Imarisha Savings and Credit Co-operative Society Ltd v County Government of Bomet & another

RULING Introduction. 1. This ruling is in respect of the Petitioner/Applicant's Notice of Motion application dated 9th February, 2026. The application is expressed to be brought under Articles 22, 23(1), 24, 27, 40 159, 258 and 259 of the Constitution of Kenya, Rule 4(1), 19, and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rule 2013 and all other enabling provisions of the law. 2. The applicant seeks the following orders: 3. a. Spent. b. Spent. c. That the Honourable Court be Pleased to issue an order of temporary injunction restraining the Respondents by themselves, their agents, servants and/or employees from entering, trespassing, re-allocating or howsoever interfering with the Petitioner/Applicant's use, occupation and quiet enjoyment of its property comprised in L.R. No. Bomet Township/344. d. That the costs of the application be provided (sic) borne by the Respondents. The application is premised on the grounds on the face of it and the Supporting Adavit of Mercy Mutai sworn on 9th February 2026. Factual Background. 4. The Applicant commenced the present proceedings vide the Petition dated 9th February 2026 wherein it seeks the following prayers; a. A declaration that the Respondents have violated the Petitioner’s right to property enshrined under Article 40 of the Constitution of Kenya. b. An order of permanent injunction restraining the Respondents by themselves, their agents, servants and/or employees from howsoever interfering with the Petitioner’s rights to entry, use, development and quiet enjoyment of L.R Bomet Township/344. c. An order of mandamus directing the Respondents to issue to the Petitioner all the requisite development permits within their purview in respect to L.R No Bomet Township/344 for which the Petitioner is in compliance with the Law. d. An order for compensation of the Petitioner for unlawful deprivation of use of property and for damages incurred. e. Costs of this Petition. f. Such other orders(s) and/or relief(s) as this Honourable Court shall deem t. 5. As at the time of writing this ruling, the Respondents have not led their response to Petition. 6. The application under consideration came up for hearing on the 16th March, 2026. The Respondents were given more time to le a response to the application. The Court thereafter directed that the application be heard by way of written submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5636/eng@2026-09-24 2

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7. On 28th April 2026, the matter came up for mention to conrm ling of submissions when Counsel for the Applicant informed the Court that he had led and served submission upon the Respondent while Counsel, for the 1st and 2nd Respondent informed the Court that they had not led their submissions. The Court granted the Respondents leave to le their submissions by close of business on the 5th May, 2026 and then reserved the matter for ruling. Applicant’s contention. 8. The adavit in support of the application is sworn by one Mercy Mutai. She contends that she is the Legal Ocer of the Petitioner hence competent and duly authorized to swear the supporting adavit on behalf of the Petitioner. 9. She also contends that the Applicant is the lawful registered proprietor of the leasehold interest in all that parcel of land known as L. R. No. Bomet Township/344 pursuant to a Certicate of Lease dated 1st February, 2018. 10. She further contends that the said parcel of land was formally registered as L. R. No. 8939/266 under the repealed Registration of Titles Act and was initially allocated to Bernard Chepkwony Mutai vide the Allotment Letter dated 1st April, 1995. 11. It is her contention that a Lease was subsequently issued to the said Bernard Chepkwony Mutai for a term of 99 years with eect from 1st April, 1995, vide a Lease dated 9th October, 2017. 12. She further contends that on or about 30th August, 2002, a Deed Plan No. 244696 was prepared and registered in respect of the said parcel of land L. R. No. 8939/266. 13. She also contend that upon the enactment of the Land Act, 2012, the said parcel of land was registered under it as L. R. No. Bomet Township/344 and a Certicate of Lease issued to the said Bernard Chepkwony Mutai. 14. It is her further contention that on or about 20th December, 2017, the said Bernard Chepkwony Mutai sold to the Petitioner the said L. R. No. Bomet Township/344 for valuable consideration. 15. It is her contention that on or about 12th January, 2018, the said Bernard Chepkwony Mutai delivered to the Petitioner a duly signed transfer, the consents, rent and rates clearance certicates. 16. It is also her contention that on or about 1st February, 2018, the transfer of the said parcel of land L. R. No. Bomet Township/344 was duly and procedurally registered in favour of the Petitioner upon payment of stamp duty and registration fees. 17. It is her further contention that the Petitioner/Applicant assumed physical possession of the said parcel of land from 1st February, 2018. 18. She contends that on or about 21st January, 2026, its contractor, Brimlex Limited, made an application to the Respondents for a permit to erect a permanent fence around the said parcel of land. 19. It is further her contention that instead of issuing a permit, the Respondents wrote to the Petitioner a letter dated 21st January, 2026 purportedly declaring the said parcel of land L. R. No. Bomet Township/344 to be public land for public use and issued a Stay Order directing the Petitioner to stop the fencing of the said parcel of land. 20. It is her contention that the sum eect of the actions of the Respondents in stopping it from continuing with the fencing of its property and arbitrarily declaring L. R. No. Bomet Township/344 to be public property for public use violated its right to property enshrined under Article 40 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5636/eng@2026-09-24 3

