Ndonga v Mutua & 11 others

RULING Introduction 1. This Ruling is delivered in respect of the Plainti's Notice of Motion 19th June 2026. The application is brought pursuant to Order 40 and 51 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and Article 40 of the Constitution of Kenya, 2010, and all other enabling provisions of the law. The Plainti seeks the following orders: a) Spent; b) That temporary injunction be granted to restrain the Defendants/Respondents, whether by themselves, their servants, agents or others whomsoever from selling, entering, using, trespassing, developing or in any other manner howsoever from interfering with land title No. Mavoko Town Block 3/3402 and 3/3403 until hearing and nal determination of this application. c) That temporary injunction be granted to restrain the Defendants/Respondents, whether by themselves, their servants, agents or others whomsoever from selling, entering, using, trespassing, developing or in any other manner howsoever from interfering with land title No. Mavoko Town Block 3/3402 and 3/3403 until hearing and nal determination of the main suit. d) That OCS Mavoko SNP police station do enforce the orders herein. e) The costs of this application be borne by the Respondents. The Plainti ’s Case 2. The Application is founded on the grounds on its face and the Supporting Adavit of Francis Nzioki Ndonga sworn on 19th June 2026. The Plainti's case is that he purchased approximately nine acres from the Defendants through a series of transactions commencing with an agreement dated 20th December 1992. Under that agreement, he purchased four acres from the 1st to 4th Defendants and their mother, Kateve Mutua alias Joyce Kateve Ndunga, at a consideration of Kshs. 44,000/=. He paid the purchase price and was placed in possession. 3. The Plainti further states that on 4th July 1999 he purchased an additional one-acre farm from the 5th to 9th Defendants for Kshs. 27,500/=. He also relies on further agreements under which he purchased another four acres from the 5th to 9th Defendants for Kshs. 111,500/=. His case is that he purchased a total of nine acres, paid the agreed consideration and was given vacant possession. 4. The Plainti states that he settled on the land in 1992, where he has farmed and grazed livestock. In 2016, he permitted his sister, Katunge Mutua (deceased), and her son, Mutua Ivuto, to construct a house on the property. Mutua Ivuto continues to reside there. The Plainti relies on photographs of the homestead and developments on the land. 5. The Plainti's case is that the land formerly known as Plot No. 722 within Lukenya Ranching Scheme was subsequently subdivided into Mavoko Town Block3/3402 and Mavoko Town Block 3/3403. He contends that the nine acres purchased through the agreements are comprised within, or lie across, the two resultant parcels. Together, the two parcels measure approximately twenty acres. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5706/eng@2026-09-17 2

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6. The Plainti further states that despite the transactions and his possession, the Defendants failed to transfer the land to him and instead disposed of portions of it to third parties. In particular, he complains that Mavoko Town Block 3/3403 was transferred to the 10th Defendant and that the Defendants have continued to dispose of portions of Mavoko Town Block 3/3402. He relies on a letter from the Assistant Chief dated 18th June 2026 conrming the alleged sales. 7. It is on that basis that the Plainti seeks to restrain the Defendants from selling, leasing or otherwise dealing with the two parcels pending the hearing and determination of the suit. The 5th Defendant's Case 8. The 5th Defendant opposes the Application through a Replying Adavit sworn by Nduku Mutua Ndunda on 6th July 2026. She contends that that Mavoko Town Block 3/3402 and Mavoko Town Block 3/3403 are separate parcels of land with separate proprietorship. She relies on her membership card in Lukenya Ranching & Farming Co-operative Society Limited and the title documentation relating to the two parcels. 9. The 5th Defendant states that she is an original member of Lukenya Ranching & Farming Co-operative Society Limited under Membership Number 714, which she jointly shares with her late co-wife pursuant to inheritance from their late husband, Mutua Ndunda. Following the allocation process undertaken by the Society, she and her late co-wife were allocated Plot No. 722 within Lukenya Ranching Scheme measuring approximately twenty acres. 10. The 5th Defendant further states that Plot No. 722 was subsequently subdivided into two parcels: Parcel Number Mavoko Town Block 3/3403 measuring approximately 3.150 hectares (approximately eight acres), which was registered in her name, and Parcel Number Mavoko Town Block 3/3402 measuring approximately twelve acres, which was registered in both her name and that of her late cowife. She states that she was entitled to two acres within Parcel 3402, for a total of ten acres. The family of Kateve Mutua (deceased) holds the title deed for parcel 3402. 