Konchory v Ng’usur & 5 others (Environment and Land Case E030 of 2025) [2026] KEELC 3201 (KLR)

3. A supporting affidavit sworn by the Plaintiff/Applicant was filed and the deponent reiterates the grounds in support of the application and has annexed a copy of the title deed for Transmara/Moyoi/259 issued on 20.11.2015. 4. The Application is opposed by the Replying affidavit of the 5 th Defendant/Respondent Simaga Soile who deposes interalia that (i) He is in occupation of the suit property, having purchased the same jointly with Lepete Soile Kimuru on 21 st May 2020, but no transfer was effected since a third party had lodged a caution over the suit property. (ii) That the occupation of the suit parcel was pursuant to vacant possession given to them. (iii) The 1st Defendant occupies Transmara/Moyoi/260 the parcel having been bought by his wife Lilian Kosena Kataka from Sapastiano Ongori Motari but no transfer had been effected due to a caution by Paul Lemayian Ole Naitwang; while the 2 nd Defendant owns and occupies Transmara/Moyoi/256 and Transmara/Moyoi/258 parcels registered in the name of Wilfred Joel Ombati, parcel had been purchased by Oloituyuk Lesere Ole Simaya on 20th July 2021 and 3rd Defendant occupies a parcel known as Transmara/Moyoi/263, same having been purchased by Joseph Lekishu from Simon Kerina Mungei, who was the registered owner. (iv) That there is a boundary dispute that is ongoing which the Land Registrar is seized of, and the Plaintiff had increased the property in size, over time. 5. The Respondent annexed copies of the following documents 6. Official search of Transmara/Moyoi/259, copy of sale agreement dated 21.05.2020 between the 3rd Respondent and the Plaintiff, Sale Agreement and title for Transmara/Moyoi/260, Sale Agreement for Page 2|6

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Transmara/Moyoi/256, and Sale Agreement for Transmara/Moyoi/263, summons by Land Registrar. 7. The court directed the application to be heard by oral submissions. Mr. Kiprotich Learned Counsel, argued the application on behalf of the Applicants, it was his submissions that the Applicant is the registered owner of the suit parcel and this was proved by the copy of the title deed he annexed. The Applicant argues that he has established a prima facie case with probability of success and cites the case of Giella Vs. Cassman Brown in support of his case. 8. Mr. Maito Learned Counsel for the Respondents submits that the Defendants are in occupation of the suit parcel pursuant to a purchase from the Plaintiff of the same as evidenced by an Agreement for sale executed by the Plaintiff, hence no prima facie case has been established, no balance of convenience and/or irreparable loss has been established and the Respondents urged the court to dismiss the application. 9. Mr. Kiprotich in a brief rejoinder submitted that no person acquires property without consent to transfer and/or subdivision, and that the annextures to wit the Agreements for sale relate to other properties, hence an injunction is ought to issue so as to preserve the substratum of the suit property. Issues for Determination 10. Having analysed the application the rival affidavits and submissions, the court frames the following as issues (i) Whether or not the applicant has met the threshold for grant of an injunction. (ii) Whether the application is merited? (iii) What orders ought to issue? (iv) Who bears the costs of the Application? Page 3|6

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Analysis and Determination 1. The principles for grant of an interlocutory injunction were stated in Giella Vs. Cassman Brown. The principles are “Firstly, an Applicant must show a primafacie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience. 2. Has the Applicant established a prima facie, as defined in Mrao Limited Vs. First American Bank Limited where the court stated “which on the material presented, a tribunal properly directing itself will conclude that there exists a right which is apparently been infringed by the opposite party so as to call for an explanation or rebuttal from the later…. A prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of success of the Applicants case upon trial. That is clearly a standard which is higher than an arguable case…” 11. Granted the Applicant has annexed a copy of a title deed in respect of the suit property. 12. The acreage of Transmara/Moyoi/259 varies in the various copies of titles of Transmara/Moyoi/259 annexed before court. In annexture S.S 2, in the affidavit of Simaga Soile, the acreage of Transmara/Moyoi/259 is indicated to be 5.27 Ha, while in annexture STK 1, in the affidavit of the applicant the acreage is shown as 135.27 Ha. While annexture SS.7 shows the acreage to 155.27 Ha. 13. In view of the disparities on the acreage on the 3 annextures, and given that the Respondents have annexed an Agreement for sale in which the 5th Defendant alleges to have bought the said parcel from the Plaintiff/Applicant a fact that is not disputed by a further affidavit Page 4|6

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by the Plaintiff/Applicant, the court finds that the occupation on the suit parcel by the 5th Defendant is pursuant to the said Agreement for sale, that gave him right to occupy. 14. The other defendants are said to be in occupation of adjacent parcels, exhibited by titles and agreements thereto and now that the suit properties acreage is disputed, the court finds that the Applicant has not established a prima facie with probability of success. 15. Having found no prima facie has been established, the court is not required to enquire on the other aspects in Giella Vs. Cassman Brown Ltd as was held in Kenya Commercial Finance Company Ltd. Vs. Afraha Education Society (2001) I.E.A 86 where the court held intaralia, “if prima facie case is not established then irreparable injury and balance of convenience need no consideration”. 16. The court therefore finds that there is no merit in the application before court, hence the injunction prayer is not deserved as prayed. 3. The court notes that in order to preserve the suit property, an order for maintenance of the status quo ought to issue and it hereby issues the same under the powers under practice direction 28K issued under Gazzete Notice No. 5178/2014, which empowers the court to issue the said status quo orders. 17. The status quo to mean, that the current occupant to continue being on the property and undertake daily subsistence activities including grazing and cultivation but not to undertake any construction of the suit property, while the status quo on the register to mean that the registered owner to remain so, not to transfer, charge and/or lease to a third party pending hearing and determination of this suit. 18. Costs in the cause. Dated at Kilgoris this 28th day of May 2026 Hon. M.N. Mwanyale Page 5|6

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Judge In the presence of CA – Sylvia/Clara Mr. Kiprotich for Applicant Mr. Maito for Respondent Page 6|6

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