LCAP v MWG (Environment and Land Case E052 of 2025) [2026] KEELC 2097 (KLR)

4. The Plaintifi asserts that he further learnt that the Plaintifi had actually subdivided parcel Kjd/ Ntashart/8187 into two parcels; Kjd/Ntashart/22696 & Kjd/Ntashart/22697 without his knowledge and consent, and registered the resultant parcels in her name. 5. Consequently, the Plaintifi seeks an order of temporary injunction restraining the Respondent, her servants, agents, employees and or any other persons acting on her behalf from interfering, trespassing and or selling ofi, advertising, developing or completing any conveyance or transfer of any sale concluded by auction or private treaty or otherwise interfering with his ownership of the title no. Kjd/ Ntashart/8187, Kjd/Ntashart/22696 & Kjd/Ntashart/22697, amongst the other orders. Response by the Defendant. 6. The Defendant vide her replying afidavit sworn on 21st July 2025, terms the Plaintifi’s application grossly incompetent and calls for its dismissal stating that the application is speculative and amounts to an abuse of the process of court. Further, that it has not met the threshold for grant of the orders sought therein. 7. The Defendant nevertheless admits that she was in a romantic relationship with the Plaintifi between the year 2005 and 2014, during which time they acquired title number Kjd/Ntashart/3550 which was registered in her name. She asserts that they both contributed financially towards the acquisition of the Land. 8. Subsequently, the parties mutually agreed to subdivide the land into three parcels; Kjd/ Ntashart/17712, Kjd/Ntashart/17713 & Kjd/Ntashart/17714. Out of the three resultant subdivisions, they mutually agreed to sell Kjd/Ntashart/17713 and applied the proceeds thereof to supporting their children. 9. The Defendant alleges that the Plaintifi unilaterally sold Kjd/Ntashart/17714, kept, retained and solely utilized all the proceeds of the sale to his own personal use. She accuses the Plaintifi of now eyeing Kjd/ Ntashart/17712, which was left behind for the upkeep of their children and herself. On the said parcel of land is the family house which serves as her and the children’s only home. 10. The Defendant avers that they had agreed with the Plaintifi to rent Kjd/Ntashart/17712 and the proceeds be used to support their two children. The rental income is the main source of income for the upkeep of the children after the Plaintifi abdicated his parental responsibility. 11. The Defendant denies that the subdivision of Kjd/Ntashart/3550 resulted in parcel Kjd/ Ntashart/8187. She asserts that the said parcel, Kjd/Ntashart/8187 is her own personal property acquired from her own sources and the Plaintifi has no legitimate claim over it. She too claims Kjd/ Ntashart/8189 as her own personal property. 12. It is the Defendant’s case that she subdivided Kjd/Ntashart//8187 into Kjd/Ntashart 22696 & Kjd/ Ntashart/22697 but sold Kjd/Ntashart/22697 to a third party. She therefore only retains the parcel Kjd/Ntashart/22696 currently. 13. The Defendant asserts that the Plaintifi’s application has not met the threshold for the grant of an interlocutory injunction and prays for its dismissal with costs. 14. In a further afidavit, the Plaintifi reiterated his averments in the application and supporting afidavit insisting that all the properties referred to were acquired as explained in his supporting afidavit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2097/eng@2026-04-16 2

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Court’s Directions. 15. The Court’s directions were that the application be canvassed by way of written submissions which the court has duly considered in writing this ruling. Issues for determination. 16. The Plaintifi seeks various orders some of which are indeed final in nature. They are the same orders sought in the plaint. 17. The only two issues for determination in this court’s opinion therefore are; i. Whether the Plaintifi is entitled to the final orders sought in the application. ii. Whether the Plaintifi has made a case for the grant of an interlocutory injunction. Determination. 18. Beginning with the 1st issue, the prayers for final orders are obviously misplaced and untenable at this stage of the proceedings; i.e. the prayer for an order declaring transactions in the properties done without the consent of the Applicant null and void, the prayer for an order declaring the Applicant the beneficial owner of the properties and the prayer that the Respondent produces documents relating to transactions involving properties Kjd/Ntashart/8187, Kjd/Ntashart/22696 & Kjd/Ntashart/22697. 19. In the case of Gilbert vs Eden (1878) 9 ch.D) Cotton LJ defined interlocutory applications as those applications, “ ….which do not decide the rights of parties, but are made for purposes of keeping things in status quo till the rights can be decided or for purposes of obtaining some directions of the court as to how the case is to be conducted, as to what is to be done in the process ofi course for purposes of enabling the court ultimately to decide upon the rights of the parties.” 20. In seeking the final orders in an interlocutory application, the Applicant went beyond the scope of such an application. The said orders are declined at this instance. 21. On the 2nd identified issue, the law is well settled since the pronouncement in the notorious decision in Giella vs Cassman Brown & Co. Ltd (1973) EA 358. This decision was afirmed by the court of appeal in Nguruman Ltd vs Jan Bonde Nielsen & 2 others (2014) eKLR, which, while upholding the 3 conditions established under Giella case held that they must be surmounted sequentially. 22. Regarding the first condition of a prima facie case the court stated that; “ The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion ….. “ 23. I have carefully read the application by the Plaintifi as well as the supporting afidavit and the documents attached thereto. I must state that the Plaintifi has not stated the ‘act’ or action by the Defendant that has threatened his rights over the properties the subject of this suit to warrant the issuance of an order of interim injunction to prevent irreparable harm. In any event, the Plaintifi https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2097/eng@2026-04-16 3

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allegedly discovered that the Defendant had leased the subject parcel of land to a third party way back in the year 2023 but only came to court in 2025. 24. It is noteworthy that the parcels of Land title No. Kjd/Ntashart/22697 & Kjd/Ntashart/22696 are already cautioned. There is no likelihood of them being transferred or dealt with, without notification to the Plaintifi, the cautioner. 25. The court’s finding is that the Plaintifi has not demonstrated any imminent threat to the properties to justify the issuance of an order of interlocutory injunction pending the hearing and determination of this suit. He ha not established a prima facie case. 26. From the evidence of the Defendant, it is also apparent that some of the properties named in the Plaintifi’s application belong to third parties who have not been joined into this suit as parties. Issuing any orders against such persons is against the rules of natural justice. The Plaintifi must establish the status of registration of the parcels of land and take appropriate steps to join the registered proprietors of those parcels into this case to allow them an opportunity to defend themselves. 27. Consequently, the Plaintifi’s application dated 28th April 2025 is without merit and is hereby dismissed. I however make no orders as to costs considering the nature of the relationship between the parties. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 16TH DAY OF APRIL 2026. M.D. MWANGI JUDGE In the presence of: Ms. Nyaguthie for the Plaintifi/Applicant Ms. Akallo for the Defendant/Respondent Court Assistant: Alex M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2097/eng@2026-04-16 4

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