Githinji & another v Wairimu & 5 others

JORETH LIMITED ……………………….………. INTERESTED PARTY RULING 1. What is before the Court for determination is the Plaintiffs’ Notice of Motion dated 10th April 2025 and amended on 15th December 2025 in which they seek the following Orders: a) Spent. b) Spent. c) Pending hearing and determination of this suit, an order of temporary injunction be issued restraining the Defendants, either in their personal or official capacities or through the agents, officers or assigns of the 3rd and or 4th Defendants, from proceeding and/or effecting the subdivision of the parcel of land known as LR No.13330/192(IR 129818). d) That costs of this application be borne by the 1 st and 2nd Defendants. ELC LAND CASE NO. E179 OF 2025 Page 2 of 22 Ruling

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e) That this Honourable Court be at liberty to issue further and /or alternative reliefs which it may deem appropriate in the circumstances of the case and in the interest of justice. 2. The application is premised on grounds on its face and on the 1st Plaintiff’s supporting affidavit. He avers that pursuant to an agreement for sale dated 22nd June 2023, together with the 2nd Plaintiff who is his spouse, they purchased half of LR No. 13330/192 (I.R 129818) located at Thome V Estate along Safari Park Avenue from the Interested Party. Further, that the other half of the property had been purchased by the 1st Defendant and her spouse David Wokabi Muriithi (deceased) and they had built their residential house. 3. He claims that before completing the sale, he wrote to the transaction lawyers, Messrs Chege Wainaina & Co. Advocates and required that boundaries be demarcated by the surveyor for the vendor. He claims that subsequently, the said Surveyor presented a subdivision plan with a six (6) meters access road, which formed part of the 1 st and 2nd ELC LAND CASE NO. E179 OF 2025 Page 3 of 22 Ruling

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Defendant’s title in line with the prevailing guidelines of subdivision of the properties within Thome V Estate. He contends that the said plan would have resulted into the demolition of the 1st and 2nd Defendants’ house thus to avoid such a situation, they agreed with the 1 st Defendant and her spouse that each party would cede three (3) meters of the access road, which would form part of the respective titles. He claims that he did so in consideration that their portion has a direct access from Safari Park Avenue, which is a public road. 4. He avers that no sooner had the said plan been effected than the 1st and 2nd Defendants made a ‘U’ turn and lodged a complaint with the Land Registrar for determination and demarcation of the boundary between their two properties, to facilitate subdivision of the suit property into the respective shares. Further, that subsequently, they lodged an application for subdivision of the suit property and on 3 rd April 2025, the Government Surveyor visited it for purposes ELC LAND CASE NO. E179 OF 2025 Page 4 of 22 Ruling

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of demarcation and approved a subdivision plan, which delineated from the existing boundaries previously agreed by parties and that had informed their existing approved developments of two (2) residential houses valued at Kshs. 30 million, and a boundary wall and a sewer line valued at kshs.1.5 million, which now risk being demolished, exposing them to loss and damage. He insists that the new plan does not conform to the rules subsisting in Thome V estate where an access road forms part of the title to the respective properties as opposed to being excised as a public road under the Public Roads Access Act. He also alleges that their previous arrangement was working as the 1st and 2nd Defendants were not prejudiced in any way. Response 5. The application is opposed by the 1 st and 2nd Defendants vide the 1st Defendant’s replying affidavit. She claims that together with her late husband David Wokabi Murithi and one Paul Muchuku Muriuki, they purchased the suit parcel ELC LAND CASE NO. E179 OF 2025 Page 5 of 22 Ruling

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in the year 2001 in half equal portions through their membership in Thome Farmers No. 5 Limited. She explains that thereafter, pursuant to Orders issued in Civil Suit No. 6206 of 1992 - Joreth Ltd v Lewis Kibue & Others, it was declared that the suit property belonged to the Interested Party, which consequently demanded further payment of Kshs. 200,000.00 from each occupant to retain their respective portions. She avers that together with her late husband, they paid the said additional charges while Paul Muchuku Muriuki did not pay thus his portion was sold to the Plaintiffs’, by the Interested Party. 6. She claims that prior to the Plaintiffs taking physical possession of their half portion, they accessed their property via a six-meter access road indicated to them but the Plaintiffs commissioned a surveyor to prepare a subdivision plan reducing the access road to three meters, contravening statutory requirements, which mandate a minimum six meter ELC LAND CASE NO. E179 OF 2025 Page 6 of 22 Ruling

