Ombaba & another (Suing as the administrator of the Estate of the Late Ombaba Mokoro) v Oriosa & 5 others (Environment and Land Case E006 of 2024) [2026] KEELC 3552 (KLR)

3. a. That pending the hearing and determination of this suit, a Conservatory Order be and is hereby issued restraining the Defendants/Respondents, jointly and severally, whether by themselves, their agents, servants, employees, or anyone acting under their authority, from entering upon, remaining on, constructing, cultivating, leasing, charging, transferring, alienating, or in any manner dealing with or interfering with the Plaintifis’ quiet possession of Masaba/Bomobea/867. Land Parcel No. Nyaribari. b. That pending the hearing and determination of this suit, an Order of Inhibition be and is hereby issued prohibiting the Intended 4th Defendant (County Land Registrar) and 5th Defendant (County Surveyor) from registering any dealings, rectification, mutation, or instrument, and from efiecting any further alterations to the registry map PID Sheet No. 2 or records in respect of Land Parcel Nos. Nyaribari Masaba/Bomobea/867 and the disputed/ resultant Parcel No. Nyaribari Masaba/Bomobea/1232. c. That pursuant to Section 35(4) of the Land Registration Act, an Order for Preservation of Evidence be and is hereby issued directing the 4th and 5th Defendants to forthwith produce before this Honourable Court the original Green Cards, Registry Index Maps (RIM), and the Mutation Forms/File relating to the creation of Parcel No. 1232 for purposes of inspection and impounding by the Court. d. Cost of the application be provided for. The application is grounded on the facts pleaded on the face of the application inter alia; 1. The deceased, Ombaba Mokoro, was the registered proprietor of Land Parcel No. Nyaribari Masaba/Bomobea/867, having acquired title on 14th May 1970 and issued with a Certificate of Title on 6th March 1971, and the said property has at all times remained part of his estate under administration. 2. The said property was subdivided on or about 20th May 2015 into Parcels Nos. 2586 and 2587, but the intended 4th Defendant (County Land Registrar) subsequently directed by letter dated 1st July 2016 that the titles be surrendered for cancellation and reversion to Parcel No. 867 pending completion of the succession process, which directive the Plaintifis complied with. 3. That the intended 4th Defendant thereafter, by letter dated 3rd June 2021 (Ref. KSI/LND/ LG/23/(507)), directed the intended 5th Defendant (County Surveyor) to cancel the titles to Parcels Nos. 2586 and 2587 and to amend the cadastral map to revert to Parcel No. 867, and the said reversion was duly refiected in the Registry Index Map (PID Sheet No. 2) on 8th June 2021. 4. That between 2021 and March 2025, the Plaintifis conducted several oficial searches and obtained multiple copies of Registry Map Sheet No. 2, all of which confirmed that no parcel known as Nyaribari Masaba/Bomobea/1232 existed within or adjoining Parcel No. 867. 5. That pursuant to an Order of this Honourable Court issued on 11th March 2025, a Surveyor’s Report dated 3rd September 2025 was filed, purporting to rely on a new PID Sheet No. 2 dated 18th June 2025 that suddenly refiected a parcel numbered 1232 allegedly overlapping Parcel No. 867. 6. The sudden appearance of Parcel No. 1232 on a Registry Index Map (PID Sheet No. 2) dated 18th June 2025—after this Court had already issued orders for a survey on 11th March 2025 —constitutes a fraudulent alteration of the Land Register and Cadastral Maps by the 4th and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3552/eng@2026-04-28 2

