Gatacha (Suing as a Lawful Attorney of Peter Njonjo Kibera & Agnes Wairimu Kibera Vide Special Power of Attorney Dated 11th October 2011) v Nairobi City County & 4 others (Environment and Land Case E610 of 2025) [2026] KEELC 4396 (KLR)

constructing any structures and/or laying pipes be it for sewerage or water, buildings, markets, be it temporary or permanent structures, on all that parcel of land known as Plot No. 239 – Umoja Innercore Sector V Infill pending the hearing and determination of this suit. d. That the costs of this application be provided for. 2. The application is premised on grounds on its face and on the Plaintifi’s supporting afidavit. He avers that he is the lawful Attorney of Peter Njonjo Kibera and Agnes Wairimu Njonjo in respect of Plot No. 239 Umoja Innercore Sector v Infil, herein referred to as the ‘suit property’. He claims that on or about 16th January 2002, the 1st Defendant allotted the suit property to the 2nd Interested Party and issued him with a Letter of Allotment, Beacon Certificate and all relevant documents in regards to ownership of the said suit property. Further, that on 9th February 2010, the 2nd Interested Party sold the suit property to Peter Njonjo Kibera and Agnes Wairimu Njonjo who immediately took up possession. He explains that however, a dispute arose between them on one part and the 1st Interested Party on the other part, which culminated in Nairobi ELC Case No. 384 of 2020, which was heard and determined vide judgement dated 20th June 2019, and subsequently appealed against vide Civil Appeal No. 429 of 2019, which is pending determination. 3. He contends that despite the pending Appeal, in the month of November 2025, the 1st Defendant who is a party in the impugned dispute now at the Court of Appeal, in conjunction with the 2nd Defendant unlawfully entered the suit property and started to excavate with earth movers with a view to lay sewerage and water pipes without his principals’ consent. He also claims that the invasion to the suit property is a gimmick by the 3rd Defendant who is the area Member of County Assembly, to grab the suit property by allegedly claiming it as public land, yet he intends to develop containers for purposes of leasing privately to members of the public. Response 4. The application is opposed by the 1st Defendant vide the replying afidavit of Boniface Waweru. He avers that a Letter of Allotment is merely an ofier capable of acceptance, subject to fulfilment of conditions’ and does not constitute title: thus, no proprietary interest ever accrued to the 2nd Interested Party, and consequently, no valid title existed capable of being transferred to the Plaintifi’s principals. 5. He insists that the Judgment in ELC Case No. 384 of 2010 did not confer registered title in favour of the Plaintifi’s principals either, thus, legal ownership of the suit property never departed from the 1st Defendant, and it hence remains unalienated public land and the actions complained of, if any, fall squarely within the 1st Defendant’s lawful execution of public duties and do not constitute trespass. Further, that mere photographs of machinery without linkage to the 1st Defendant are insuficient to impose liability upon it. 6. On her part, the 1st Interested Party filed a Notice of Preliminary Objection in which she contends that the instant proceedings are barred by Section 7 of the Civil Procedure Act, as the issues raised herein having been directly and substantially in issue in ELC Suit No. 384 of 2010, and having been determined on merit by a Court of competent jurisdiction. Further, that the Plaint contravenes Order 4 Rule 1 of the Civil Procedure Rules as the Plaintifi avers therein that there is no other suit between the parties over the same subject matter, yet this is not true. She also contends that the Plaintifi lacks locus standi, ownership of the suit property having been conclusively declared in her favour, since a party divested of proprietary interest cannot sustain proceedings premised upon rights already judicially extinguished. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4396/eng@2026-07-13 2

