Delmonte Kenya Limited v County Government of Murang’A (Environment and Land Case E006 of 2025) [2026] KEELC 2005 (KLR)

The initial leasehold period expired on 30-4-2022 but was renewed as aforesaid. Before the renewal of the leasehold, the Defendant gave its approval of the application for the renewal. Since 1973, the Plaintifi has been in uninterrupted possession of the suit land where it undertakes lawful activities which include pineapple production. The Plaintifi is therefore entitled to quiet, peaceful and exclusive use and enjoyment of the suit land without any interference by the Defendant or any other person whatsoever. 3. Secondly, on 7-2-2025, the Defendant’s oficers visited the suit land and claimed to be carrying out a surveyor exercise. Again, vide a letter dated 13-2-2025, the Defendant claimed that the suit land was encroaching on L.R. No. 9213/1 which the Defendant claims to own. It is the Plaintifi’s contention that L.R. No. 9213/1 does not exist and the Defendant does not own any land anywhere near the suit land. In the same letter of 13-2-2025, the Defendant gave the Plaintifi 14 days within which harm to vacate the suit property failing which the Defendant would invade the land and proceed to use it as appropriate. This letter by the Defendant is illegal and does not comply with the strict provisions of Section 152 C of the Land Act, 2012. The Plaintifi has responded to the notice to vacate by a letter dated 24-2-2025 and asked the Defendant to withdraw the notice to vacate and challenged them to produce a copy of the title deed for L.R. No. 9213/1 but the Defendant has not obliged. 4. Finally, the Defendant’s threatened action, if not stopped by this Court would cause irreparable harm to the suit land which harm cannot be adequately compensated by an award of damages. It would also contravene the Plaintifi’s Constitutional rights under Articles 40, 42 and 69 of the Constitution of Kenya. 5. The motion is opposed by the Defendant and Josephine Wanjiru Wanjiku, the County Chief Oficer, Lands Department has sworn a replying afidavit dated 12-5-2025 in which she replies as follows. One, the subject matter of the dispute comprises parcel numbers 9213/1 and 9213/2 which were declared to be public land belonging to the County Government of Murang’a in the Judgment of this Court in Murang’a ELC Case No. 47 of 2020 (OS) Samuel Irungu Muiruri and 4 Others vs. Murang’a County Government and Others. The Plaintifi was the interested party in the above suit and actively participated by filing pleadings and Applications. The Judgement in the above suit clearly shows that parcel No. 9213/1 exists and the Plaintifi even acknowledged that it was in possession of the said land. The Plaintifi has never appealed against the said judgment which was delivered on 6-7-2023. 6. Two, pursuant to the above mentioned, the Defendant proceeded to undertake a survey to establish the boundaries of the land and assess the extent of the encroachment, if any. After the survey, the Defendant discovered that the Plaintifi had encroached into the public land under its management being L.R. No. 9213/1 and consequently sent the Plaintifi a notification letter demanding that it ceases the encroachment and vacate the encroached portions. 7. Three, the judgment in ELC 47/2020 (OS) was recently afirmed by Thika ELC Petition No. EO16 of 2024, General of the Salvation Army vs Murang’a County Government and Others where the Court held that any issues related to L.R. Nos. 9213/1 and 9213/2 cannot be re litigated as they were declared to be public land in ELC Case No. 47/2020. The ruling by the Thika ELC was widely published on 14-3-2025 in the Daily Nation and the Applicant has never moved to reopen, set aside, review vary or appeal against the ruling. In ELC case No. 47 of 2020, the map of L.R. No 9213/1 was tendered in evidence and the Plaintifi did not object to its production or raise the question of its non-existence. The Plaintifi has not demonstrated in evidence that the certificate of title of the suit land incorporates public land No. L.R. 9213/1. When the Defendant approved the renewal of the lease of the suit land https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2005/eng@2026-04-14 2

