Ruaka Estate Limited v Estate of Stephen Murathi & 3 others (Environment and Land Case E090 of 2025) [2026] KEELC 4517 (KLR)

thereof, namely Land Title Numbers Kiambaa/Ruaka/3656, Kiambaa/Ruaka/3657, and Kiambaa/Ruaka/3658, pending the hearing and determination of this Suit. 4. That the costs of this Application be provided for. 3. The Application is based on the grounds on the face of it and supported by the Afidavit sworn on 30/05/2025 by Loise Njoki Murathi a director/shareholder of the Plaintifi as evidenced by the oficial company search (Form CR-12) annexed as “LNM-1”. 4. The Deponent averred that the Plaintifi has always been the registered proprietor in quiet and uninterrupted possession of the suit property, Land Reference Number Ruaka/Kiambaa/884, until the recent discovery of a fraudulent and illegal alteration of the land register. Specifically, the Deponent stated that ownership was surreptitiously changed from the Plaintifi's name to the joint names of herself, Simon Murathi, and the 2nd Defendant as trustees for the 3rd Defendant, who was then a minor. This material change in the register is captured in the Green Card annexed as “LNM-2”. 5. The Deponent further deponed that the Plaintifi company never passed any board resolution authorizing such a transfer, nor did she ever consent to or participate in the alleged transaction. Following this fraudulent transfer, the property was further subjected to an irregular subdivision into three parcels, namely Kiambaa/Ruaka/3656, 3657, and 3658, without any legal authority or the Deponent's knowledge. These subdivisions and the current status of the land are confirmed by the Mutation Form and Certificates of Oficial Search annexed as “LNM-3A-D”. 6. The Deponent expressed an apprehension that the 3rd Respondent, having attained the age of majority, is now in a position to alienate, charge, or dispose of the suit property to innocent third parties. Such an occurrence would cause the Plaintifi irreparable harm that cannot be compensated by an award of damages and would efiectively render the main suit an academic exercise. Despite having lodged a formal complaint at the police station, as evidenced by the O.B. Number annexed as “LNM-4”, the Deponent maintained that only the intervention of this Honourable Court can preserve the subject matter of the suit. Consequently, she averred that the Plaintifi has a prima facie case with high chances of success and that the balance of convenience tilts in favour of maintaining the status quo to ensure the ends of justice are met. 7. The Application is opposed by the 2nd and 3rd Defendant/Respondents. The 2nd Defendant/ Respondent filed a Replying Afidavit sworn by Pauline Wanjue Murathi on 24/10/2025. On the part of the 3rd Defendant, he filed Grounds of Opposition dated 30/06/2025 and a Replying Afidavit sworn on 22/07/2025 by Simon Ngure Murathi. Additionally, the 3rd Defendant filed another Replying Afidavit sworn on 23/01/2026. 8. Pauline Wanjue Murathi 2nd Respondent and Co-Administrator of the Estate of Stephen Murathi Muiruri, as evidenced by the Grant of Letters of Administration Intestate annexed as “PWM-1” opposed the Application. The 2nd Respondent depones that the Application is a gross abuse of the Court process, premised on a deliberate and material non-disclosure of previous litigation involving the same subject matter. Specifically, the Deponent reveals the existence of Thika ELC Petition No. E008 of 2022, where the Applicant sought similar declarations regarding the nullity of titles for Kiambaa/ Ruaka/3656, 3657, and 3658, which suit was dismissed on 3/06/2024 for lack of capacity, as shown in the Ruling annexed as “PWM-2”. 9. Additionally, the Deponent cites Kiambu High Court Civil Suit No. E029 of 2021 (O.S), where the Applicant had unsuccessfully attempted to have the same properties declared matrimonial property, a suit that was also dismissed on 7/07/2024, as per the Ruling annexed as “PWM-3”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4517/eng@2026-07-13 2

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10. The 2nd Respondent further asserts that the Applicant is approaching this Honourable Court with unclean hands and is approbating and reprobating by presenting contradictory positions. While the Applicant now claims the transfers were fraudulent and unknown to her, the 2nd Respondent points to the Applicant’s own Supporting Afidavit in the 2021 Originating Summons, annexed as “PWM-4”, wherein the Applicant admitted knowledge of the subdivisions and the registration of the parcels in the names of herself, the Deceased, and the 2nd Respondent as far back as 2010. The Deponent contends that the Applicant’s claim of shocking discovery of fraud is a fabrication designed to circumvent the dismissals of her previous suits. 