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21. It is also her contention that as a result of the Respondents' arbitrary and unconstitutional actions, it continues to incur losses due to delay of completion of fencing works already procured to a contractor, as evidenced by a letter dated 28th January, 2026 from the contractor. 22. She ends by deposing that the Petitioner/Applicant seeks a declaration that the Respondents' actions are unconstitutional, unlawful, irregular, null and void. 1st Respondent’s Response. 23. The 1st Respondent led a Replying Adavit sworn by its County Secretary one Simon Langat. 24. It is his deposition that property L.R No Bomet Township/344 is held by the County Government of Bomet County in trust for the people who reside in Bomet. 25. He also deposes the parcel of land is zoned for public use and only can be allotted once all approvals have been granted by the department of lands. 26. He further deposes that once a title is tainted with illegality subsequent sales to other parties are illegal. 27. It his deposition that the parcel of land is not developed and has been in management of the 1st Respondent. 28. It is also his deposition that the Petitioner commenced the fencing contrary to the physical land use and planning laws governing developments of the property within the municipality of Bomet. 29. He ends his deposition by stating that a democratic society holds public land and resources in trust for the needs of that society and that alienation of the land defeats the Public interest and goes against the letter and spirit of the Constitution. Petitioner/Applicant’s response to the Respondents’ Replying Adavit. 30. In the Supplementary Adavit sworn on 14th April, 2026, he Petitioner/Applicant deposes that she has read and understood the contents of the Replying Adavits sworn by Simeon Langat and Haron Kirui on 31st March, 2026, and wishes to respond thereto. 31. She reiterates the contents of her Supporting Adavit sworn on 9th February, 2026 in its entiretyy and deposes that the 2nd Respondent conrms, in paragraphs 21(c) and (e) of the Replying Adavit sworn by Haron Kirui, that the suit parcel of land was allocated to Bomet Academy, and that an allotment letter and lease were duly issued by the Commissioner of Lands upon approval by the defunct County Council of Bomet. 32. She deposes that Bernard Chepkwony Mutai is duly registered as the proprietor of Bomet Academy, and has annexed copies of the Certicate of Incorporation and the Memorandum and Articles of Association of Bomet Academy as exhibits marked “MM 12(a) and (b)” respectively. 33. She contends that, contrary to the allegations of the Respondents, the Development Plan annexed to the Replying Adavit sworn by Haron Kirui as exhibit “HK 2” does not designate Zone 2(3) as “public land”. 34. She deposes that the said Development Plan instead designates Zones 4 and 6 for “public purposes” and “public utilities” respectively. 35. She further deposes that, according to the said Development Plan, Zone 2(3) is designated for “educational purposes”, which designation does not necessarily preclude a privately-operated https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5636/eng@2026-09-24 4