11. The 5th Defendant states that on 3rd October 2024 she was issued with a Title Deed in respect of parcel 3403 and became the absolute proprietor thereof. She has since continuously retained the original title deed in her possession. She denies selling parcel 3403 or surrendering the original title deed to the Land Registrar. 12. The 5th Defendant states that she was shocked to discover that another person, namely Mary Wanjiku Mwangi, the 10th Defendant herein, whom she has never met and with whom she has never transacted, was subsequently reected as proprietor of the same parcel 3403. She reported the matter to the authorities, and the title was cancelled following investigations. A fresh title was issued in her name. 13. The 5th Defendant denies having sold any piece of land to the Plainti. She states that she has never entered into any sale agreement with the Plainti, whether in 1992, 1999 or at any other time, nor has she ever received any purchase price or consideration from the Plainti. She states that the agreements relied upon by the Plainti purport to attribute sales by members of her family, yet she never participated in nor authorized those transactions. 14. The 5th Defendant further states that the Plainti's residence and developments are situated on parcel 3402, not parcel 3403. She states that her late co-wife, Kateve Mutua (deceased), sold some portion of land to the Plainti, which was to be excised from parcel 3402, a sale to which she never objected, as her two acres of land from the said parcel were not interfered with. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5706/eng@2026-09-17 3

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15. The 5th Defendant contends that the land allegedly purchased by the Plainti has not been identied on the ground or by reference to any identiable portion of the two registered parcels. She contends that the agreements relied upon do not identify the boundaries, beacons or survey particulars of the land allegedly sold. She also disputes the Plainti's assertion that the entirety of the two parcels should be restrained when his claim is for approximately nine acres. 16. The 5th Defendant further contends that the Plainti has approached this Court without making full and frank disclosure of all material facts, and in particular failed to disclose that parcels 3402 and 3403 are separate parcels dierently held and that the house and developments relied upon are on parcel 3402 and not parcel 3403. She prays that the application be dismissed with costs in so far as it relates to her and to parcel 3403 and the two acres comprised in parcel 3402 The Position of the Other Defendants 17. The 1st, 2nd, 3rd, 4th, 6th, 7th, 8th, 9th, 10th, 11th and 12th Defendants did not le any response to the application or submissions in opposition thereto. Submissions 18. The Court directed that the Notice of Motion be heard by way of written submissions. The parties led their submissions outside the timelines prescribed by the Court. The Plainti and the 5th Defendant nevertheless led submissions, which I have considered in determining the application. The Applicant's Submissions 19. In his submissions dated 31st August 2026, the Plainti reiterates that he purchased a portion of land measuring nine (9) acres excised from Mavoko Town Block 3/3402 and Mavoko Town Block 3/3403 from the 1st to 9th Defendants, as evidenced by the sale agreements produced before the Court. He submits that he has established a right which has been infringed and relies on the denition of a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125. 20. The Plainti further submits that the 1st to 4th and 6th to 9th Defendants did not respond to the application and have therefore oered no rebuttal to his claim. He also submits that the 5th Defendant admitted that the late Kateve Mutua, her co-wife, had sold land to him. According to the Plainti, the 5th Defendant has neither alleged forgery nor produced evidence demonstrating that the agreement or the signature appearing on it was forged. 21. On irreparable injury, the Plainti submits that he has been in occupation of the suit property since the purchase, has farmed thereon and has permitted his sister, Katunge Mutua (deceased), and her son, Mutua Ivuto, to construct a permanent home on the property. He contends that he and his family will suer irreparable harm if the Defendants dispose of the suit property, as they risk eviction and loss of their home, and that the resulting injury cannot be adequately compensated by an award of damages. 22. On the balance of convenience, the Plainti submits that it lies in his favour because he has been in possession and occupation of the suit land for over thirty years. He contends that the harm he stands to suer is greater than that which would be suered by the Defendants, whom he says have never been in possession of the land. The 5th Defendant’s Submissions 23. In her written submissions dated 3rd September 2026, the 5th Defendant advances several grounds in opposition to the application. She submits that she is the registered proprietor of Mavoko Town Block https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5706/eng@2026-09-17 4

