Peter Kamau Njenga v Dr. Alice Chepkemoi Ruto

the suit property, Title Number Ruiru/Ruiru East Block 3/1924. c) THAT pending the hearing and determination of the intended appeal to the Court of Appeal, an order of an injunction do issue restraining the Respondent, whether by herself, her agents, servants or any person acting on her behalf, from selling, transferring, charging, leasing, subdividing, disposing of, or in any manner dealing with the suit property, Title Number Ruiru/Ruiru East Block 3/1924. d) THAT pending the hearing and determination of the intended appeal to the Court of Appeal, an order of inhibition do issue inhibiting any registration of dealings with Title Number Ruiru/Ruiru East Block 3/1924. e) THAT, in the alternative, this Honourable Court be pleased to order that the status quo prevails pending the hearing of the intended Appeal to the Court of Appeal. f) THAT the costs of this application be provided for. 2) The application is based on the grounds and supported by the affidavit sworn on even date by Peter Kamau Njenga, who states that he is aggrieved by the Judgment delivered on 20/05/2026, and has consequently filed a Notice of Appeal dated 25/05/2026. He emphasizes that the suit property, Land Title No. Ruiru/Ruiru East Block 3/1924, is a unique, immovable asset facing an imminent risk of being ELCA NO. E023 OF 2023 2|Page

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alienated or disposed of by the Respondent, an act that would render his intended appeal academic and nugatory. Asserting that he has an arguable appeal with high chances of success, Njenga contends that the balance of convenience, the interests of justice, and the doctrine of lis pendens mandate the preservation of the property pending the appeal's potential determination, prejudice to while the affirming Respondent that any be fully can compensated by costs. 3) Peter Kamau Njenga, an adult male of sound mind residing in Kiamumbi Estate, Appellant/Applicant Kiambu, in deposes this matter that he is the following his dissatisfaction with the Judgment rendered on March 14, 2023, by Hon. J. A. Agonda in Ruiru ELC Case No. E067 of 2022 (Dr. Alice Chepkemoi Ruto vs. Peter Kamau Njenga). He explains that after the High Court dismissed his appeal on May 20, 2026, he promptly initiated further appellate proceedings by filing a Notice of Appeal dated 25/05/2026, and requesting typed proceedings on 26/05/2026, both of which are annexed to the affidavit as "PKN 1 and 2." He expresses a strong apprehension that without an injunction, the Respondent may sell, transfer, charge, lease, subdivide, or otherwise alienate the disputed land, which would destroy the substratum of the appeal and render the proceedings a futile academic exercise. ELCA NO. E023 OF 2023 3|Page

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4) Njenga further deposes that he bought the subject land in the early 1980’s from Mwalimu Investment Company Limited, making its preservation critical to avoid irreparable damage due to the unique nature of land. Supported by advice from his Advocates, Messrs. Advocates, his prospects of he asserts success, that as M. D. appeal demonstrated Mwaura holds by strong the draft Memorandum of Appeal annexed as "PKN 3" (erroneously styled as "PKN g"). He maintains that the balance of convenience, the interests of justice, and the doctrine of lis pendens all favor keeping the property intact during the ongoing ownership contest, making the requested injunctive relief necessary to preserve the status quo until the Court of Appeal finally determines the matter. 5) The Application is opposed vide a Replying Affidavit sworn by the Respondent on 22/06/2026. The deponent opposes the Application characterizing it as a frivolous, unmeritorious, and abusive attempt to delay her enjoyment of her lawful property. She asserts that while the Applicant filed a Notice of Appeal following the Court's 20/05/2026 Judgment, this act does not confer proprietary rights or automatically entitle him to injunctive orders. Dr. Ruto emphasizes that she is the registered proprietor of Land Title No. Ruiru/Ruiru East Block 3/1924 under Sections 24, 25, and 26 of the Land Registration Act, pointing out that the Applicant has failed to produce ELCA NO. E023 OF 2023 any title deed, sale agreement, or transfer 4|Page

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document to establish a legal, equitable, or beneficial interest in the suit property. 6) Addressing the Applicant's claims of imminent risk, Dr. Ruto denies any intention or attempt to sell, charge, subdivide, or dispose of the suit property, dismissing his apprehensions as mere speculation. She contends that the Applicant has failed to satisfy the sequential threshold for an injunction set out in Giella vs. Cassman Brown & Co. Ltd (1973) E A 358 and Nguruman Ltd v Nielsen & 2 Others (Civil Appeal 77 of 2012) [2014] KECA 606 (KLR) particularly failing to establish a prima facie case with a probability of success as defined in Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR), Citing Kenleb Cons Limited vs New Gatitu Service Station Limited & Another [1990] KLR she submits that an injunction cannot issue in the absence of proven property rights. Furthermore, relying on Reliance Bank Limited (In Liquidation) v. Norlake Investments Limited [2002] 1 EA 227, she argues that the intended appeal is neither arguable nor at risk of being rendered nugatory. 7) She rejects the Applicant's reliance on the doctrine of lis pendens, referencing Naftali Ruthi Kinyua V Patrick Thuita Gachure & Another [2013]eKLR to maintain that the doctrine cannot override the rights of a registered proprietor or create non-existent property rights. She states that the Applicant has not alleged or proven any fraud, ELCA NO. E023 OF 2023 5|Page