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educational institution, Bomet Academy being, and having always been, a private institution, as demonstrated by exhibits “MM 12(a) and (b)”. 36. It is her contention that considering that the Petitioner has not applied for a development permit on the suit parcel of land, it is prematurely speculative for the Respondents to allege that the Petitioner does not intend to develop and use the suit parcel of land for educational purposes. 37. She deposes that, in fact, the 2nd Respondent conrms in paragraph 21(c) of the Replying Adavit sworn by Haron Kirui that the Petitioner has not undertaken any physical development on the suit parcel of land. 38. She deposes that the Petitioner is a Savings and Credit Co-operative Society whose membership primarily comprises teachers, and that it is accordingly within its core business to engage in educational activities. 39. She deposes that, in any event, the Respondents will have to consider and either approve or decline any development plan submitted by the Petitioner for the development of the suit parcel of land. 40. She deposes that she is advised by counsel on record, which advice she verily believes to be true, that Sections 42 and 43 of the Physical and Land Use Planning Act, 2019 allow for change of user of any parcel of land through a modication or revision of the County Physical and Land Use Development Plan, and that the Development Plan is accordingly not cast in stone. 41. It is her further deposition that the Petitioner denies all the allegations of impropriety and/or irregularity in the process of allotment or issuance of the Certicate of Lease of the suit parcel of land and adds that the Respondents are merely intent on depriving the Petitioner of the quiet use and enjoyment of its property. Issues for determination. 42. The Petitioner/Applicant led its Written Submissions dated 15th April 2026 while the 1st and 2nd Respondents led their Written Submissions dated 5th May, 2026. 43. The Applicant submits that the following issues fall for determination: a. Whether a temporary order of injunction should issue restraining the Respondents, their agents, servants and/or employees from entering, trespassing, re-allocating or howsoever interfering with the Petitioner/Applicant's use, occupation and quiet enjoyment of its property comprised in L. R. No. Bomet Township/344 pending the hearing and determination of the Petition. b. Who should bear the costs of the application. 44. With regard to issue 1, the Applicant relies on Article 23(3)(b) of the Constitution and submits that this Honourable Court has jurisdiction to grant appropriate relief, including an injunction, in proceedings brought under Article 22 of the Constitution. 45. The Applicant also relies on Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and submits that a Judge before whom a petition is presented shall hear and determine an application for conservatory or interim orders. 46. The Applicant further relies on the judicial decision of Giella v Cassman Brown & Co. Ltd [1973] EA 358 and submits that the principles which guide the grant of an interlocutory injunction are well settled. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5636/eng@2026-09-24 5

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47. It is the Applicant's submissions that the Respondents' allegation that the suit parcel of land is “public land for public purposes” is without foundation, given that the Development Plan annexed to the Replying Adavit sworn by Haron Kirui as exhibit “HK 2” expressly designates Zones 4 and 6 for “public purposes” and “public utilities” respectively, and that had the planners intended Zone 2(3) to be for “public purposes only” they would have expressly stated so. 48. It is also the Applicant's submissions that the term “educational purposes” used in the Development Plan is wide enough to encompass private educational institutions. 49. The Applicant further submits that the Respondents have shown no justiable cause for their interference with its use and occupation of the suit parcel of land. 50. It is the Applicant's submissions that the allegation that it does not intend to use the suit parcel of land for educational purposes is a seriously misleading aberration, given that it is a society whose membership primarily comprises teachers and has educational interests. 51. The Applicant also submits that, in any event, the Respondents retain the prerogative to approve or reject any development permits sought by it, and further relies on sections 42 and 43 of the Physical and Land Use Planning Act, 2019 and submits that these provisions allow for a change of user of any parcel of land through a modication or revision of the County Physical and Land Use Development Plan on application by any party, such that the Development Plan is not cast in stone. 52. The Applicant submits that it has, therefore, established a prima facie case against the Respondents, and relies on Article 40(1) of the Constitution for the proposition that it guarantees the Petitioner/ Applicant's right to acquire and own property of any description in any part of Kenya, a right which the Respondents have threatened to deprive it o. 53. The Applicant also submits that it stands to suer irreparable loss and damage unless the Court assumes jurisdiction to enforce its right to the use and occupation of the suit property, relying on the 2nd Respondent's letter and Stay Order dated 21st January, 2026 annexed as exhibits “MM 9 (a) and (b)” as demonstrating the Respondents' intention to deprive it of the suit property. 54. It is also the Applicant's submissions that if a temporary order of injunction is not granted, the Respondents will take over, re-allocate and/or deal with the suit property in a manner that will not be compensated by damages, and that the subject matter of the suit needs to be preserved. 55. The Applicant further submits that, prior to the Respondents' interference, it was in the process of putting up a permanent fence around the suit land to secure its boundaries from encroachment, having procured the services of a contractor whose equipment remains at the site, and that it continues to incur losses from the contractor's charges as shown by exhibit “MM 10” and adds that the suit parcel of land is at risk of encroachment unless secured by a fence, and that time is a factor. 56. The Applicant also submits that besides the foregoing, it is a nancial institution owned by members of the community and adds that its reputation is on the line because the Respondents' unlawful actions have created a perception of impropriety in the acquisition of the suit property and that therefore, the Applicant risk loss of membership, damage which it submits is irreparable by any award of damages. 57. It is further the Applicant's submissions that the balance of convenience tilts in its favour, being the registered proprietor of the suit parcel of land which has been in its exclusive use and occupation since 1st February, 2018, and also submits that the balance of convenience in land matters favours maintenance of the status quo. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5636/eng@2026-09-24 6