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access road to be surrendered to the Government for public use. 7. She contends that pursuant to discussions held while her husband was still alive, consensus was reached between the parties on a new subdivision plan maintaining and/or incorporating the six-meter access road to be surrendered to the Government for public use. Further, pursuant thereto, in good faith, she demolished her gate, pit latrine, and septic tank, incurred costs to back fill and redirected her sewer system, and contributed Kshs. 100,000.00 towards construction of a boundary wall between the two properties, with the understanding that it would be constructed in line with the agreed subdivision plan maintaining and/or incorporating a six meter access road, which plan was duly lodged with and approved by the Nairobi City County. She explains that despite her compliance, the Plaintiffs insisted on using the sub division plan incorporating three-meter access road, and deliberately built their wall along the ELC LAND CASE NO. E179 OF 2025 Page 7 of 22 Ruling

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disputed boundary, leaving a three-meter access thereby encroaching upon the intended road reserve. 8. Further, that a boundary dispute therefore emerged concerning their respective boundaries and the road on the suit parcel of land, thus she moved the Chief Land Registrar for determination and the Plaintiffs participated in the proceedings where after hearing, the Chief Land Registrar, Nairobi, delivered a Ruling on 10 th June 2024. She confirms that the Chief Land Registrar made a raft of recommendations including a re-evaluation of the boundary. Subsequently, she facilitated a site visit for establishment of the status and beacon re-establishment, an exercise she avers the Plaintiffs willingly participated in. She reiterates that during the exercise, it became apparent that the Plaintiffs had deliberately encroached upon the intended road reserve and constructed illegal structures thereon. 9. She reaffirms that after the exercise, the Official Government Surveyor with the approval of the Chief Land Registrar, ELC LAND CASE NO. E179 OF 2025 Page 8 of 22 Ruling

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Nairobi prepared the final documents for subdivision. She points out that development approvals on their portion of the suit property have always been approved by the relevant authorities based on the sub-division plan with the six-meter access road. Further, that there is no law within Thome V Estate barring road reserve surrender to the Government for public use during sub-division and that they stand to suffer undue prejudice if the application is allowed, while no prima facie case arises from self-induced illegality. She accuses the Plaintiffs of misrepresentation, concealment of material facts and perjury. She also insists that the suit emanates from a boundary dispute that has been fully determined by the Chief Land Registrar and beacons placed. Further, that the Plaintiff did not Appeal the said decision. 10. In response, the Plaintiffs filed a further affidavit sworn by the 1st Plaintiff. He insists that the Plaintiffs were not aware nor involved in the application for subdivision of the suit property made by the 1st and 2nd Defendants after the Ruling ELC LAND CASE NO. E179 OF 2025 Page 9 of 22 Ruling

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by the Land Registrar. He also insists Defendants deviated from their that the 1 st and 2nd initial agreement to maintain the status quo on the boundaries and use of the suit property , to the Plaintiffs’ detriment. He denies that the 1 st Defendant paid a shared construction cost of the boundary wall between the Plaintiffs and the 1st and 2nd Defendants respective portions of the suit property. He confirms that the Constitution and Rules of the Welfare Association of residents of Thome V Estate contemplate that an access road forms part of the title. 11.The 3rd to 5th Defendants and the Interested Party did not oppose the instant application which was canvassed by way of written submissions. Submissions 12.The Plaintiffs submit that they have met the threshold for grant of injunctions set in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358. To this end, they insist that they have established a prima facie case as they have a ELC LAND CASE NO. E179 OF 2025 Page 10 of 22 Ruling

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right to peaceful possession of their developed portion of the suit property based on agreed boundaries, but their right is under imminent threat from a subdivision plan that deviates from those boundaries. Further, that the intended subdivision will result in demolition of developments worth in excess of Kshs. 30,000,000/= including residential structures, boundary wall and sewer infrastructure thereby yielding irreparable injury to them. They also submit that the lower risk of injustice lies in maintaining the status quo and restraining subdivision temporarily because if subdivision proceeds and they ultimately succeed, the harm may be irreversible, while on the other hand, the 1 st and 2nd Defendants have not set out the nature of any loss that they will suffer from awaiting the suit’s determination. On the contention that the suit is an abuse of court process, they submit that equity would favour preserving their until the truth is tested. ELC LAND CASE NO. E179 OF 2025 Page 11 of 22 Ruling position