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in favour of the Plaintifi, this was subject to the suit land not constituting part of disputed public/ private utility land/allocations. 8. Four, in the judgment in ELC 47/2020 (O.S.) it was held that the concept of adverse possession does not apply to public land and the averments of uninterrupted possession of the suit land since 1973 do not confer any proprietary rights over public land, to wit, 9213/1. Title L.R. 12157/10 generated on 9-9-2022 is fraudulent, illegal, null and void for purporting to incorporate and privatize all public land held by the Defendant and known as L.R. 9213/1. 9. Fifthly, the Plaintifi has not demonstrated the existence of any prima facie case with a probability of success as there is no appeal against the judgment in ELC 47/2020 (OS). Further since the Plaintifi is a pineapple producer damage that may be occasioned by this Court not granting an injunction can be adequately compensated by an award of damages. Moreover, the Constitution of Kenya does not protect unlawfully acquired property and Article 40(6) is explicit in this regard. Finally, in the event that the Court is in doubt, the balance of convenience lies in the greater public interest of recovering public land from encroachment and attempted privatization of the public resource. Finally, the instant application is the Plaintifi’s attempt to clutch on straws to scuttle the Defendant from realizing the fruits of its judgment of recovering its rightful holding of public land in trust for the benefit of people resident in Murang’a County. 10. In a supplementary afidavit dated 10-6-2025 the legal oficer of the Plaintifi, Harry Odondi, rejoins as follows. Firstly, contrary to deposition by the Defendant, there is indeed an appeal against the decision in Murang’a ELC No. 47 of 2020 being Nyeri Civil Appeal No. COACA E175 of 2023, Del Monte Kenya Limited vs Samuel Irungu Muiruri and 6 Others, which is still awaiting hearing and determination. The notice of withdrawal of appeal only related to an appeal on costs. Secondly the judgment in Murang’a ELC 47 of 2020(OS) does not state that the land in question was pubic land. It only states that the suit is dismissed and each party to bear its costs. Moreover, the Defendant did not actively participate in ELC 47/2020 and did not claim ownership of the land reference Nos. 9213/1 and 2. It did not assist the Court to identify the location of this land hence creating confusion and vagueness. Thirdly, the two parcels claimed by the Defendant are derived from a 1956 survey map which is no longer in use. The Plaintifi has never admitted the existence of the two parcels claimed by the Defendant. The Plaintifi was not a party to Thika ELC Petition No. E016 of 2024 and could not have therefore appealed. Fourthly, the Defendant has not annexed any survey report to identify the land that it claims. The survey exercise was also conducted in a haphazard manner and without adequate notice to the Plaintifi or its involvement. It cannot therefore be used to undermine the Plaintifi’s right to the suit property. For the above and other reasons, the Plaintifi prays that the motion be allowed. 11. Counsel for the parties were to file and serve written submissions by 1-4-2026 but none of them complied with timelines agreed upon on 17-2-2026. I have carefully considered the motion in its entirety including the grounds, the supporting afidavit, the replying afidavit and the supplementary afidavit. I find that the following issues arise. i. Whether land parcels numbers 9213/1 and 9213/2 exist. ii. Whether the status of the two parcels mentioned (i) above has been finally determined. iii. Whether the Plaintifi was a party in Thika ELC Petition No. E016 of 2024. iv. Whether the Plaintifi is in occupation of the suit land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2005/eng@2026-04-14 3

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v. Whether the Applicant has satisfied the principles in the case of Giella vs. Cassman Brown 1973 EA 358. 12. Regarding the 1st issue, I find that the precise location and the acreage of the L.R. No. 9213/1 and 2 is still contentious. So far the Defendant has not annexed any title documents for the said parcels and the judgment of this court in case No. ELC 47/2020 is appealed against in Nyeri Civil Appeal No. 175/2023. The question of whether the land is private or public is still pending the decision of the Court of Appeal. This finding covers the 2nd issue. 13. A look at the available record, a copy of ruling in Thika ELC Petition No. E016 of 2024 shows that the Plaintifi was not a party to the suit. The Petitioner was the General of the Salvation Army and the Respondents were the Chief Oficer lands, Physical Planning and Urban development Murang’a County Government and the County Government of Murang’a itself. The interested parties were the National Land Commission, the Chief Land Registrar and the Honourable the Attorney General. The Plaintifi does not feature anywhere in the petition. 14. In answer to the 4th issue, I find that the Plaintifi is in occupation of the land in dispute. This is why the Defendant had to issue it with the notices that precipitated the filing of this suit. 15. Since the suit is still at the interlocutory stage and the pleadings are not yet closed, I will not dwell on whether or not the Plaintifi has established a prima facie case with a probability of success. I will also not consider whether the Plaintifi stands to sufier irreparable loss that cannot be adequately compensated with an award of damages. What I will consider is the balance of convenience. I find that this balance tilts in favour of the Plaintifi remaining in possession until there is a final determination in the suit. To allow the Defendant to enter the land and deal with it when this suit is pending will neither be fair nor just. It will also not be reasonable because we do not as of now know what the outcome of this case will be. It is therefore prudent to preserve the status quo so that the substratum of the dispute is not interfered with. 16. In conclusion and for the reasons already given, I allow the notice of motion dated 26-2-2025 in terms of prayer 3. Costs in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 14TH DAY OF APRIL, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Jackline Plaintifi’s Counsel – Mr Thuo and Sande Defendant’s Counsel – Absent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2005/eng@2026-04-14 4

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