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58. The Applicant submits that it will suer a much greater inconvenience if a temporary injunction is not granted and the Petition succeeds than the inconvenience the Respondents would suer if the injunction is granted. 59. With regard to costs, the Applicant relies on Section 27(1) of the Civil Procedure Act, Cap. 21 and submits that costs usually follow the event, and that the Respondents' unlawful actions having necessitated the institution of the application, the Respondents should be ordered to bear the costs in any eventuality. 60. The Applicant concludes its submissions by urging the Court to nd that it has established a prima facie case as the lawful registered proprietor of the suit parcel of land, that it stands to suer irreparably if the temporary injunction is not granted, and that the balance of convenience tilts in favour of granting the order and accordingly prays that the application dated 9th February, 2026 be allowed with costs. 61. The Respondents submit that the alleged allocation forming the basis of the Petition has already been judicially settled, with a nding that no allocation or purported transfer without a certicate of allocation is invalid ab initio, and rely on Article 163(7) of the Constitution for the proposition that the decision of the Supreme Court is binding on all courts and persons. 62. The Respondents identify the following issues for determination: a. whether the Petition discloses a constitutional cause of action. b. whether the Petitioner has a valid proprietary interest in L.R. No. Bomet Township/344. c. whether the Petitioner is entitled to the reliefs sought. 63. In respect of the rst issue, Respondents submit that the Petition does not meet the threshold for constitutional litigation, and rely on the judicial decision of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR (CA) for the proposition that constitutional Petitions must be pleaded with precision. 64. The Respondents also rely on Gabriel Mutava & 2 Others v Managing Director Kenya Ports Authority [2016] eKLR (CA) and submit that where a dispute can be resolved under ordinary law, constitutional jurisdiction ought not to be invoked, contending that the issues raised concern the validity of title and land allocation processes which are properly within the domain of statutory and administrative law. 65. It is also the Respondents' submissions that, to the extent the Petitioner relies on a purported allocation already declared invalid, Article 163(7) of the Constitution renders the decision of the Supreme Court binding and conclusive, such that any attempt to relitigate or rely on an allocation already pronounced upon by the Supreme Court is legally untenable and constitutes an abuse of the court process, and that no constitutional violation is disclosed. 66. With regard to the second issue i.e. whether the Petitioner has a valid proprietary interest, the Respondents submit that the Petitioner has not established any lawful or enforceable title and relies on the judicial decision of Wreck Motors Enterprises v Commissioner of Lands & 3 Others [1997] eKLR (CA) in support of the proposition that an allotment letter does not confer title. 67. The Respondents also rely on Munyu Maina v Hiram Gathiha Maina [2013] eKLR (CA) and submit that where title is challenged, the holder must prove its legality. 68. The Respondents further rely on Chemey Investment Limited v Attorney General & 2 Others [2018] eKLR (CA) and submit that illegally acquired title is not protected. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5636/eng@2026-09-24 7