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3/3403 together with an additional two (2) acres to be hived from Mavoko Town Block 3/3402. She asserts that the foundation of the Plainti’s claim against her, namely that parcel 3403 had been sold to the 10th Defendant, has been overtaken by events. According to her, following investigations by the DCI Machakos, the title to parcel 3403, which had been registered in the name of the 10th Defendant, was cancelled and a fresh title was issued in her name. 24. The 5th Defendant further submits that she is an original member of Lukenya Ranching & Farming Co-operative Society and that the family was allocated Plot No. 722 measuring approximately twenty (20) acres. She states that the plot was subsequently subdivided into parcel 3/3403, measuring approximately eight (8) acres and registered in her name, and parcel 3/3402, measuring approximately twelve (12) acres and registered in her name and that of her late co-wife. She maintains that she has never sold any portion of her allocated land. 25. The 5th Defendant further submits that none of the agreements relied upon by the Plainti identies the portion of parcel 3403 allegedly sold to him. In her submission, the agreements contain no beacons, boundaries or survey particulars by which the alleged portion can be located. She also points to the Plainti’s own case that his residence is situated on parcel 3402. Further, she submits that the agreements show no payment made directly to her and that she did not execute any of the signatures appearing on them. 26. On the rst limb of Giella, the 5th Defendant submits that the Plainti has no registered title and that the interest asserted by him is, at best, equitable. She contends that the Plainti has not demonstrated the clear right necessary to warrant an interlocutory injunction, particularly in respect of parcel 3403, because he has not identied any portion of that parcel allegedly sold to him. She relies on Mary Nduta Kimemia v John Warubi Kibera [2017] KEELC 3123 (KLR) for the proposition that where a purchaser claims an unascertained portion of a larger parcel, the remedy does not lie in an order of temporary injunction but in a claim for refund. 27. On the second limb, the 5th Defendant submits that the Plainti’s claim is, in substance, monetary and that damages would be an adequate remedy. She contends that the alleged injury arising from eviction concerns, on the Plainti’s own case, the persons who sold and permitted him to settle on parcel 3402 and not her parcel 3403, which he does not occupy. She relies on Nguruman Limited v Jan Bonde Nielsen & 2 Others for the proposition that an interlocutory injunction should not ordinarily issue where damages would be an adequate remedy. 28. On the balance of convenience, the 5th Defendant submits that it is a serious matter to restrain a registered proprietor from dealing with property registered in her name in the absence of justiable grounds. She further submits that prayers 2 and 3 seek to restrain dealings with the whole of parcels 3402 and 3403, which together measure approximately twenty (20) acres, whereas the Plainti claims approximately nine (9) acres. She relies on Chikala v Abdi [2023] KEELC 18337 (KLR), where the Court held that where the entire land is not in dispute, the portion claimed must be ascertained and mapped out, and that where the claimed portion remains unascertained, an application for injunction may be premature. Issues for Determination 29. Having considered the Application, the Supporting Adavit, the Replying Adavit, and the written submissions of the parties, the following issues arise for determination: a) Whether the Notice of Motion dated 19th June 2026 meets the threshold for the grant of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5706/eng@2026-09-17 5