page 2 of 6

7. The 2nd Defendant also filed a replying afidavit sworn by its Legal Oficer, one Patrick N. Muriithi. He avers that judgement in ELC Case No. 384 of 2010, which recognized the 1st Interested Party as owner of the suit property, is still valid and binding upon the parties thus the Plaintifi has no locus standi over the said suit property. He acknowledges that the actions complained of by the Plaintifi, of laying water and sewerage pipes, fall within the ambit of the 2nd Defendant’s functions and the same follow approved development and physical planning layouts issued by the 1st Defendant. He also contends that the 2nd Defendant has no proprietary interest in the suit property and that the issue of ownership is res judicata. 8. The 3rd Defendant and the 2nd Interested Party did not file responses. 9. The application was canvassed by way of written submissions. Submissions 10. The Plaintifi submits that he has met the principles for the grant of orders of temporary injunction and urges the court to award the orders as sought. 11. On its part, the 1st Defendant submits that while the Plaintifi’s claim is founded on an alleged Letter of Allotment and a Sale Agreement, it is settled law that a Letter of Allotment does not confer proprietary rights. To this end, it relied on the case of Torino Enterprises Limited v Attorney General [2023] KESC 79 (KLR). It reiterates that in the absence of any valid registration, the suit property remains unalienated public land vested and that there is no proof that excavation activities were undertaken by or on its behalf, thus, no prima facie case has been established. 12. It also submits that, if any monies were paid in acquiring the Plaintifi’s alleged interest, such loss is financial and compensable through damages, it does not involve any irreplaceable interest. Further, that granting the injunction sought would prejudice the public by stalling development initiatives on the basis of a speculative claim. It urges the Court to maintain status quo as the balance of convenience also tilts in favour of public interest. 13. The 2nd Defendant insists that the Plaintifi’s pleadings indicate that they have substantially raised the same issues for determination in this suit as they did in Nairobi ELC 384 OF 2010, thus the matter is res judicata and the Plaintifi does not meet the required principles for the grant of an injunction as set out in Giella v Cassman Brown & Co Ltd (1973) E.A. 360. 14. The 1st Interested Party also insists that the suit is res judicata and that the Plaintifi cannot escape the said jurisdictional bar by introducing the Defendants as parties. She urges for the dismissal of the application and relies on the following authorities: Henderson v Henderson (1843) 67 ER 313; John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), ET v Attorney-General & another, [2012] eKLR; Geofirey Kipkoech v Insurance Regulatory Authority & 2 others [2021] KEHC 4419 (KLR); Kenya Re Insurance Corporation vs Tom Okello Obondo [1998] KEHC 276 (KLR); and Sehmi & another v Tarabana Company Limited & 5 others [2025] KESC 21 (KLR). Analysis and Determination 15. I have considered the instant Notice of Motion application, respective afidavits, 1st Interested Party’s Notice of Preliminary Objection including rivalling submissions, the only issue for determination is whether the Plaintifi is entitled to Orders of interlocutory injunction restraining the Defendants from the suit property and if the Notice of Preliminary Objection is merited. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4396/eng@2026-07-13 3