11. Furthermore, the 2nd Respondent argues that the Applicant’s own exhibits, specifically the Mutation Form, appear to bear the Applicant’s execution, thereby belying the claim that the subdivisions were conducted without her knowledge or consent. The Deponent maintains that by engaging in blatant forum shopping and failing to disclose the prior determinations of the Court on these parcels, the Applicant has failed to establish a prima facie case with a probability of success. Consequently, the 2nd Respondent depones that the balance of convenience does not favour the granting of injunctive relief to a party who has misled the Court, and prays that the Application be dismissed with costs. 12. In a rejoinder the Applicant filed a further afidavit sworn by Loise Njoki Muratha in direct response to the 2nd Respondent’s Replying Afidavit. The Deponent clarifies that the Plaintifi, Ruaka Estates Limited, is a distinct legal personality under the Companies Act, 2015, and as such, it cannot be prejudiced or bound by previous personal litigations instituted by the Deponent in her individual capacity. She asserts that the 2nd Respondent’s attempt to invoke the doctrine of res judicata is legally misplaced, as there is no identity of parties or issues, particularly since Thika ELC Petition No. E008 of 2022 and Kiambu HCCC No. E029 of 2021 (O.S) were dismissed on technical grounds of capacity and jurisdiction, respectively, without any determination on the substantive merits of the fraud or corporate ownership. 13. Regarding the allegations of non-disclosure and forum shopping, the Deponent maintains that this is the first instance the corporate entity itself has moved the Court to vindicate its proprietary rights against fraudulent alienation. She explains that while she may have had inklings of irregularities in the past, the full scale of the fraud was only oficially confirmed following a formal review of the company's property portfolio and the acquisition of certified copies of the impugned titles and transfer instruments. These crucial documents, which first alerted the company to the unauthorized subdivisions and transfers, are the oficial searches already annexed as “LNM-3B-D” in the Supporting Afidavit dated 30/05/2025. 14. The Deponent further depones that any previous knowledge she might have had as an individual does not equate to corporate consent for fraudulent dealings, nor does it cure the lack of mandatory Board resolutions for the disposal of company assets. She challenges the validity of the mutation forms, asserting they were part of a wider fraudulent scheme that can only be properly interrogated through oral evidence at trial. The Deponent concludes that because fraud suspends the clock of limitation under Section 26 of the Limitation of Actions Act, and since the company has established a clear prima facie case for the preservation of its assets, it is only just and equitable for the Court to grant the orders sought to prevent the permanent dissipation of the suit properties. 15. The 3rd Defendant’s opposition to the Application dated 30/05/2025 is anchored on the jurisdictional argument that this Honourable Court is functus oficio in respect of the parcels known as Kiambaa/ Ruaka/3657 and Kiambu/Ruaka/3658. The Respondent contends that the Court already rendered its finality on the matter via the Ruling of 4/11/2021 and the subsequent dismissal of a review application on 7/09/2022. Consequently, the 3rd Defendant asserts that the current Application is strictly barred https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4517/eng@2026-07-13 3

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by the doctrine of res judicata under Section 7 of the Civil Procedure Act, the issues having been conclusively determined in Thika ELC Misc. No. 40 of 2020 and further litigated in Thika ELC Petition No. E008 of 2022 and Kiambu HCFOS No. E029 of 2021. 16. Furthermore, the 3rd Defendant depones that the Application ofiends the sub-judice rule under Section 6 of the Civil Procedure Act, as the substantial questions of law and fact are currently pending adjudication before the Court of Appeal in Nairobi COACA No. E641 of 2022. It is the Respondent’s position that this Court is efiectively divorced of jurisdiction to entertain the suit while the appellate proceedings remain live. Additionally, the Respondent argues that the prayers for declarative relief and rectification of the register regarding titles issued as far back as 5/03/1998 are caught up by the statute of limitation, specifically Section 7 of the Limitation of Actions Act, and are thus legally stale. 17. Additionally, the 3rd Respondent filed a Replying Afidavit sworn on 22/07/2025. Through the Replying Afidavit, the 3rd Respondent, SIMON NGURE MURATHI, strenuously opposes the Application, characterizing it as a gross abuse of the Court process designed to circumvent valid, subsisting Court orders. The Deponent provides a historical account of the title, noting that the property was transferred to trustees for his benefit as far back as 1998. He reveals that this Honourable Court, in Thika ELC Misc. 040 of 2020, already determined that the properties were held in trust for him and issued vesting orders compelling the transfer to his name, as shown in the Ruling annexed as “SNM-001”. He further notes that a review application filed by Loise Njoki Murathi was dismissed, and subsequent attempts to litigate the matter as a matrimonial dispute in Kiambu HCFOS No. E029 of 2021 and as a fraud claim in Thika ELC Petition No. E008 of 2022 were both struck out, with the Rulings annexed as “SNM-003” and “SNM-004” respectively. 