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b) Who will bear the Costs of Notice of Motion application dated 19th June, 2026? Whether the Plaintis’ Application dated 19th June, 2026 meets the threshold required for a temporary injunction. 30. The Court’s power to grant interlocutory injunctive orders is derived from section 63(c) and (e) of the Civil Procedure Act. Under section 63(c), the Court may grant a temporary injunction where necessary to prevent the ends of justice from being defeated, while section 63(e) empowers the Court to make such other interlocutory orders as may appear just and convenient. 31. The circumstances in which that jurisdiction may be exercised are prescribed under Order 40 Rule 1 of the Civil Procedure Rules, which provides: 32. 33. a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or b) That the defendant threatens or intends to remove or dispose of his property in circumstances aording reasonable probability that the Plainti will or may be obstructed or delayed in execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal, or disposition of the property as the court thinks t until the disposal of the suit or until further orders.” The principles governing the exercise of the jurisdiction conferred under Order 40 Rule 1 are now well settled. In the celebrated case of Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court held that an applicant for an interlocutory injunction must satisfy three conditions: a) First, the applicant must establish a prima facie case with a probability of success. b) Second, the court must consider whether the applicant would suer irreparable injury that cannot be adequately compensated by damages. c) Third, if the court is in doubt, the matter is to be decided on a balance of convenience. The position in Gilella v Cassman Brown (supra) was explained in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) KECA 606 (KLR) where the Court of Appeal held that; “ In an interlocutory injunction application the Applicant has to satisfy the triple requirements to (a) establishes his case only at a prima facie level (b) demonstrates irreparable injury if a temporary injunction is not granted and (c) allay any doubts as to b, by showing that the balance of convenience is in his favour. These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5706/eng@2026-09-17 6

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34. I now proceed to consider whether the Plainti has satised the requirements for the grant of an interlocutory injunction. Whether the Plainti has established a Prima Facie Case 35. The meaning of a prima facie case was subsequently explained by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR), as follows: “ ... in civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 36. The Court is not required at this stage to conclusively determine the rights of the parties. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [supra], the Court of Appeal emphasised that an interlocutory application is not the occasion for a mini-trial or denitive determination of contested questions of fact. The Court stated: “ We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a nal decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona de question to raise as to the existence of the right, which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.” 37. The Plainti’s case is founded on the agreements dated 20th December 1992 and 4th July 1999. He contends that, pursuant to those agreements, he purchased a total of nine acres from the Defendants and their late mother, Kateve Mutua alias Joyce Kateve Ndunga. The agreements state the acreage sold and the consideration paid. The Plainti’s further case is that the land was part of Plot No. 722 in Lukenya Ranching Scheme, which was subsequently subdivided into Mavoko Town Block 3/3402 and Mavoko Town Block 3/3403. 38. The 5th Defendant contests the Plainti’s claim. She denies entering into any agreement with the Plainti or receiving any consideration from him. She maintains that the agreements relied upon concern transactions undertaken by other family members and could not bind her interest in the land. She further relies on the separate registration of parcels Mavoko Town Block 3/3402 and 3403 and contends that the Plainti’s occupation is on parcel 3402, while parcel 3403 is registered in her name. She also challenges the Plainti’s assertion that the agreements relate to nine acres, contending that the portion allegedly sold to him has not been identied on the ground or within the registered parcels. 39. I have considered the positions of the parties and the material placed before the Court. I note that the said agreements identify the land by acreage but do not identify the portions sold by reference to the present parcel numbers, boundaries or beacons. No survey plan, mutation form, deed plan or other survey document has been produced showing the position of the nine (9) acres within parcels Mavoko Town Block 3/3402 and 3403. The Plainti has also not stated what acreage of the nine (9) acres falls within each parcel. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5706/eng@2026-09-17 7

