Ol Tome Safaris Limited v Saire & 4 others

2. d. That, in the alternative and without prejudice to prayer 2 and 3 above, the Honourable Court be pleased to order that status quo be maintained pending the hearing and determination of the application. e. That, pending the hearing and determination of this suit, an order of interlocutory injunction do issue restraining the 1st and 5th Defendants/ Respondents, their employees or agents from trespassing in or otherwise interfering with the Plainti/Applicant’s possession, occupation and use of parcel No. Transmara/Kimintet ‘C’/5. f. That, pending the hearing and determination of this suit, the 2nd, 3rd and 4th Defendants/ Respondents be restrained from registering or granting consent for the registration of any disposition of any legal interests or making any further entries in the register of parcel No. Transmara/Kimintet ‘C’/5. g. That, pending the hearing and determination of this suit, an order of mandatory injunction do issue compelling the 2nd Defendant/ Respondent to amend the register of parcel No. Transmara/Kimintet ‘C’/5 by deleting and/or revoking entry number 4 in the proprietorship section of the register and entry number 4 in the encumbrance section in the register. h. The costs of this application be provided for. The Applicant’s Notice of Motion is supported by the supporting adavit of Adrien Allen, a Director of the Plainti company herein, dated 20.04.2026 who deposes interalia ; a. That one of the parcels of land leased by the Applicant for the purpose of conducting tourism business such as game viewing and for wildlife conservation work is parcel No. Trasmara/ Kimintet ‘C’/5 (hereinafter suit property) which the Plainti has leased from the 1st Defendant and has had continuous occupation and use of for a period of almost twenty (20) years starting in 2007. b. The Plainti rst leased the suit property from the 1st Defendant on 01.08.2007, for a term of 5 years then for a subsequent term of 10 years from 30.07.2012 and nally vide the current lease between the Plainti and the 1st Defendant dated 26.10.2022. c. The lease dated 26.10.2022 between the Plainti and the 1st Defendant was duly registered by the 2nd Defendant, the land registrar, following the grant of land control board consent to lease, assessment and payment of stamp duty on the lease. d. The Plainti has continued to perform all its obligations under the lease, including but not limited to timely payment of rent to the 1st Defendant. The 1st Defendant has never made any allegation of breach on the part of the Plainti. The lease between the Plainti and the 1st Defendant has never been terminated or surrendered in any manner whatsoever and it remains valid for all intents and purposes. e. On or about 19.01.2026, as part of routine due diligence checks on its properties, the Plainti obtained a certicate of ocial search and a certied copy of the green card for the suit property. Upon perusing the ocial search and copy of green card, the Plainti learnt that on or about 02.10.2025, the 2nd Defendant had registered another lease against the suit property in favour of the 5th Defendant herein, Mararianta Camp Limited for a term of 10 years from 19.07.2025. f. The lease registered against the title of the suit property on 02.10.2025 in favour of the 5th Defendant was registered while the Plainti’s lease dated 26.10.2022 was in eect and was https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5698/eng@2026-09-17 2

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noted as an encumbrance against the title and/or register of the suit property. The lease registered on 02.10.2025 in favour of the 5th Defendant was registered without the Plainti’s lease being surrendered, cancelled or otherwise terminated. g. The lease registered on 02.10.2025 in favour of the 5th Defendant was registered against the title to the suit property without the Plainti’s knowledge, consent or authorization and is therefore illegal, irregular, and therefore null and void. h. The Applicant avers that by dint of Section 8 and 9 of the Land Control Act Cap 302) read together with Regulation 2 of the Land Control Regulations (L.N 23 of 1968); Land Control Board consent could not issue to the lease between the 1st Defendant and the 5th Defendant. This is because when applying for land control board consent to lease, the applicant must present to the 3rd Defendant a certicate of ocial search conrming that the subject matter property has no encumbrances registered against its title before the application is placed before the land control board for consideration of the application for consent. Given that the Plainti’s lease was registered as an encumbrance against the title to the suit property in 2025 when the lease between the 1st Defendant and 5th Defendant was processed, land control board consent to this lease could not and/or ought not to have issued. i. The Applicant avers that by dint of Section 54 of the Land Registration Act (No. 3 of 2012) the 2nd Defendant could not purport to register the October 2025 lease between the 1st Defendant and the 5th Defendant when the register of the suit property clearly stated and/or showed that there was another lease registered against the suit property in the encumbrance section of the register. j. By dint of clause 5 of the lease dated 22.10.2022 between the Plainti and the 1st Defendant, the Plainti is entitled to exclusive possession and quiet enjoyment of the suit property. By purporting to lease a portion of the suit property to the 5th Defendant, the 1st Defendant has breached the clear provisions of clause 5 (d) (i) top (vi) of the Plainti’s registered lease. k. Following the grant of the illegal lease on 02.10.2025, the 5th Defendant has purported to take possession of the suit property and is therefore impeding the Plainti’s ability to occupy and use the suit property for its business and conservation work. l. The Defendants’ actions described hereinabove amount to breach of terms of the Plainti’s registered lease, fraud, misrepresentation and breach of clear provisions of the law to the detriment of the Plainti. m. The Applicant avers that there has been a long history of attempts by the 1st, 2nd and 5th Defendants to interfere with the Plainti’s lease of the suit property and attempts to unlawfully defeat the Plainti’s legal rights over the suit property dating back to 2007. n. The Plainti avers that it has demonstrated a prima facie case with high chances of success at the hearing of the suit by having a registered legal right over the suit property and that this right has been injured by the Defendants so as to call for an explanation or a rebuttal from the Defendants. o. The Applicant avers that it stands to suer irreparable harm that cannot be adequately compensated by damages if the orders sought herein are not granted and the 5th Defendant allowed to continue trespassing onto the suit property and disrupting the Plainti’s work. p. The Applicant avers that the 5th Defendant will not suer any irreparable harm or loss if the orders sought herein are granted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5698/eng@2026-09-17 3

