Wanjiru v County Government of Kwale (Environment and Land Case E041 of 2025) [2026] KEELC 2731 (KLR)

4. c. That pending the hearing and determination of the main suit, this Honourable Court be pleased to issue a temporary injunction restraining the Defendant/ Respondent from implementing or enforcing any demolition notices or administrative decisions against the Plaintifi/Applicant in relation to the subject property. d. That costs of this Application be provided for. e. THAT such further and/or other orders be granted as the court may deem fit and expedient The application by the Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 9 paragraphed annexed afidavit of Esther Njeri Wanjiru, the Plaintifi/ Applicant herein sworn on the same day as the Application. The Deponent averred that: i. The Afiant averred that she was the lawful proprietor of the land parcel situated between the Ward Ofice and County Social Hall, Kwale, having been allocated the same by the County Council of Kwale in the year 1995. Annexed hereto and marked as “ENW-1” were copies of her application form, payment receipts, and correspondence with the Council. ii. The Afiant deposed that the Defendant/Respondent had unlawfully issued enforcement notices, annexed hereto and marked as “ENW - 2”, demanding demolition of her property without: a. A valid court order as required under Section 152G of the Land Laws (Amendment) Act, 2016. b. Compliance with compulsory acquisition procedures under the Land Act, 2012. c. Justification under Article 40 of the Constitution. iii. The Afiant averred that the Defendant/Respondent’s actions violated Article 40 of the Constitution on deprivation of property without prompt compensation, Article 47 on unfair administrative action and Sections 107 – 133 of the Land Act, No. 6 of 2012 for failure to notify, consult, or compensate. iv. The Afiant deposed that she had sufiered immense distress and stood to incur irreparable loss if the Defendant/Respondent proceeded with demolition, and that she had nowhere to turn save for this Honourable Court for assistance. v. The Afiant averred that wherefore, she prayed for the orders sought in the application. vi. The Afiant deposed that in view of the foregoing, there existed special and/or peculiar circumstances necessitating the hearing of the application on a priority basis. vii. The Afiant averred that she swore the afidavit in support of the instant application III. Submissions 5. On 24th February, 2026 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 14th May, 2025 be disposed of by way of written submissions and all the parties complied. Pursuant to that all the parties obliged and a ruling date was reserved on 24th April, 2026 by Court accordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2731/eng@2026-04-24 2

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IV. Analysis and Determination 6. I have carefully read and considered the pleadings herein and the relevant provisions made by the by the parties. In order to arrive at an informed decision, the Honorable Court has framed the following two ( 2 ) issues for determination. a. Whether the Notice of Motion dated 14th May, 2025 meets threshold required of a temporary injunction under Order 40 Rules 1 of the Civil Procedures Rules, 2010. b. Who will bear the Costs of Notice of Motion application 14th May, 2025. Issue No. a). Whether the Notice of Motion dated 14th May, 2025 meets threshold required of a temporary injunction under Order 40 Rules 1 of the Civil Procedures Rules, 2010. 7. Under this sub – title, the main issue here is whether the Plaintifi is entitled to be granted the relief of an interlocutory injunction. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law. Which provides as follows: Order 40, Rule 1 Where in any suit it is proved by afidavit or otherwise— 8. a) 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 b) 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 the 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. Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of “Giella – Versus - Cassman Brown & Co Limited (1973) EA 358”, where it was stated: “ 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 be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 9. The three conditions set out in “Giella (supra)”, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR”: -, “ These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Limited - Versus - Afraha https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2731/eng@2026-04-24 3

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Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not suficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will sufier, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”. 10. In dealing with the first condition of prima facie case, the Honorable Court guided by the definition melted down in the famous case “MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125” of: -, “ So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would 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” 11. As the Court previously observed in this ruling, in the present case, the Applicant deposed that she was allocated the suit property by the County Council of Kwale in the year 1995 and annexed allocation documents and receipts. She further averred that the Respondent issued enforcement notices without a valid court order or adherence to compulsory acquisition procedures. This prima facie infringes the provision of Article 40 of the Constitution and Section 152G of the Land Laws (Amendment) Act, 2016. 12. In the case of “Mbuthia – Versus - Jimba credit Corporation Ltd 988 KLR 1”, the court held that:“ In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.” 13. Similarly, in the case of “Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Limited” the Court held that; “ In an interlocutory application to determine the very issues which will be canvassed at the trial with finality All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.” 14. In the present case, regarding this first condition though, the Plaintifi/ Applicant has demonstrated a prima facie case with a probability of successat the trial as enunciated in the case of “Giella -Versus Cassman Brown & Co. Ltd (Supra)”. 15. The court has further considered the annextures on record against the second principle for the grant of an injunction, that is, whether the Plaintifi/ Applicant might sufier irreparable injury which cannot be adequately compensated by an award of monetary damages. With regards to the second limb of the Court of Appeal in “Nguruman Limited (supra)”, held that, “ On the second factor, that the applicant must establish that he “might otherwise” sufier irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2731/eng@2026-04-24 4