18. The Respondent contends that the matter is res judicata and functus oficio, further ofiending the subjudice rule due to a pending appeal in COACA No. E641 of 2022 (annexed as “SNM-005”). He denies the allegations of fraud, arguing that the claim is statute-barred under Section 7 of the Limitation of Actions Act, having arisen over 27 years ago. Crucially, he asserts that Loise Njoki Murathi was an active participant in the 2010 subdivision, having executed mutation forms and paid survey fees, as evidenced by the Land Control Board consent and survey receipts annexed as “SNM-007” and the surveyor’s application annexed as “SNM-008”. 19. He points to a selective and malicious prosecution, noting that an identical trust arrangement exists for property Kiambaa/Muchatha/T.328 (annexed as “SNM-009”) for the benefit of the Applicant's son, which remains unchallenged, thereby proving the suit is driven by an ulterior motive to settle scores rather than genuine legal grievance. 20. In the final analysis, the 3rd Defendant characterizes the instant Application as a blatant abuse of the Court process through the unconscionable multiplicity of suits over a single subject matter, citing the precedent in Muchanga Investment Limited vs. Safaris Unlimited (Africa) Ltd & 2 Others (2009) KLR. The Respondent maintains that the Application is a tactical attempt to circumvent existing Court Rulings without obtaining a stay of execution from the Court of Appeal, and therefore, the Applicant is undeserving of the equitable reliefs sought. 21. In response to the Replying Afidavit filed by the 3rd Defendant, the Applicant swore a Replying Afidavit on 27/08/2025 by Loise Njoki Murathi and averred that the 3rd Defendant’s reliance on the doctrine of res judicata is fundamentally fiawed, as the Plaintifi, Ruaka Estates Limited, is a distinct legal entity that has never been a party to any of the previous proceedings cited. To demonstrate the company’s independent corporate existence and active status, the Deponent has produced tax receipts confirming that the company has its own interests capable of being ventilated before this Honourable Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4517/eng@2026-07-13 4

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22. The Deponent asserts that the threshold for res judicata under Section 7 of the Civil Procedure Act has not been met, as there is no identity of parties. She further depones that the core issue of whether the transfers were fraudulent has never been interrogated on its merits. The Deponent categorically denies the alleged transfers, stating they were irregular and conducted in violation of the Companies Act, 2015, which requires specific board resolutions and sanctioning by members for the disposal of corporate assets. 23. In response to the 3rd Defendant’s allegations regarding an appeal, the Deponent points out that the 3rd Defendant failed to produce any Record of Appeal as an annexure to his Afidavit, rendering his averments in that regard void for want of evidence. Furthermore, she argues that the 3rd Defendant’s attempt to challenge factual issues in a Replying Afidavit is procedurally untenable, as such matters should be addressed through a formal Defence and tested via direct oral evidence at trial pursuant to Section 63 of the Evidence Act. 24. On the issue of limitation, the Deponent reiterates that under Section 26 of the Limitation of Actions Act, fraud acts as an exception to statutory bars, and the period only begins to run upon discovery. She maintains that the 3rd Defendant’s afidavit is merely a narration of historical family disputes that do not absolve the perpetrators of the alleged corporate fraud. Consequently, the Deponent avers that the Plaintifi has established a prima facie case with a probability of success and that the preservation of the suit property's substratum is necessary to prevent irreparable loss, as the corporate entity’s constitutional right to access to justice under Articles 48 and 50 must be upheld. 25. Before the Application was determined the 3rd Defendant respondent filed the 2nd Application dated 23/07/2025 brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law seeking the following: 1. Spent. 2. That this Honourable Court be pleased to strike out the Plaint dated 30th May 2025 in its entirety. 3. THAT the costs of this Application be provided. 26. The Application is supported by the Afidavit of SIMON NGURE MURATHI, the 3rd Respondent herein. He depones that he is intimately acquainted with the facts of this matter and is competent to testify to the protracted history of litigation over the suit properties. He states that the original property, Kiambaa/Ruaka/884, underwent various proprietary changes until 5/03/1998, when it was transferred to trustees to be held in express trust for his benefit. This trust arrangement was further solidified upon the subdivision of the land into parcels Kiambaa/Ruaka/3656, 3657, and 3658. 