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69. It is the Respondents' submissions that their evidence demonstrates the absence of a lawful allocation process, the lack of involvement of the County Government and the National Land Commission, the absence of an approved Part Development Plan, and the zoning of the land for public educational use, and that, accordingly, no valid proprietary interest has been established. 70. With regard to whether the Petitioner is entitled to the reliefs sought, and specically the declaration of violation of Article 40, the Respondents submit that Article 40 of the Constitution does not protect unlawfully acquired property, relying on Chemey Investment Limited v Attorney General & 2 Others [2018] eKLR (CA) and Funzi Island Development Limited & 2 Others v County Council of Kwale & 2 Others [2014] eKLR (CA), and submit that this prayer is not sustainable. 71. With regard to the prayer for permanent injunction, the Respondents rely on Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR (CA) for the threshold applicable to injunctions, and submit that the Petitioner has not demonstrated a prima facie case or an enforceable legal right, the suit land being public land reserved for public use, and that this prayer fails. 72. With regard to the prayer for an order in the nature of mandamus, the Respondents rely on Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR (CA) for the proposition that mandamus compels performance of a lawful duty, and submit that no lawful duty can arise in respect of a disputed and unveried proprietary interest. 73. With regard to compensation, the Respondents rely on Attorney General v Torino Enterprises Ltd [2019] eKLR (CA) for the proposition that no compensation is payable for unlawfully acquired land, and submit that this prayer also fails. 74. With regard to costs, it is the Respondents' submissions that costs follow the event and add that no further relief can issue in the absence of a valid legal right. 75. The Respondents conclude their submissions by urging the Court to nd that the Petition and the Notice of Motion application are fatally defective, misconceived and devoid of merit and accordingly pray that the Notice of Motion dated 9th February, 2026 be dismissed with costs. Analysis and Determination. 76. 77. Having considered the Applicant’s application, the response thereto, and the Written Submissions, I am of the view that the following issues arise for determination: a. Whether the Applicant has met the criteria for the grant of an order of temporary injunction pending the hearing and determination of the Petition. b. Who should bear the costs of the application. It is important to also mention that while the Applicant makes reference to the replying adavit sworn by Simeon Langat and Haron Kirui on 31st March, 2026, The Court record only had the response by Simeon Langat. A. Whether the Applicant has met the criteria for the grant of an order of temporary injunction pending the hearing and determination of the Petition. 78. The conditions for the grant of an interlocutory injunction are well settled, having been laid down in the judicial decision of Giella v Cassman Brown & Co. Ltd [1973] EA 358. It was held as follows; "The conditions for the grant of interlocutory injunction are now I think well settled in East Africa. First an Applicant must show a prima facie case with probability of success. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5636/eng@2026-09-24 8

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Secondly an interlocutory injunction will not be normally granted unless the Applicant might otherwise suer 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.” 79. The Applicant must rst establish a prima facie case. A prima facie case was dened in the judicial decision of Mrao Limited v First American Bank of Kenya Ltd & 2 Others [2003] eKLR as follows: “ A prima facie case in a civil case include but is not conned to a ‘genuine or arguable’ case. It is a case which on the material presented to the Court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 80. The Applicant contends that it is the registered proprietor of the suit property comprised in L.R. No. Bomet Township/344, since 1st February, 2018. 81. The Applicant further contends that the Respondents have threatened to deprive it of the suit property, an intention it says is captured in the 2nd Respondent's letter and Stay Order dated 21st January, 2026, exhibited as “MM 9(a) and (b)”. 82. These are substantive questions touching on the validity of the Applicant's title, the proper interpretation of the Development Plan, and the propriety of the allotment and issuance of the Certicate of Lease over the suit parcel. In my view, at this interlocutory stage, it is neither necessary nor appropriate for the Court to make denitive ndings on these contested questions, which require full evidentiary testing and are properly reserved for the substantive hearing of the Petition. 83. The evidence before the Court at this stage demonstrates that the the Applicant holds a document of title over the suit property since the year 2018, and that the Respondents, through the 2nd Respondent's letter and Stay Order dated 21st January, 2026, have taken overt steps adverse to that occupation. 84. This, in my view, discloses a right which has apparently been infringed or threatened, calling for explanation or rebuttal from the Respondents. 85. Given the foregoing, I nd that the Applicant has established a prima facie case with a probability of success, without thereby making any nding on the ultimate validity of either party's claim over the suit property, which shall abide the outcome of the substantive Petition. 86. The second condition for the grant of a temporary injunction is that the Applicant must demonstrate that it will suer irreparable injury that would not be adequately compensated by an award of damages. 87. In the judicial decision Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal pronounced itself as follows: “ On the second factor, that the Applicant must establish that he ‘might otherwise’ suer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the Applicant to demonstrate, prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the Applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot ‘adequately’ be compensated by an award of damages.” (Emphasis mine) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5636/eng@2026-09-24 9