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13. To buttress their averments, they relied on the following decisions: Kamau v Karanja (Environment & Land Case E030 of 2022) [2022] KEELC 14425 (KLR) (24 October 2022) (Ruling), Margaret Njeri Muiruri (Being the Administrator of the Estate of Joseph Muiruri (Deceased)) v Bank of Baroda (Kenya) Ltd [2001] КЕСА 367 (KLR), Amir Suleiman v Amboseli Resort Limited (Civil Case 1078 of 2003) [2004] КЕНС 2624 (KLR) (Civ) (29 November 2004) (Ruling), Mbuthia v Jimba Credit Finance Corporation & another [1988] eKLR ,and Mutero & another v Tangai & 4 others (Environment and Land Case Civil Suit 59 of 2021) [2023] KEELC 18841 (KLR) (19 June 2023) (Ruling). 14.On their part, the 1st and 2nd Defendants submit that the Plaintiffs’ application, filed by way of an amended Notice of Motion, is defective and ought to be struck out, on the basis that there is no provision for amendment of the same under the Civil Procedure Rules. To this end, they relied on the case ELC LAND CASE NO. E179 OF 2025 Page 12 of 22 Ruling

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of Jaribu Credit Traders Limited v Fidelity Bank Limited & Another [2024] eKLR. 15. They also submit that the application is overtaken by events as the Court cannot restrain what has already happened. They point out that the suit property, LR No. 13330/192 (IR 129818) no longer exists, having been subdivided into Nairobi Block 245/484 and Nairobi Block 245/485, and the Registry Index Map [R.I.M] amended on the 22 nd September, 2025. Further, that despite the said subdivision, none of the Plaintiffs’ alleged properties have been demolished more than nine (9) months later, they have enjoyed their portion, being Nairobi Block 245/484 without any threats from them or any other individual. They insist that if the Orders sought are granted, their proprietary rights protected under Article 40 of the Constitution would be seriously jeopardized at the expense of a barren claim. 16. They also submit that if a subdivision plan had been prepared by the Interested Party’s Surveyor as at 2013 as alleged by ELC LAND CASE NO. E179 OF 2025 Page 13 of 22 Ruling

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the Plaintiffs, it beats logic why it was not registered. Further, that from Thome V Estate’s Constitution & Rules, subdivision of the parcels of land within Thome V Estate is allowed subject to acquisition of all written approvals from the relevant authorities, being the 3rd and 4th Defendants and City County of Nairobi. 17. To buttress their averments, they relied on the following decisions: Rhoda Muthoki Kioko Wambua v Samuel Waithaka Kiige [2021] eKLR, Esso Kenya Limited v Mark Makwata Okiyo [1992] eKLR , Cyka Holdings Limited v Nairobi City County Government & 2 Others [2017] eKLR, Katimua Ene Meria Kardasi v Benson Lasiti Kakoro & 6 Others [2025] eKLR, Meiseyeki Loontubu & Another v The County Land Registrar Narok & 3 Others [2024] eKLR, Trisquare Ltd & Another v Christian lau larsen & Another [2018] eKLR, Kenya Pipeline Company Ltd V Glencore Energy [UK] Ltd [2015] eKLR, Municipal Council of Eldoret v Titus ELC LAND CASE NO. E179 OF 2025 Page 14 of 22 Ruling

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Gatitu Njau [2020] eKLR and East African Development Bank v Hyundai Motors Kenya Limited [2006] eKLR. Analysis and Determination 18. I have considered the instant amended Notice of Motion application including the respective affidavits and rivalling submissions and the only issue for determination is whether the Plaintiffs’ amended Notice of Motion dated 15 th December 2025 is competent and if they have met the threshold for grant of the orders of interlocutory injunction as sought therein. 19. The Plaintiffs allege that they had an understanding with the 1st and 2nd Defendants concerning the dimensions of the access road to their respective portions of the suit property, LR No. 13330/192(IR 129818), which they purchased in equal shares. They claim that each party agreed to cede three meters from their respective portion to create a six meter access road, with the three meter so ceded forming part of the separate titles to be registered in the name of ELC LAND CASE NO. E179 OF 2025 Page 15 of 22 Ruling

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each party. Further, that relying on the said understanding, they have developed their portion of the suit property to the tune of kshs. 30 million. 20. They contend that the 1st and 2nd Defendants departed from the boundaries previously agreed upon and now seek to implement a subdivision plan that deviates from the existing boundaries which if implemented, will cause them loss of their developments and interfere with their possession. 21. The 1st and 2nd Defendants dispute the Plaintiffs’ alleged arrangement and aver that the access road was always intended to be six meters. Further, that the Plaintiffs’ threemetre arrangement would interfere with their own property, contrary to Article 40 of the Constitution and that it would also be contrary to the applicable requirements, that a six (6) meter access road is ceded for public use. They also contend that the Chief Land Registrar dealt with the boundary dispute between the parties and thereafter caused the boundaries to be re-established. They also indicated to the ELC LAND CASE NO. E179 OF 2025 Page 16 of 22 Ruling