27. The Deponent further avers that upon the trustees' refusal to transfer the properties to him, he moved this Honourable Court in Thika ELC Misc. Application No. E040 of 2020. He depones that by a Ruling dated 4/11/2021, the Court upheld the trust and issued vesting orders in his favour, a copy of which is annexed and marked "SNM-001". He points out that a subsequent application for review by the Plaintifi was dismissed on 7/09/2022, and he annexes both the primary Ruling and the Review Ruling as a bundle marked "SNM-002". 28. He further depones that the Plaintifi’s suit is a fiagrant violation of the sub judice rule, as there is a pending appeal in Civil Appeal No. E641 of 2022 (annexed as "SNM-003") where no stay of execution has been granted. He highlights that previous attempt to litigate this matter in other fora, specifically https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4517/eng@2026-07-13 5

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Kiambu HCFOS No. E029 of 2021 and Thika ELC Petition No. E008 of 2022, were struck out for being an abuse of the Court process, as evidenced by the Rulings annexed and marked "SNM-004". 29. Regarding the issue of limitation, the Deponent states that the suit is statutorily barred under Section 7 of the Limitation of Actions Act, as the registration complained of occurred over twenty-seven years ago. He depones that any allegation of fraud is an afterthought, as the Plaintifi’s sole surviving shareholder, Loise Njoki Murathi, personally facilitated the subdivision of the property in 2010. He supports this by annexing the Land Control Board consent and mutation forms marked "SNM-005", and an afidavit from the licensed surveyor, Joel Odhiambo, marked "SNM-006", which confirms her active participation and payment of fees. 30. The Deponent avers that the suit is a selective and mala fide collateral attack. He depones that the Plaintifi has deliberately failed to challenge an identical trust arrangement over parcel Kiambaa/ Muchatha/T.328, which is held for the benefit of Harrison Muhu Murathi. He annexes the Green Card for the said property marked "SNM-007" to demonstrate the identical historical registration. He concludes that the failure to enjoin necessary parties and the selective nature of this litigation prove that the Plaintifi is using the Court machinery for ulterior motives, rendering the Plaint incurably defective and fit for striking out. 31. In response the Plaintifi/Respondent filed a Replying Afidavit sworn by Loise Njoki Murathi, a Director of Ruaka Estates Limited on 7/08/2025. She depones that the Defendant’s Application is fatally defective and a gross abuse of the Court process, primarily because it violates the mandatory provisions of Order 2 Rule 15(2) of the Civil Procedure Rules. She states that the Applicant has impermissibly relied on an afidavit replete with factual assertions and documentary evidence to support an application for striking out under sub-rule (1)(a), which according to her is a matter of law to be determined strictly on the face of the pleadings. By introducing such extensive material, she depones that the Applicant is attempting to conduct a prohibited trial by afidavit and has failed to concisely state the grounds for the application as required by law. 32. The Deponent further avers that the Plaintifi, Ruaka Estates Limited, is a distinct legal persona with a separate identity from its shareholders and directors. She categorically denies the Applicant's assertions regarding res judicata, deponing that there has never been any prior suit or judicial determination involving Ruaka Estates Limited and the Defendants. 33. To demonstrate the company's active status and independent standing, she annexes a Company Search (CR-12) and a Kenya Revenue Authority (KRA) Tax Compliance Certificate, collectively marked "LNM-1". She points out that a perusal of the various cases cited by the Applicant reveals that the Plaintifi was not a party to those proceedings, and any attempt to equate those matters to the current suit would require a detailed interrogation of facts and evidence, which is beyond the scope of a summary striking-out application. 34. Regarding the allegation that the suit is statute-barred, the Deponent states that the claim is founded on manifest fraud, which was only discovered recently. She depones that under the Limitation of Actions Act, time begins to run from the date of discovery of the fraud rather than the date of the act itself. To support the timeline of discovery, she annexes a Police Abstract and a corresponding letter from the Directorate of Criminal Investigations (DCI) marked "LNM-2", which she states confirms that the suit was filed within the prescribed statutory period. She concludes by stating that the issues raised by the Applicant are substantive matters of fact that necessitate a full trial, and she prays that the Application be dismissed with costs. 35. Parties canvassed the Applications by way of written submissions. The Plaintifi filed their submissions dated 10/09/2025 and the 3rd Defendant filed their submissions dated 18/03/2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4517/eng@2026-07-13 6