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illegality, or impropriety to impeach her title, meaning the balance of convenience heavily favors her as the registered owner. She cautions that granting the requested orders would improperly reinstate an appeal that has already been dismissed, concluding that it is in the interest of justice for the Court to dismiss the application with costs. 8) The parties canvassed the Application by way of written submissions. Issues for Determination 9) Considering the pleadings and affidavits filed the key issues for determination are: 1. Whether the Applicant has demonstrated an arguable appeal with a probability of success to warrant the grant of an injunction or order of status quo pending the hearing and determination of the intended appeal to the Court of Appeal. 2. Whether the Applicant has established that the intended appeal will be rendered nugatory unless the orders of injunction, inhibition, or preservation of status quo are granted. 3. Whether the doctrine of lis pendens or the balance of convenience dictates the issuance of an order of inhibition or the preservation of the suit property pending appeal. 10) In evaluating the first issue regarding whether the Applicant has demonstrated an arguable appeal, it is well ELCA NO. E023 OF 2023 6|Page

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established that an Applicant seeking injunctive relief pending an appeal must demonstrate that the intended appeal is not frivolous and raises triable issues. An arguable appeal does not mean an appeal that must ultimately succeed, but rather one that raises a bonafide point of law or fact worthy of consideration by the appellate Court. In Stanley Kang'ethe Kinyanjui v. Tony Ketter & 5 Others [2013] eKLR, the Court of Appeal stated: " “On the first issue, whether the appeal is arguable, it is sufficient if a single arguable point is raised... An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous." 11) In this case, although the Applicant claims to have bought the suit property in the early 1980s, his appeal was dismissed, affirming the Respondent as the registered proprietor under the Land Registration Act. The Applicant has failed to show any prima facie arguable right or demonstrate how the Court erred in law or fact, rendering the intended appeal unmeritorious and an attempt to re-litigate settled matters. 12) On the second issue of whether the intended appeal will be rendered nugatory if the orders are withheld, the Court must consider whether the subject matter will be irreversibly destroyed or altered beyond repair before the appeal is ELCA NO. E023 OF 2023 7|Page

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heard. While land is generally unique, the mere fear that a registered owner might deal with their property does not automatically mean an appeal is rendered nugatory, especially where no evidence of an active transaction or disposal is presented. In Mukuma v. Abuoga [1988] KLR 645, the Court observed: "In considering injunction an pending application for appeal, Court the stay or must balance the parallel rights of the Applicant to have his appeal heard if arguable, and the right of the successful party to enjoy the fruits of his Judgment." 13) Here, the Applicant’s claims of imminent disposition are purely speculative and unsubstantiated by any documentary proof or active threat of transfer by the Respondent. Consequentially, refusing to restrain the lawful registered owner from exercising her statutory rights does not, on its own, render the intended appeal academic. 14) Regarding the third issue on the applicability of the doctrine of lis pendens and the balance of convenience, the law is clear that the doctrine of lis pendens cannot be invoked as an independent remedy to override express statutory title protections or grant injunctive relief where the Applicant has failed to establish a prima facie case. An order of inhibition or status quo is an equitable remedy that requires clean hands and ELCA NO. E023 OF 2023 a clear demonstration of rights requiring 8|Page

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protection. In Suleiman v. Amboseli Resort Limited [2004] 2 KLR 589, the Court held: "In exercising its discretion whether to grant an injunction or preserve status quo, the Court must be satisfied that the Applicant has acted promptly and that the balance of convenience inclines in his favor, taking into account the protection guaranteed to registered title holders." 15) In the present case, the Respondent holds absolute statutory title under Sections 24, 25, and 26 of the Land Registration Act, which has not been impeached on grounds of fraud or illegality. The balance of convenience overwhelmingly favors the Respondent, as granting the orders sought would unjustly deprive a successful litigant of the enjoyment of her property rights without any legal justification. 16) Having carefully considered the Application, the Replying Affidavit, and the written submissions filed by both parties, this Court finds that the Applicant has failed to establish an arguable appeal, failed to prove that the appeal would be rendered nugatory, and failed to demonstrate that the balance of convenience tilts in his favor. The Application dated 9/06/2026, lacks merit and is an abuse of the Court process. 17) Given the foregoing I do make the following orders: ELCA NO. E023 OF 2023 9|Page

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a) The Notice of Motion Application dated 9/06/2026, is hereby dismissed in its entirety. b) Costs of the Application are awarded to the Respondent. c) File Closed. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON ST THIS 21 DAY OF SEPTEMBER 2026. ………….........……….. MOGENI J JUDGE In the presence of:Mr. Mwaura for the Appellant/Applicant Mr. Ouya holding brief for Mr. Ochieng for the Respondent Mr. Melita - Court Assistant ……………...…….. MOGENI J JUDGE ELCA NO. E023 OF 2023 10 | P a g e

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