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3. q. The balance of convenience titles in favour of the Plainti who has had continuous lease, use and occupation of the suit property since 2007, a period of almost 20 years. r. The circumstances of this case, specically the decision of the 2nd Defendant to sit on an appeal and/or review of its rectication powers, is clearly illegal and in breach of straightforward statutory provisions and thus warrant grant of the orders of mandatory injunction sought in this application. s. The Applicant avers that it is in the best interest of justice that the orders sought in this application be granted as prayed. The 5th Defendant responded to the Notice of Motion by ling a Replying Adavit dated 02.06.2026 sworn by Aminmohamed Esmail Merali, a Director of the 5th Defendant deponing as follows; i) That he is the Director of the 5th Defendant herein therefore competent to swear an adavit on its behalf. Ii) That the 5th Defendant operates a reputable luxury tented camp and has been carrying out conservation and tourism business in the Mara Ecosystem for nearly 18 years since 2008 situated on land parcel number CISMARA/KOIYAKI DAGURUGURUETI/87 right across the subject land parcel No. TRANSMARA/KIMINTET ‘C’/5. iii) That the Mara River separates the 5th Defendant’s luxury tented camp and the subject land parcel No. Transmara/Kimintet ‘C’/5 which is among neighbouring land parcels that the 5th Defendant has leased to advance the company’s conservation and tourism business. iv) That the Applicant and the 5th Defendant are tourism partners operating their tourism business in the same conservancy known as Mara North Conservancy until the 5th Defendant exited on or about August 2021. The exit did not aect the tourism partnership and collaboration between the Plainti and the 5th Defendant and neither party has ever prevented the other from accessing, possessing and/or utilizing the subject project. v) That the Plainti’s attempt to paint the 5th Defendant as a nascent tourism player and or an intruder hijacking the subject lease land interest is misleading and contemptible. vi) The 5th Defendant further depones that besides conducting tourism activities including trekking, game drives, sundowner and bush dinners, they constructed a murram access road through the subject land parcel number Transmara/Kimintet ‘C’/5 in 2021 and a footbridge across the Mara River touching on the suit property and parcel No. Cismara/ Koiyaki Dagurufurueti/87 under NEMA license No. NEMA/EIA/PSL/18926. viii) That the 5th Defendant is the bonade registered lessee of the suit property for a 10-year lease term with eect from 19.07.2025 as per the certicate of lease issued on 02.10.2025. ix) The 5th Defendant avers that prior to the registration of the aforementioned lease, the green card copy shows that Oltome Safaris Ltd held a registered lease dated 01.08.2007 for a 5-year lease term that terminated on 31.07.2012. x) That on 01.09.2022, the 5th Defendant registered a 3-year lease term eective from 01.08.2022 which ought to have terminated and/or surrendered on or before 31.08.2025. ix) The 5th Defendant avers that despite the 5th Defendant’s valid lease interest, the 01.09.2022 lease was irregularly and illegally cancelled on 11.04.2023 and the Plainti’s purported lease was registered on 23.12.2022. The 5th Defendant challenged the lease cancellation and the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5698/eng@2026-09-17 4