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Court that subdivision has already occurred and the RIM amended therefore the Plaintiffs’ application has been overtaken by events as there is no ongoing subdivision to injunct. 22. The 1st and 2nd Defendants further contend that the Plaintiffs’ application is incompetent because the Civil Procedure Rules do not provide for amendment of a Notice of Motion. They relied on the case of Jaribu Credit Traders Limited v Fidelity Bank Limited & another [2024] KEHC 3412 (KLR) where Hon. Judge Nixon Sifuna, stated as follows: “It is my view that an application is under the Civil Procedure Rules not amendable. If it were to be amended, what happens to its Supporting Affidavit. Especially given that an Affidavit is under the law not amendable. One will then in some such instances end up with a Supporting Affidavit that is either superfluous, irrelevant, unsupportive of or even contrary to ELC LAND CASE NO. E179 OF 2025 Page 17 of 22 Ruling

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amended Application. This is an absurdity, and the law as we all know abhors absurdity.” 23.The aforementioned decision though persuasive is not binding on this Court given that the Court of Appeal has affirmed that amendments should be freely allowed if they do not prejudice the opposite party, in the case of Central Kenya Ltd v Trust Bank Ltd & 5 others Civil Appeal No.222 of 1998 [2000] eKLR, where it stated as follows: “… the guiding principle in applications for leave to amend is that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs…..” 24. In the foregoing, while relying on the Court of Appeal decision, I decline to strike out the instant amended Notice of Motion as incompetent as the 1 st and 2nd Defendants have failed to demonstrate any prejudice they stand to suffer if the ELC LAND CASE NO. E179 OF 2025 Page 18 of 22 Ruling

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Court proceeds to determine the said amended Notice of Motion application on its own merits. 25. On the prayer for interlocutory injunction, I will proceed to rely on the principles on injunction as espoused in the case of Giella v Cassman Brown & Company Limited (1973) E A 358, as well as the definition of a prima facie case as state in the case of Mrao Limited v First American Bank Limited (2003) eKLR, to determine whether the Plaintiffs are entitled to the prayers as sought herein. 26. The Plaintiffs seek to restrain the 1 st and 2nd Defendants from interfering with the suit property on the ground that they had each agreed on ceding a three-meter road to form a six metre road between them. Further, that they proceeded to develop their property on that basis and will suffer irreparable harm if the 1st and 2nd Defendants are left to proceed. The 1st and 2nd Defendants on their part contend that the suit property sought to be injuncted no longer exists as it has been subdivided. Further, that the Chief Land ELC LAND CASE NO. E179 OF 2025 Page 19 of 22 Ruling

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Registrar already determined the boundary dispute between them and the Plaintiffs never appealed against his Ruling. 27. Under section 16 of the Land Registration Act, it is only the Land Registrar mandated to make a determination of a boundary dispute and correct cadastral positions, which has been done herein. Insofar as the Plaintiffs claim is that they had agreed with the 1st and 2nd Defendants to each cede three metre access road and thereafter they proceeded to develop their property, I opine that this Agreement ought to have been reduced to a rectified map to make it legal. However, at this juncture, I find that the Orders the Plaintiffs are seeking have been overtaken by events since the Land Registrar already determined the boundary and the 1 st and 2nd Defendants properties has since been subdivided. 28. In the foregoing, I find that the Plaintiffs have failed to demonstrate a prima facie case as against the 1 st and 2nd Defendants to warrant the Orders of interlocutory injunction as sought. ELC LAND CASE NO. E179 OF 2025 Page 20 of 22 Ruling

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29. Further, in relying on the parameters set out in Nguruman Ltd. Vs. Jan Bonde Nielsen (2014) eKLR, where the Court of Appeal held that if a party fails to establish a prima facie case, then irreparable injury and balance of convenience need no consideration, I will decline to deal with the other two limbs. 30. In the circumstances, I find the Notice of Motion dated 10th April 2025 and amended on 15th December 2025 unmerited and will dismiss it. 31.Each party to bear their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE ELC LAND CASE NO. E179 OF 2025 Page 21 of 22 Ruling

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In the presence of: Githinji for Plaintiffs Ochieng for 1st and 2nd Defendants Ms Njuguna for 3rd, 4th and 5th Defendants Kebenei for Interested Party Court Assistant: Joan ELC LAND CASE NO. E179 OF 2025 Page 22 of 22 Ruling

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