Defendant has sought to be struck ofi this suit but I opine that it needs to move C0urt in the proper manner as stipulated in the Civil Procedure Rules to be struck ofi this suit. 29. In the foregoing, I find the instant Notice of Motion application merited but will allow it in the following terms: a. An order of Obtaining Status Quo be and is hereby issued where no party should interfere with the suit land in terms of changing the registration status or topography pending the outcome of this suit. b. Costs will be in the cause. DATED SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF MARCH, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ikua for Plaintifi Mahmoud holding brief for Jama for 1st Respondent Dadu for 2nd Respondent Kyalo for 3rd Respondent Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1231/eng@2026-03-04 5

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