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Plainti’s 23.12.2022 lease registration in a lawful process pursuant to Section 79 and Section 87 of the Land Registration Act through a letter dated 12.09.2023 and served the hearing notice concerning the suit property on 15.09.2023 to which the Plainti responded to the letter through a letter dated 18.09.2023. Thereafter, all the parties were summoned for a hearing, including the Plainti through their advocates vide summons dated 20.09.2023. 3. xii) The 5th Defendant avers that both Parties to this suit appeared for a hearing before the Registrar at Kilgoris (2nd Defendant herein), led their submissions and a ruling was delivered on 04.01.2024 based on sound legal principles by correcting its mistakes under the law contrary to the Plainti’s wrongful assertions. xiii) that the Plainti never challenged the land registrar’s decision in any legal forum and the Land Registrars letter dated 16.01.2024 armed the validity of the 5th Defendant’s lease interest and also distanced himself from the contents of the letter dated 15.02.2023 that was kept in the land parcel folder in custody of the land registrar. Xiv )that from a perusal of the subject land parcel on or about 13.02.2024, the Land Registrar reinstated the 5th Defendant’s lease interest and prior to the lease interest expiring on 31.08.2025, it eectively engaged the 1st Defendant over a further lease for 10 years. The 1st Defendant acknowledged receipt of the enclosed lease agreement and executed the delivery note dated 07.04.2024 and the lease was later witnessed on 30.07.2024. Xv) that the landowner, Matampash Ole Saire (1st Defendant herein) accompanied by his two spouses, the 5th Defendant and his legal representatives attended the land control board session on 18.09.2025 and the 3rd and 4th Defendants consequently issued the consent dated 18.09.2025 and after payment of stamp duty and registration fee, the 2nd Defendant registered and issued the lease certicate. Xv) that contrary to the Plainti’s assertion, it shall suer irreparable harm that cannot be adequately compensated by damages if the orders sought are granted given the massive investment in an access road and the footbridge by the 5th Defendant in 2021 and 2022 as well as the collaborative nature of the wildlife conservancy business between the Plainti and the 5th Defendant since 2008, the irreparable harm claimed by the Plainti is farfetched. xvi )that the claims made by the Plainti are threadbare falsehoods, devoid of non-disclosure of material facts and an attempt to mislead this honourable court. The 1st Defendant, 2nd Defendant, 3rd Defendant, and the 4th Defendant did not le a Replying Adavit and neither did they le submissions. Applicant’s Submissions 4. The Applicant’s submissions framed 3 issues for determination in this matter. 5. On Issue No. 1, whether the Plainti has established a prima facie case, the Applicant cited Mrao v First American Bank of Kenya Limited & 2 Others [2003] KLR 125 to dene a Prima facie case. The Applicant submits that the law prohibits issuance of a land control board consent to lease a parcel of land that already has another lease registered against it in favour of a third party with the rst lease noted as an encumbrance against the title of the property relying on Sections 8, and 9 of the Land Control Act and Section 54 of the Land Registration Act. Therefore, no valid consent was issued for the registration of the subsequent lease, and as such the said transaction by the 5th Defendant was invalid. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5698/eng@2026-09-17 5