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88. In the judicial decision of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR, the Court further explained that irreparable injury means injury that cannot be adequately compensated for in damages, and that the Applicant must show that such injury will occur if the injunction is not granted, and that there is no other remedy open to it by which it can protect itself from the consequences of the apprehended injury. 89. The Applicant contends that it stands to lose the benet of the contractor's services already procured and paid for towards fencing the suit property, as shown by exhibit “MM 10”, and that the suit property remains at risk of encroachment for as long as it is not ssecured. 90. The Applicant further contends that, being a nancial institution owned by members of the community, its reputation is at stake, the Respondents' conduct having created a perception of impropriety in the acquisition of the suit property and that this perception is capable of adversely aecting the Applicant’s membership in a manner that no award of damages can readily quantify or remedy. 91. The Respondents' position, to the extent disclosed on the record, does not directly controvert these specic averments on contractor losses or reputational harm. 92. I have considered the nature of the injury pleaded. The loss of contractor charges is, in principle, capable of being quantied and compensated in damages. 93. However, the risk of encroachment on unsecured land, and the reputational harm pleaded by the Applicant as a community-owned nancial institution whose good standing depends on public condence, are not, in my view, injuries that lend themselves to precise monetary measurement. I nd that the Applicant has, on this point, demonstrated that it stands to suer injury that would not be adequately compensated by an award of damages. 94. Having found that the Applicant has established both a prima facie case and irreparable injury it is not necessary to determine this application on the balance of convenience but I shall do so for what it is worth. 95. In the judicial decision of Paul Gitonga Wanjau v Gathuthis Tea Factory Company Ltd & 2 Others [2016] eKLR, the Court, considering the question of balance of convenience, expressed itself thus: 23. 96. Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the Court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suer if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right… The Court will seek to maintain the status quo in determining where the balance of convenience lies.” (Emphasis mine) In Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR the Court held as follows; “ The meaning of balance of convenience will favour of the Plainti' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintis, the inconvenience caused to the Plainti would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintis to show that the inconvenience caused to them will be greater than that which may be caused to the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5636/eng@2026-09-24 10

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Defendants. Inconvenience be equal, it is the Plainti who will suer. In other words, the Plainti has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting it” (Emphasis mine) 97. If a temporary injunction is denied and the Petition ultimately succeeds, the Applicant stands to lose the benet of a property it has owned for several years, whereas, if the injunction is granted and the Petition ultimately fails, the suit property will remain available to the Respondents. In my view, therefore, and applying the principle of preservation of the status quo, the balance of convenience tilts in favour of the Applicant. 98. Taking the foregoing into consideration, I nd that the Applicant has satised the three conditions set out in Giella v Cassman Brown (supra) for the grant of a temporary order of injunction pending the hearing and determination of the Petition. B. Who should bear the costs of the application 99. The general rule is that costs shall follow the event. This is in accordance with the Provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. 100. Having found in favour of the Applicant on the application, I nd no reason to depart from this general rule. Disposition. 101. 102. Taking the foregoing into consideration, the Applicant's Notice of Motion application dated 9th February, 2026 is allowed in the following terms: a. A temporary order of injunction is hereby issued restraining the Respondents, by themselves, their agents, servants and/or employees, from entering, trespassing, re-allocating or howsoever interfering with the Petitioner/Applicant's use, occupation and quiet enjoyment of its property comprised in L.R. No. Bomet Township/344, pending the hearing and determination of the Petition. b. The costs of the application shall be borne by the Respondents. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 24TH DAY OF SEPTEMBER, 2026. L. A. OMOLLO JUDGE. In the presence of: Mr. Langat for the Petitioner/Applicant. Miss Chemutai for Mr. Kori for the 1st Respondent. Miss Chemutai for Mr. Koech for the 2nd Respondent. Court Assistant; Mr. Joseph Makori. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5636/eng@2026-09-24 11

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