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Plaintifi ’s Submissions 36. In their submissions the Plaintifi submits that the instant Application is a necessary intervention for the grant of urgent preservatory relief, specifically a quia timet injunction and a temporary injunction. These orders are sought to restrain the Respondents from alienating, subdividing, or in any way dealing with the suit property until the substantive dispute is determined. Relying on the judicial reasoning in Ali & Another v Ali (Civil Case 7 of 2023) [2023] KEHC 971 (KLR), the Plaintifi argues that a quia timet injunction is a specialized remedy intended to forestall an imminent wrong before it occurs. It is the Plaintifi’s contention that all the jurisdictional prerequisites for such an order including the existence of an actual threat and the likelihood of irreparable injury have been met. 37. On the establishment of a prima facie case with a probability of success, the Plaintifi invokes the foundational test set out in Giella v Cassman Brown & Co. Ltd. [1973] EA 358. It is submitted that the Plaint and the Supporting Afidavit disclose serious and triable allegations of irregularity and nascent fraud regarding the alienation of land parcel Kiambaa/Ruaka/884. The Plaintifi maintains that these are not mere bald assertions but are backed by contemporaneous documents that establish a bona fide cause of action. 38. In response to the 3rd Respondent’s claims of res judicata and functus oficio, the Plaintifi submits that such defenses are legally untenable. It is argued that Ruaka Estates Limited is a distinct corporate entity that was not a party to the previous proceedings cited by the Respondent; hence, those Judgments cannot bind a non-party. Regarding the alleged pending appeal, the Plaintifi submits that the 3rd Respondent has failed to produce a Memorandum of Appeal. Relying on the decision in HA v LB Civil Appeal No. 188 of 2021 (as cited in Kenya Human Rights Commission & 8 Others v Nchebere [2025] KEHC 2829 (KLR)), the Plaintifi asserts that a Notice of Appeal is merely an expression of intention and does not constitute a competent appeal that could oust this Court’s jurisdiction. 39. The Plaintifi further submits that it will sufier irreparable harm if the orders are not granted, as land is a unique commodity for which damages are an inadequate remedy. The Plaintifi has relied on the decision in Nguruman Ltd v Jan Bonde Nielsen & Others [2014] eKLR, where the Court emphasized the dificulty of recovery once land is transferred to third parties. The Plaintifi notes that the Respondents, having attained majority age, are now capable of disposing of the property, which would dissipate the substratum of the suit. 40. The Plaintifi submits that the balance of convenience tilts in favour of granting the injunction to preserve the status quo. Referring back to the principles in Giella v Cassman Brown, the Plaintifi argues that while the Respondents will sufier no prejudice by the temporary freezing of dealings, the Plaintifi faces permanent loss if the land is alienated. Consequently, the Plaintifi prays that the Court finds the Application meritorious and grants the injunctive prayers as sought. 3rd Defendant’s Submissions 41. The 3rd Defendant submits that the Application dated 30/05/2025 seeking injunctive relief over Land Title No. Kiambaa/Ruaka/884 and its resultant subdivisions is devoid of merit and represents a veiled attempt to relitigate settled matters. He depones to the historical background of the property, stating that the parent title was transferred to trustees for his benefit as far back as 1998 and was subsequently subdivided in 2010. He submits that this Honourable Court, in Thika ELC Misc. Application No. 040 of 2020, issued a definitive Ruling on 4th November 2021 confirming the trust and ordering the transfer of the properties to him orders which remain valid and binding following the dismissal of a review application and the withdrawal of a subsequent appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4517/eng@2026-07-13 7