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6. On the same issue, the Applicant relied on the case of Dina Management Ltd v County Government of Mombasa & Another [2021]eKLR and Funzi Development Ltd & Others v County Council of Kwale, Mombasa Civil Appeal No. 252 of 2005 [2014] eKLR where the court armed the sanctity of registered interests and held that irregular registrations cannot override valid proprietary rights. 7. The Applicant also cited Section 79 of the Land Registration Act submitting that the Registrar lawfully cancelled the 5th Defendant’s earlier fudged lease and once rectication was done, the Registrar became functus ocio and could not sit in an appeal or a review of its decision to rectify so as to reinstate the 5th Defendant’s lease. 8. The Applicant submits that it has demonstrated clear and cogent evidence that it has legal, proprietary and contractual rights over the suit properties and has demonstrated that the Defendants have infringed on those rights so as to warrant an explanation or a rebuttal and has demonstrated a prima facie case with high likelihood of success at the hearing. 9. On Issue No. 2, whether the Plainti stands to suer irreparable harm if the orders sought in the application are not granted, the Applicant cited the case of Nguruman Limited v Jan Bonde Nielsen and 2 Others [2014] eKLR and Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR where the court held that a party has to demonstrate irreparable harm in a prima facie case. The Applicant submits that it runs an eco-friendly tourist camp and wildlife conservation programs on the suit property which are both commercially sensitive and of signicant public interest and the Defendant’s actions will occasion irreparable harm which cannot be adequately compensated with damages as underscored in Nguruman Limited (supra) and an injunctive relief is necessary to preserve the status quo, protect the Plainti’s proprietary and ecological interests, and prevent further degradation of the suit property. 10. On Issue No. 3, whether the balance of convenience tilts in favour of the Plainti, the Applicant submits that in the case of Giella v Cassman Brown 7 Company Limited (supra) the court considers the issue of balance of convenience only if in doubt as regards the rst two principles, prima facie case and irreparable harm which the Applicant has demonstrated. The Applicant submits the balance of convenience titles decisively in their favor as disruption of its operations would cause disproportionate harm compared to any inconvenience to the Respondents. 11. As regards the status quo, the Applicant cited the case in James R. Ketuyio & Others v Mara North Holdings Limited & Another, Nakuru High Court Civil Case No. 154 of 2011 and submits that an order of injunction would help maintain and preserve the status quo on the suit property. 12. The Applicant submits that it is therefore in the best interest of justice that the interlocutory injunctions sought in the application dated 20.04.2026 be granted as prayed, together with costs. Defendants’ submissions 13. The Defendants did not le submissions. 14. Before framing the issues for determination, the court notes that both the Plainti/Applicant and the 5th Defendant/Respondent have exhibited leases over Transmara/Kimintet C/5. The validity or otherwise of the leases cannot be determined at the interlocutory stage and shall be determined once the matter goes for full hearing, so that evidence in support of registration of each lease can be tested, by the normal rules of evidence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5698/eng@2026-09-17 6

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Issues for Determination 15. Having analysed the Application the rival adavits and the submissions, considered the law the court frames the following as issues for determination. i. Whether the application meets the threshold for grant of a temporary injunction and is thus merited? ii. What reliefs ought to issue. iii. Who bears the costs of the Application. Analysis and Determination 16. The principles for grant of a temporary injunction were well stelled in the case of Giella Vs. Cassman Brown case, the said principles are “Firstly, an Applicant must show a primafacie case with a probability of success, secondly an interlocutory injunction will not normally be 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 17. Now applying the said principles to this matter. Starting with the denition of a primafacie case as dened in Mrao Limited Vs. First American Bank Limited, where a primafacie was dened as “which on the material presented, a tribunal properly directing itself will conclude that there exists a right which is apparently been infringed by the opposite party so as to call for an explanation or rebuttal from the later…. A prima facie case is more than an arguable case. It is not sucient to raise issues. The evidence must show an infringement of a right and the probability of success of the Applicants case upon trial. That is clearly a standard which is higher than an arguable case…” 18. Has the Applicant established a primafacie case? 19. As noted earlier in the Ruling the gravamen of the Applicants case is the existence of a lease in its favour over Transmara/Kimintet C/5, The 5TH Defendant/Respondent has equally exhibited a lease over the said property. the validity and/or legality of the said leases cannot be determined at the interlocutory stage, but can only be determined after the matter goes for hearing. 20. In light of the above, the Applicant cannot be said to have established a prima facie with probability of success at this interlocutory stage. 21. Having not established a prima facie, the court cannot inquire on the other two principles in Giella Vs. Cassman Brown as was stated in Kenya Commercial Finance Ltd Vs. Afraha Limited where the court stated “if prima facie case is not established then irreparable injury and balance of convenience need no consideration”. 22. It follows that the Application has not met the threshold of a grant of a temporary injunction and it is not therefore merited. 23. Having answered issue No. 1, in the negative but in order to preserve the suit property, the court under the powers granted to it vide practice direction 12(K) of Gazette Notice No. 5178 of 2014 hereby issues an order for the maintenance of the status quo, the status quo being the current occupier to continue in occupation while the status quo on the register of the suit property to remain as it is. 24. In view of the fact that the threshold for grant of temporary injunction has not been met, the interim orders issued exparte on 23rd of April 2026 are set aside and in their place the order for maintenance of status quo as aforesaid is issued. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5698/eng@2026-09-17 7

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25. Costs of the application shall be in the cause. 26. Orders accordingly. DATED AT KILGORIS THIS 17TH DAY OF SEPTEMBER, 2026 HON. M.N MWANYALE JUDGE In the presence of CA – Sylvia/Clara Mr. Chepchieng for the Respondent Ms. Omamo for the Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5698/eng@2026-09-17 8

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