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5th Defendants, intended to defeat the administration of justice and deprive the Estate of its property. 4. The application was also supported by the afidavit of the 1st Applicant, which reiterated the grounds stated in the application. He further deposes that in August 2021, he discovered that unknown persons had erected structures on the suit property without our authority. Upon inquiry, and after initially suing the area chief and the Kisii County Government under MCELC/E132/2021, we later identified the 1st, 2nd, and 3rd Defendants as the culprits. 5. That on 11th March 2025, this Honourable Court ordered a survey to ascertain the boundary of Parcel No. 867. The Surveyor’s Report dated 3rd September 2025 was thereafter filed, and a copy is already on record. Upon perusal of the said report, he found that the surveyor relied on a newly generated PID Sheet No. 2 dated 18th June 2025, which, for the first time, showed that Parcel No. 1232 overlapped Parcel No. 867. He avers that the introduction of parcel number 1232 was unlawful and fraudulent. 6. The application is opposed by the 1st Defendant/Respondent's reply afidavit. He deposes that a close reading of paragraphs 11-13 of the supporting afidavit confirms that the Applicants are relying on hunches and concoctions of their own imagination to hoodwink this Court into granting the undeserving orders sought. 7. The 1st Respondent asserts that the Applicants have failed to satisfy the threshold requirements for an interlocutory conservatory injunction, namely a prima facie case, irreparable loss, or a balance of convenience favouring the Applicants. He urged the court to dismiss the application with costs. 8. The Applicants filed written submissions dated 11th January 2026 in support of their application, while the 1st Respondent replied with submissions dated 2nd February 2026. I have taken note of the case law cited in the Applicants' submissions regarding the purpose of issuing conservatory orders. That purpose is also anchored in Order 40(1)(b) of the Civil Procedure Rules, which states as follows; “ 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 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.” 9. The Applicants are equally aware of their obligations to demonstrate a prima facie case, irreparable loss, and the balance of convenience. The Applicants afirm that the deceased, whose estate they administer, is the registered owner of parcel no. 867. Apart from the interference with the RIM map, the interference by the 1st to 3rd Defendants complained of occurred awhile back in 2021. 10. They pleaded thus: “THAT in August 2021, I discovered that unknown persons had erected structures on the suit property without our authority. Upon inquiry, and after initially suing the area chief and the Kisii County Government under MCELC/E132/2021, we later identified the 1st, 2nd, and 3rd Defendants as the culprits have interfered with the two suit parcels.” 11. This application is being made three years after the event, and there is no mention of any new activities in which the 1st -3rd Defendants are engaged in that would warrant this court’s intervention before the suit is heard and determined. 12. The Applicants failed to demonstrate the real danger in the case they cited where Mwongo J in Martin Nyaga Wambora v Speaker of the County Assembly of Embu and 3 Others, Petition No. 7 of 2014 said at paragraph 60 thus: “To those erudite words I would only highlight the importance of demonstration https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3552/eng@2026-04-28 3

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of “real danger”. The danger must be imminent and evident, true and actual and not fictitious; so much so that it deserves immediate remedial attention or redress by the court. Thus, an allegedly threatened violation that is remote and unlikely will not attract the court’s attention.” 13. Additionally, it is settled law that interim injunctions of a conservatory nature can be issued against the government, only in public interest matters. No public interest is disclosed by the Applicants. 14. The application also proceeded without service on the government agency, as the prosecution was before they were formally joined to the proceedings. In any event, the proposed 4th and 5th Defendants can only interfere with the suit parcels to the extent of record-keeping. Having reviewed the grounds in support of the application, I find that no evidence has been adduced to warrant the granting of prayer 2 of the notice of motion. 15. With regard to a prayer for inhibition sought under paragraph (3), the Applicants refer to the survey report dated 3rd September, 2025, prepared pursuant to a court order. According to him, the report relied on PID Sheet No. 2 dated 18th June 2025, which for the first time showed a parcel numbered 1232 overlapping Parcel No. 867. It is the text of this report that caused the Applicants to pray for inhibitory orders and preservation of the evidence. 16. The fact that a report has been prepared and filed confirms the existence of the two suit plots. Whether parcel 1232 is superimposed on parcel 867 is a question that can only be determined after taking evidence. There was no evidence presented that exhibited ongoing dealings by the Respondents. However, in the interest of justice, the two titles shall be secured in their current state, and it is for this reason only that I do grant the order of inhibition, inhibiting any dealings on the same until this suit is heard and determined. 17. Whether this court ought to grant an order for preservation of evidence, I think the said prayer is premature as there was no proof that a request had been made to the appropriate ofice to avail the original Green Cards, Registry Index Maps (RIM), and the Mutation Forms/File relating to the creation of Parcel No. 1232 and the request not actioned. The Applicants can move the court in the event such request to the County Survey Ofice and County Land Registrar is not acted upon. 18. Further, the Applicants have a right to cross-examine the County Surveyor on the report dated 3rd September, 2025, whether the said ofice is made a party to these proceedings or not. The fact that the survey report forms part of documents in this case and the Applicants having the documents obtained between 2021-2025 implies that they will not sufier any prejudice if I decline to grant prayer (4) of their motion. 19. In conclusion, I hold that I find no merit in the prayers for conservatory orders and preservation of evidence. The request to have an inhibition registered on the two suit titles, prohibiting any dealings is granted. The costs of the application to the Respondents in the cause. DATED, SIGNED AND DELIVERED AT KISII THIS 28TH DAY OF APRIL, 2026. A. OMOLLO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3552/eng@2026-04-28 4

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