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42. Regarding the legal threshold for an interlocutory injunction, the 3rd Defendant invokes the sequential principles established in Giella v Cassman Brown & Co. Ltd [1973] EA 358. Citing the Court of Appeal in Nguruman Ltd v Jan Bonde Nielsen & 2 Others [2014] eKLR, he submits that these conditions are consecutive, and the failure to establish a prima facie case precludes the need to consider other limbs. He argues that the Applicant has failed to establish a prima facie case as defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, noting that an injunction cannot preserve a title; Kiambaa/Ruaka/884 that ceased to exist upon subdivision fifteen years ago. Furthermore, he submits that the Applicant’s claim is fatally undermined by the doctrine of limitation and the failure to plead the date of discovery of the alleged fraud, especially since the Plaintifi's shareholder facilitated the very transactions now being impugned. 43. On the second limb of irreparable harm, the 3rd Defendant submits that the Applicant’s claim is purely proprietary and commercial in nature, which is quantifiable and compensable in damages. He argues that a party cannot claim irreparable harm simply by filing a fresh suit to forestall the enjoyment of a successful party’s rights under subsisting Court orders. He asserts that the Application is not truly preservatory but is an improper attempt to suspend existing judicial orders without setting them aside. 44. The 3rd Defendant further submits that the balance of convenience tilts decisively against the Applicant. He argues that it would be contrary to the orderly administration of justice for the Court to undermine its own undisturbed orders in a fresh suit. He characterizes the litigation as an abuse of the Court process, citing Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, and points out that similar attempts to reopen these concluded questions have already been struck out in previous suits. 45. Drawing on the discretionary approach in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, the 3rd Defendant submits that injunctive relief exists to protect established legal rights, not speculative claims. Since the Applicant has demonstrated neither current registered title nor actual possession, he concludes that the interests of justice and the need to uphold the finality of Judgments necessitate the dismissal of the Application with costs. Analysis and Determination 46. Having carefully considered the pleadings, the rival afidavits, and the written submissions preferred by the parties, the following consolidated issues emerge for the Court's determination: i. Whether the 1st Application for a quia timet injunction and temporary injunction satisfies the tripartite test established in Giella v Cassman Brown & Co. Ltd [1973] EA 358, including the preliminary equitable question of whether the Applicant approaches the Court with clean hands; ii. Whether the doctrine of res judicata under Section 7 of the Civil Procedure Act, Cap. 21, and/ or the sub judice rule under Section 6 thereof, bars the present suit having regard to the separate legal personality of the Plaintifi company; and iii. Whether the 2nd Application for the striking out of the Plaint is competent under Order 2 Rule 15 of the Civil Procedure Rules, and whether it discloses a proper basis for summary dismissal of the suit on the face of the pleadings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4517/eng@2026-07-13 8

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47. The bedrock principles governing the grant of an interlocutory injunction in this jurisdiction are well settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court of Appeal for East Africa expressed the governing test in terms that have endured over five decades: “ 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 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." 48. However, the sequential nature of these conditions was emphatically restated in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, where the Court of Appeal held that the applicant must satisfy all three requirements cumulatively, describing them as “ … three pillars on which rests the foundation of any order of injunction, interlocutory or permanent." 49. The failure at the first pillar making it unnecessary and indeed improper to proceed to the others. The meaning of a prima facie case with a probability of success was further refined by the same Court in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, where it was stated that “ A prima facie case in a civil application includes but is not confined to a genuine and arguable case. It is a case which, on the material presented to the Court, a tribunal properly directing itself will 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." 50. An injunction being a remedy in equity, the Court must further satisfy itself that the applicant comes to equity with clean hands. As Mohammed Muigai LLP observed in its celebrated analysis of Giella, the fifty-year-old principles do not exhaust the equitable inquiry, for “ An injunction being a relief in equity, the Court would have to be concerned about certain characteristics of the applicant such as whether he has come with clean hands, whether he has been indolent or vigilant, whether he has disclosed all that is material." 51. It is against this composite framework that the 1st Application falls to be assessed. 