page 3 of 6

16. In line with the principles on injunctions as set out in the case of Giella vs Cassman Brown & Company Ltd (1973) EA 358 including the definition of a prima facie case as espoused in the decision of Mrao Ltd vs First American Bank Ltd (2003) KLR 125, I will proceed to decipher whether the Plaintifi has established a prima facie case as against the Defendants including Interested Parties to warrant the orders of interlocutory injunction as sought. 17. The Plaintifi, who represents Njonjo Kibera and Agnes Wairimu Kibera, pursuant to their donated Power of Attorney, seeks a temporary injunction restraining the Defendants from interfering with Plot No. 239 Umoja Innercore Sector V Infill, pending the hearing and determination of the suit. He contends that his principals purchased the suit property from the 2nd Interested party and that a dispute over ownership, determined by Hon. Justice Okong’o (as he then was), vide Nairobi ELC Case No. 384 of 2020, was pending at the Court of Appeal. He alleges that the Defendants had trespassed on the suit property and were laying pipes for sewerage and water. 18. The 1st Defendant contends that a Letter of Allotment does not confer title, while the 2nd Defendant insists that it is the statutory water and sewerage provider, and the activities complained of relate to utility infrastructure undertaken pursuant to approved plans by the 2nd Defendant. 19. The 1st Interested Party raised a Preliminary Objection on the basis that the suit is barred by section 7 of the Civil Procedure Act because the issue of ownership of the suit property was heard and determined vide judgement dated 20th June 2019 in Nairobi ELC Case No.384 of 2020. 20. The Court takes judicial notice of the fact that on 10th July 2026, the Court of Appeal rendered judgement in Civil Appeal No.429 of 2019. Hon. Judge D.K Musinga stated as follows with Hon. Judge Mumbi Ngugi and Hon. Judge P. Nyamweya concurring and upholding the judgement in Nairobi ELC Case No.384 of 2020 : “ In the end, I am satisfied that the learned judge properly evaluated the evidence and correctly applied the law in holding that the Respondent’s earlier equitable interest prevailed over that of the Appellants.” 21. In the foregoing, noting that the Court of Appeal made a determination on the ownership of the suit property by upholding the judgement in Nairobi ELC 384 of 2020, in which the Learned Judge had found that the said suit property belongs to the 1st Interested Party and not the Plaintifi, on this point alone, I find that the Plaintifi has not demonstrated a prima facie case to warrant the orders of interlocutory injunction as sought against the Defendants and Interested Parties. 22. In further relying on the case of Nguruman Ltd. Vs. Jan Bonde Nielsen (2014) eKLR, where the Court of Appeal held that in instances where a party fails to establish a prima facie case, the Court need not proceed to make a determination of the other two limbs on injunction, I will decline to deal with the said two limbs. 23. As to whether the instant Notice of Preliminary Objection is merited, I wish to refer to the case of Oraro v Mbaja [2005] eKLR, where the Court held inter alia: “ A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4396/eng@2026-07-13 4

page 4 of 6

adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed." 24. Res judicata is anchored on Section 7 of the Civil Procedure Act which provides that: “ No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” 25. The Supreme Court stated as follows in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR): “ (317) The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings….There are conditions to the application of the doctrine of res judicata: i. the issue in the first suit must have been decided by a competent Court; (ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and (iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title...” 26. In this instance, the Plaintifi was litigating on behalf of Peter Njonjo Kibera and Agnes Wairimu Njonjo due to a Power of Attorney. Further, in his Plaint the Plaintifi had sought to be declared owner of the suit property or for Interested Party to be declared so, based on the judgement from the Court of Appeal. He also sought for Orders of injunction to restrain the Defendants from the suit property and to be compensated for the said suit property. 27. The 1st Interested Party had raised a Preliminary Objection insisting that ownership of the suit property had already been determined in ELC Case No. 384 of 2020 by Justice Okongo (as he then was). The Plaintifi insisted that the matter was still pending Appeal in Civil Appeal No. 429 of 2019. As noted above, on 10th July 2026, the Court of Appeal rendered its judgement in Civil Appeal No. 429 of 2019, where it upheld Justice Okongo’s (as he then was) decision in Nairobi ELC Case No. 384 of 2020. This in essence means that the Plaintifi is not the owner of the suit property. On perusal of the Court of Appeal decision, I note the Plaintifi’s principals were parties in the said suit and they had sued the Interested Parties and some of the Defendants herein. I further note that in the instant suit, the Plaintifi came in as a holder of a Power of Attorney and the only issue he added was to be compensated for the suit property. However, the dispute over the suit property was already previously and substantially in issue between the same parties or parties litigating under the same title, with two Courts making a determination that the said land was owned by the 1st Interested Party. In the circumstances, while associating myself with the decisions quoted, I find that this suit is indeed res judicata Nairobi ELC Case No. 384 of 2020 and Civil Appeal No. 429 of 2019. 28. In the foregoing, I find the instant Notice of Motion application unmerited and will dismiss it. I however find the 1st Interested Party’s Notice of Preliminary Objection merited and will proceed to strike out the Plaint and award costs to the 1st and 2nd Defendants including the 1st Interested Party only. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4396/eng@2026-07-13 5

page 5 of 6

DATED SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF JULY, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ms Nafuna for Dida for 1st Defendant Kent Omondi for 1st Interested Party Ms Munyua holding brief for Oson for Plaintifi Gathoni for 2nd Defendant /Respondent Court Assistant: Vena https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4396/eng@2026-07-13 6

page 6 of 6