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40. The absence of this evidence means that the precise extent and location of the interest claimed by the Plainti cannot be ascertained from the material presently before the Court. This is material because the Plainti seeks an injunction restraining dealings with parcels Mavoko Town Block 3/3402 and 3403, whose combined acreage is considerably greater than the nine (9) acres said to have been purchased. The Court cannot, on the material before it, identify the particular portion of either parcel to which the agreements relate. 41. The question of an unascertained portion of a larger parcel was considered in Mary Nduta Kimemia v John Warubi Kibera [2017] KEELC 3123 (KLR), where the Plainti claimed to have purchased two acres out of a parcel measuring approximately three acres. The portion said to have been purchased had not been separately subdivided or otherwise identied. The Court found that this made it dicult to determine the particular portion over which an injunction was sought. 42. I appreciate that the grant of an injunction ordinarily requires the Court to identify the property or interest to which the order relates. In the present case, the nine (9) acres claimed by the Plainti have not been precisely identied within the two registered parcels. The Court must, however, determine the application on the facts placed before it and in a manner that best serves the interests of justice. In Nguruman Limited v Jan Bonde Nielsen & 2 Others (supra) the Court of Appeal reiterated that each case must be considered on its own facts and circumstances and that the Court should adopt the course which carries the lower risk of injustice if it ultimately turns out to have been wrong. 43. The principle was similarly expressed in Jan Bonde Nielsen v Herman Phillipus Steyn alias Hermannus Phillipus Steyn & 2 Others [2012] KEHC 5529 (KLR), where the Court, drawing from Suleiman v Amboseli Resort Ltd [2004] eKLR and Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 stated that: “ I believe that in dealing with an application for an interlocutory injunction, the court is not necessarily bound to the three principles set out in the Giella vs Cassman Brown case. The court may look at the circumstances of the case generally and the overriding objective of the law. In Suleiman vs. Amboseli Resort Ltd (2004) eKLR 589 Ojwang Ag. J (as he then was) at page 607 delivered himself thus:- ‘ ...counsel for the defendant urged that the shape of the law governing the grant of injunctive relief was long ago in Giella vs Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel in that point, for the law has always kept growing to greater levels of renement, as it expands to cover new situations not exactly foreseen before. Justice Homan in the English case of Films Rover International made this point regarding the grant of injunctive relief (1986) 3 All ER 772 at page 780-781:- “ A fundamental principle is that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”….” 44. In the present case, the Plainti has placed before the Court evidence of his occupation of the land for over thirty years. He states that he has lived on the land with his relatives, farmed it and grazed livestock thereon. He has also produced photographs showing the homestead and developments on the land. The fact of his occupation is admitted by the 5th Defendant, who states that the Plainti’s residence and developments are situated on parcel Mavoko Town Block 3/3402. 45. The 5th Defendant further states that her late co-wife, Kateve Mutua, sold a portion of parcel 3402 to the Plainti and that the portion was to be excised from that parcel. She states that she did not object to the transaction because her two acres in the parcel were not aected. The Plainti’s occupation is therefore established by the evidence before the Court and is not disputed by the 5th Defendant. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5706/eng@2026-09-17 8

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existence of a transaction pursuant to which the Plainti came into possession is also acknowledged in her evidence. 46. The Court therefore nds that, notwithstanding the absence of material identifying the precise nine acres claimed by the Plainti, the evidence before it discloses an interest in the land capable of protection pending the hearing of the suit. The question whether the Plainti acquired nine acres, the precise location of the portion allegedly sold to him and the legal eect of the transactions upon the registered interests of the parties remain matters for determination at the trial. 47. Accordingly, the Court is satised that the Plainti has established a prima facie case. The Court will therefore proceed to consider whether the Plainti has demonstrated that he stands to suer irreparable injury if the injunction is not granted. Whether the Applicant will suer irreparable injury 48. The second limb that the Plainti must satisfy is that he stands to suer irreparable injury which an award of damages cannot adequately compensate if the orders sought are not granted. 