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prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. 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.” 16. On the issue whether the Applicant will sufier irreparable harm which cannot be adequately compensated by an award of damages, the Applicant must demonstrate that it is a harm that cannot be quantified in monetary terms or cannot be cured. The Plaintifi/ Applicant has to demonstrate that irreparable injury will be occasioned to them if an order of temporary injunction is not granted. The judicial decision of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (2018) eKLR” provides an explanation for what is meant by irreparable injury and it states; “ Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself suficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” 17. The Applicant averred that she would sufier irreparable loss if demolition proceeded, as she would be deprived of her property without compensation. Given the nature of property rights and the constitutional protection under Article 40, demolition without compensation would occasion irreparable harm. The Applicant has therefore satisfied the second limb in “Giella’s case”. 18. Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in their favour. In the case of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (Supra)” which defined the concept of balance of convenience as: “ The meaning of balance of convenience will favour of the Plaintifi' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintifis, the inconvenience caused to the Plaintifi would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintifis to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintifi who will sufier. In other words, the Plaintifi has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”. 19. In the case of “Paul Gitonga Wanjau – Versus - Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR”, the court dealing with the issue of balance of convenience expressed itself thus:“ Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would sufier if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2731/eng@2026-04-24 5

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out to be right... Thus, the court makes a determination as to which party will sufier the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may infiuence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.” 20. The Court must weigh the comparative mischief likely to arise from granting or withholding the injunction. The decision of “Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR” where the learned judge ofiered further elaboration on what is meant by “balance of convenience” and stated; “ The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.” 21. Here, the balance of convenience favours preservation of the status quo. If demolition proceeds, the substratum of the suit will be destroyed. On the other hand, restraining the Respondent merely preserves the property pending trial. The Court is therefore persuaded that the balance of convenience tilts in favour of the Applicant. 22. In the case of:- “Robert Mugo wa Karanja – Versus - Ecobank (Kenya) Limited & Another [2019) eKLR” where the court in deciding on an injunction application stated; “ circumstances for consideration before granting a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...” 23. Having considered the principles in “Giella – Versus - Cassman Brown (supra)”, “Nguruman Limited (Supra)”, and other authorities, the Court finds that the Notice of Motion application dated 14th May, 2025 meets the threshold required for grant of a temporary injunction under the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010. Issue No. b). Who will bear the Costs of Notice of Motion application 14th May, 2025. 24. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reafirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. 25. I have well stated in previous precedence and most especially in “Sagalla Lodge Limited – Versus Samwuel Mazera Mwamunga & another (Suing as the Executors of Eliud Timothy Mwamunga – Deceased) [2022] eKLR”, that: “ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2731/eng@2026-04-24 6

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“ 58. The Black Law Dictionary defines “Cost” to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. The issue of Costs is the discretion of Courts. From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. The events in this case is that the Notice of Motion application dated 7th December, 2021 by the Plaintifi has succeeded and hence they are entitled to costs of the application and that of the Defendants dated 21st December, 2021.” 26. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 27. In the present case, the Notice of Motion dated 14th May, 2025 has met the threshold for grant of a temporary injunction under the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010. However, given that this is an interlocutory application and the substantive issues remain to be determined at trial, it is just and equitable that costs of the application be in the cause. This ensures that the question of costs will be determined alongside the final outcome of the main suit, thereby preserving fairness to both parties. V. Conclusion and Disposition 28. In long analysis, the Honourable Court has carefully considered and weighed the confiicting parties’ interests as regards to the Preponderance of Probabilities and the balance of convenience. Clearly, the Plaintifi/Applicant has raised issues touching on proprietary rights and unlawful demolition, while the Defendant/Respondent has issued enforcement notices without demonstrating compliance with the constitutional and statutory safeguards under the provision of Article 40 of the Constitution, Section 152G of the Land Laws (Amendment) Act, 2016, and Sections 107–133 of the Land Act, 2012. The Applicant’s claim is supported by allocation documents dating back to 1995, whereas the Respondent has not exhibited any lawful authority to justify its intended actions. 29. Having said that much, there will be need to preserve the suit properties in the meantime so as not to render the main suit nugatory. In a nutshell, I proceed to order the following: – a. That the Notice of Motion application dated 14th May, 2025 be and is hereby allowed, having met the threshold for grant of a temporary injunction under the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010. b. That pending the hearing and determination of the main suit, a temporary injunction is hereby issued restraining the Defendant/Respondent, whether by itself, its oficers, agents, assigns or any other person claiming through it, from demolishing, evicting, trespassing, or in any way interfering with the Plaintifi/Applicant’s possession, occupation and use of the parcel of land situated between the Ward Ofice and County Social Hall, Kwale. c. That for avoidance of doubt, no demolition, eviction, or administrative enforcement shall be undertaken in respect of the suit property until the suit is heard and determined. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2731/eng@2026-04-24 7

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d. That for expediency sake, there be a mention on 30th June, 2026 for conducting Pre – Trial Conference in accordance with the provision of Order 11 of the Civil Procedure Rules, 2010. There shall be a hearing on 27th October, 2026 preferably through Physical Means whatsoever. e. That the costs of the Notice of Motion application dated 14th May, 2025 shall be in the cause. It is so ordered accordingly. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 4TH DAY OF APRIL 2026. …………………………………. HON. MR. JUSTICE L. L. NAIKUNI ENVIROMNENT AND LAND COURT AT KWALE Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. Mr. Matende Advocate for the Plaintifi/Applicant. c. No appearance for the Defendant/Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2731/eng@2026-04-24 8

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