52. The Plaintifi avers that as a duly incorporated company, Ruaka Estates Limited is the registered proprietor of Land Title Number Kiambaa/Ruaka/884, and that the register was fraudulently and surreptitiously altered to refiect the suit property in the names of trustees for the benefit of the 3rd Defendant, without any board resolution sanctioning such a transaction as required by the Companies Act, 2015. The foundational proposition underlying the Plaintifi's response to the res judicata and non-disclosure objections is the doctrine of separate corporate personality, which was given its most authoritative expression in the House of Lords decision of Salomon v Salomon & Co. Ltd [1897] AC 22, where it was afirmed that “ Once a company is incorporated under the Companies Act, it becomes a separate legal entity, regardless of how few or how many shareholders it has." 53. On the authority of that doctrine, the Plaintifi contends and with legal correctness that since Ruaka Estates Limited was not a party to the proceedings in Thika ELC Misc. No. 40 of 2020, Thika ELC https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4517/eng@2026-07-13 9

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Petition No. E008 of 2022, or Kiambu HCFOS No. E029 of 2021, those proceedings cannot bind it. Section 7 of the Civil Procedure Act, Cap. 21 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." 54. The element of same parties is therefore a sine qua non for the operation of the bar. Since Ruaka Estates Limited was demonstrably absent from all the prior proceedings, the doctrine of res judicata as pleaded cannot technically bite. However, the Court notes the serious concern raised by the 2nd Respondent that the Plaintifi's sole surviving director, Loise Njoki Murathi, in her Supporting Afidavit in Kiambu HCFOS No. E029 of 2021, admitted to knowledge of the subdivisions and the registration of the parcels as far back as 2010, and that the mutation forms appear to bear her execution. 55. Furthermore, the Plaintifi's application is supported by the same deponent who was a party in all the prior proceedings. Courts have been vigilant in guarding against what Majanja J aptly described as the strategy of “ Litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the Court" — a warning issued in E.T. v Attorney General & Another [2012] eKLR. The Court must therefore examine whether the corporate veil is being deployed not as a genuine assertion of corporate rights but as a litigation stratagem to achieve a difierent result through a surrogate. 56. The 3rd Respondent urges the Court to decline jurisdiction on grounds that the matter is sub judice by reason of the pending Civil Appeal No. E641 of 2022 before the Court of Appeal. Section 6 of the Civil Procedure Act provides the bar against the trial of a suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties pending in a Court of competent jurisdiction. The same analysis on identity of parties that defeats the res judicata argument equally undermines the sub judice objection Ruaka Estates Limited is not a party to the pending appeal, and the matters agitated by the individual litigants in that appeal cannot be said to be the same as the corporate fraud claim now ventilated. 57. On limitation, the 3rd Respondent relies on Section 7 of the Limitation of Actions Act, arguing that the relevant transactions took place over 27 years ago. The Plaintifi invokes Section 26 of the same Act, which provides that in cases of fraud the limitation period runs from the date of discovery rather than the date of the act. This Court agrees that whether fraud was discovered recently or whether, as the Respondents allege, the deponent had full knowledge of the transactions as far back as 2010 is a matter that cannot be resolved on afidavit evidence and requires oral examination at trial. 58. On the question of whether the pending Notice of Appeal divests this Court of jurisdiction, the Plaintifi correctly relies on the principle articulated in HA v LB Civil Appeal No. 188 of 2021 as cited in Kenya Human Rights Commission & 8 Others v Nchebere [2025] KEHC 2829 (KLR), that a Notice of Appeal is merely an expression of intention to appeal and does not constitute a competent appeal capable of ousting the jurisdiction of a Court of first instance. Critically, no stay of execution was obtained in the appellate proceedings, and the injunctive orders now sought by the Plaintifi are directed https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4517/eng@2026-07-13 10

