Ndiwa v Kide (Land Case E002 of 2026) [2026] KEELC 2378 (KLR)

5. The applicant deposes that he made a report at Chepchoina Police Station, OB No. 26/12/2025. The applicant deposes that he is apprehensive of imminent danger of loss of his property and life, hence the relief sought. 6. The application is opposed by an afidavit sworn by Paul Kide on 24/2/2026. He says that he has been in open, actual, peaceful, and uninterrupted occupation of the suit property after purchasing it in 2010 from the original allottee, who had, after allotment by a letter of ofier dated 22/8/2008, by the Settlement Fund Trustees, paid the 10% on 1/7/2009, issued with a receipt, and taken possession. He attached the sale agreement dated 8/3/2010, letter of ofier dated 22/8/2008, receipt dated 1/7/2009, photographs, and an index ground report dated 2/1/2026 as annexures marked PK-(2), (3), (4), (5), and (6). 7. The respondent deposes that he has been meeting his financial obligation over the suit property as per the payment receipt by the County Land Adjudication & Settlement ofices, as per the receipt for Kshs. 16,500/= made on 5/4/2022, attached as PK-(7) and (8). The respondent deposes that in January 2021, he approached the settlement oficer to clear the outstanding loan, only to be told it should be the original allottee to do so, but informed them of his demise as per a death certificate attached as PK-(9). 8. The respondent says that upon verification, the settlement oficer authorised the clearance of the balance on or before 30/10/2024, and was issued with the oficial statement of account showing the balance annexed as PK-(10), which he later cleared as per the receipt dated 24/10/2024 marked as PK(11). 9. The respondent states that he had been assured by the settlement oficer that the plot remained registered in the name of the original allottee, and to the best of his knowledge, the family of the deceased did not receive any notice to remedy the breach or cancellation of the ofier dated 15/5/2024. In the absence of any evidence of service of it, through known means, the defendant denies its issuance, making the same null and void for want of the process of cancellation. 10. The respondent terms the plaintifi’s purported letter of ofier, payments, and the resultant issuance of the title as irregular, illegal, and unprocedural, for the suit property was not available for re-allocation under the circumstances. The respondent denied the alleged trespass. 11. On the contrary, he says that it is the plaintifi who, on 25/12/2025, forcefully entered the land with a rowdy individual claiming ownership and, in the process, harming him, which he reported to the police. The respondent states that the application is aimed at sanitising the illegal re-allocation to unlawfully evict him from the land he has occupied for 15 years. 12. The defendant relies on written submissions dated 22/3/2026. Order 40 Rule (1) of the Civil Procedure Rules allows the court where in a suit through an afidavit or otherwise, is proved that any property in dispute is in danger of being wasted, damaged, or alienated by any party to the suit or where the defendant threatens to remove or dispose of, to grant a temporary injunction to restrain such act or make any other order of stay or prevent the wasting, damage, or alienation. 13. An applicant has to establish a prima facie case, show there will be irreparable loss or damage in the absence of such an order, and lastly, that the balance of convenience tilts in favour of granting the orders sought. 14. A prima facie is more than an arguable and bona fide case. In Mrao Ltd -vs- First American Bank of (K) Ltd [2003] eKLR, it was described as establishing if, looking at the material before the court, a right has been infringed to call for a rebuttal from the opposite side. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2378/eng@2026-04-29 2

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15. An irreparable loss or damage is one incapable of being quantified in monetary terms. It must be real, apparent, imminent, substantial, and proved. In Nguruman Limited -vs- Jan Bonde Nielsen & 2 others [2014] eKLR, the court said that mere apprehension or fear is not enough. 16. Balance of convenience refers to the applicant sufiering more in the absence of the injunction than the respondent in the presence of it, and ultimately, the suit succeeding after the main hearing. See Pius Kipchirchir Kogo -vs- Frank Kimeli Tenai [2018] eKLR. 17. A court at the stage of determining whether to issue the order is not expected to conduct a mini-trial or make definitive findings on facts or law, but to see to it, based on the afidavits and the material tendered, on a balance of probabilities, whether a case has been made for the grant of a temporary injunction. 18. In this suit, the plaintifi is the registered owner of the suit property by virtue of a title deed, which, under Section 26 of the Land Registration Act, is to be taken by the court as prima facie proof of ownership in the absence of impeachment on account of fraud, illegality, and issuance through misrepresentation or corrupt means. 19. On the other hand, the defendant relies on a sale agreement with the original allottee, said to be deceased. The death certificate shows he passed on 3/8/2003, and was issued on 25/8/2003. So, if he was dead by 3/8/2003, it means that the letter of ofier dated 22/8/2008 was issued to a dead person. Dead persons do not tell tales or sign acceptance of ofiers or sale agreements or make payments of loan arrears unless it is done by a legal representative. 20. The defendant relies on the strength of the annexures to the replying afidavit that he has protectable rights or interests on the land which as per the defence and counterclaim, have been infringed by the plaintifi to sanitize an illegal revocation, cancellation and re-allocation of the title to the suit land when he had already paid the outstanding loan by 24/10/2024, and had received an assurance from the allocating authority of the validity of the ofier. 21. In Botwa Farm Co. Ltd -vs- Settlement Fund Trustees & Another [2019] eKLR, the court held that until a charge is perfected and land transferred in the name of the allottee, he has nothing to transfer or sell to a third party. 22. My finding is that the plaintifi has established a prima facie case. Irreparable loss and damage are imminent from the annexure to the supporting afidavit. The balance of convenience tilts in granting the order of temporary injunction to last for one (1) year, from the date hereof. 23. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 29TH DAY OF APRIL 2026. HON. C.K. NZILI JUDGE, ELC KITALE. In the presence of: Court Assistant - Dennis Ndiwa Serebe for the applicant present Teti for the defendant present https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2378/eng@2026-04-29 3

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