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at preserving the suit property pending determination of this suit not at suspending the execution of the vesting orders made in ELC Misc. No. 40 of 2020. 59. A quia timet injunction, as the Latin phrase conveys, is a preemptive remedy sought in anticipation of a threatened wrong. Black's Law Dictionary 10th Edition defines it as "an injunction granted to prevent a future probable injury, rather than to correct a past injury." Its grant requires proof of an actual and proximate threat of harm, not speculative or remote apprehension. The Plaintifi's apprehension is that the 3rd Respondent, having attained majority, may alienate the subdivided parcels to an innocent third party, thereby defeating any decree in the main suit. This apprehension is not unfounded fear; it is grounded in the fact that the 3rd Respondent holds registered title on the face of the register following the vesting orders. The Court is alive to the principle stated in Giella on irreparable harm that where land is concerned, the dissipation of the suit property to third parties can rarely be adequately compensated in damages, since no two parcels of land are identical. 60. At the same time, and as the 3rd Respondent correctly argues, this Court must be cautious against issuing orders that, in their practical efiect, would suspend or frustrate the execution of valid vesting orders made by a Court of competent jurisdiction without the benefit of a challenge through the proper appellate or review channels. The balance of convenience question therefore crystallizes into this: is it more prejudicial to restrain dealings pending a full trial, or to permit alienation which might render the suit a mere academic exercise? On the present state of the record, where there exist colorable but unresolved questions touching on corporate fraud, the suppression of board resolutions, and the authenticity of mutation forms, this Court is inclined to find that the preservation of the subject matter of the suit, pending a full hearing on the merits, is in the interests of justice. 61. The 2nd Application brought under Order 2 Rule 15 of the Civil Procedure Rules seeks the striking out of the entire Plaint. It is trite law, afirmed in a long line of authorities from our Courts, that the power of striking out under Order 2 Rule 15(1)(a) is exercised by the Court on a plain reading of the pleadings, without recourse to extrinsic evidence. As Order 2 Rule 15(2) itself provides, an application under sub-rule (1)(a) that the pleading discloses no reasonable cause of action "shall not be supported by an afidavit." The 3rd Respondent's application is, by his own hand, elaborately supported by a lengthy afidavit replete with documentary exhibits. This renders the application procedurally defective in respect of the ground of no reasonable cause of action. The Court in Madison Insurance Company Limited v Augustine Kamanda Gitau [2020] eKLR reafirmed that striking out is a draconian remedy that must be exercised only in the plainest and most obvious cases. 62. Reading the Plaint on its face, it discloses allegations of unauthorized transfer of corporate property, fraudulent subdivision, and breach of statutory requirements under the Companies Act claims which, in the Court's view, raise triable issues that are far from frivolous or vexatious. The 3rd Respondent's arguments on res judicata, limitation, and sub judice while substantial are pre-eminently matters to be pleaded as a Defence and tested at trial with the benefit of oral evidence and cross-examination. They cannot be resolved summarily at the striking-out stage, especially where, as here, the issues of identity of parties, date of discovery of fraud, and the corporate nature of the Plaintifi's rights require a full evidential inquiry. Final Disposal Orders 63. Given the foregoing, the Court thus makes the following orders: i. The 1st Application dated 30/05/2025 is partly allowed to the following extent: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4517/eng@2026-07-13 11

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a. Prayer 2 of the 1st Application for a quia timet injunction is granted. The 1st, 2nd and 3rd Respondents, whether by themselves, their agents, servants, employees, or otherwise, are hereby restrained from selling, transferring, charging, leasing, alienating, subdividing, developing, or in any other way dealing with Land Title Numbers Kiambaa/Ruaka/3656, Kiambaa/Ruaka/3657, and Kiambaa/Ruaka/3658 pending the hearing and determination of the suit. For the avoidance of doubt, this order is directed at the preservation of the suit property and shall not be construed as a stay or suspension of the vesting orders issued in Thika ELC Misc. Application No. E040 of 2020; that question is a matter for the appellate process. b. Prayer 3 of the 1st Application for a temporary injunction to subsist pending the hearing and determination of the main suit is granted. ii. The 2nd Application dated 23/07/2025 seeking the striking out of the Plaint is hereby dismissed. iii. Costs of both Applications shall abide the outcome of the main suit, given the complexity and the intertwined issues of principle. iv. Parties are directed to attend Pre-trial Conference on 13/08/2026. It is so ordered. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 13TH DAY OF JULY 2026. ………………………… MOGENI J JUDGE In the presence of:Mr. Wamunyolo for the Plaintifi/Applicant Mr. Ndegwa for the 1st Defendant/Respondent Mr. Gichio for the 2nd Defendant/Respondent Mr. Ndegwa for the 3rd Defendant/Applicant Mr. Melita - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4517/eng@2026-07-13 12

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