49. The Court in Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) dened irreparable harm and stated; “ Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sucient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” 50. The Plainti states that he has occupied the land since 1992 and has established his residence thereon. He has produced photographs showing the homestead and other developments on the land. He further states that he has farmed the land and grazed livestock thereon and that his relatives continue to reside on the property. The 5th Defendant conrms that the Plainti’s residence and developments are situated on parcel Mavoko Town Block 3/3402. 51. The Plainti further states that the Defendants have proceeded to dispose of portions of the land and relies on the letter dated 18th June 2026 from the Assistant Chief in support of that contention. The alleged dealings with the land therefore place the Plainti’s occupation and the interest he asserts under the agreements at risk pending the determination of the suit. 52. The nature of the interest asserted by the Plainti and the circumstances of his occupation are relevant to the question whether damages would provide an adequate remedy. The Plainti has been in occupation for over thirty years and has established a home on the land. If the land occupied by him is alienated or otherwise dealt with pending the hearing of the suit, his occupation may be disrupted and the subject matter of the dispute may be placed beyond the eective control of the Court. 53. The Court therefore nds that the Plainti has demonstrated that he stands to suer injury which an award of damages would not adequately compensate if the threatened dealings with the land are allowed to proceed. The second limb for the grant of a temporary injunction is accordingly satised. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5706/eng@2026-09-17 9

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Whether the balance of convenience favours the grant of an injunction 54. The nal consideration is whether the balance of convenience tilts in favour of granting the orders sought. In Pius Kipchirchir Kogo (supra), the Court explained the concept of balance of convenience 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 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." 55. Similarly, in Paul Gitonga Wanjau Vs Gathuthis Tea Factory Company Ltd & 2 Others (2016) KEHC 7263 (KLR), the Court observed that where there is doubt as to the parties' respective rights, the Court ought to consider which party is likely to suer the greater harm and, in doing so, seek to maintain the status quo pending the determination of the suit. 56. Further, in Robert Mugo Wa Karanja Vs Ecobank (Kenya) Limited & Another [2019] KEHC 10298 (KLR), the Court held that: “ circumstances for consideration before granting a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules requires proof that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose of the property; the Court is in such situation enjoined to grant a temporary injunction to restrain such acts." 57. I have considered the circumstances of the present case. The Plainti has occupied the land for many years and has established his residence and developments thereon. The 5th Defendant conrms that occupation. The 5th Defendant also acknowledges that a portion of parcel 3402 was sold to the Plainti by her late co-wife and was intended to be excised from that parcel. 58. On the other hand, the Plainti seeks an injunction over the entirety of parcels Mavoko Town Block 3/3402 and 3403, whose combined acreage is substantially greater than the nine acres which he claims to have purchased. The precise location of the nine acres has not been established at this stage. An order restraining dealings with the entirety of the two parcels would therefore extend beyond the portion which the evidence presently places in the Plainti’s occupation. 59. The Court must preserve the subject matter of the dispute while at the same time ensuring that the interim order corresponds with the circumstances disclosed by the evidence. The Plainti’s established occupation provides a clear basis upon which the Court can preserve the position pending trial. At the same time, the unresolved extent and location of the interest claimed call for restraint in dening the scope of the order. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5706/eng@2026-09-17 10

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60. In the circumstances, I nd that the lower risk of injustice lies in preserving the Plainti’s occupation and the existing state of aairs on the portion of the land which he occupies, pending the hearing and determination of the suit. This course protects the interest which the Plainti has demonstrated while leaving the parties’ competing claims to the precise acreage and its location for determination at the trial. 61. The balance of convenience therefore favours the grant of an injunction, limited to the portion presently occupied and developed by the Plainti, pending the hearing and determination of the suit. Conclusion 62. Having considered the material placed before the Court, I nd that the Plainti has established a prima facie case and has demonstrated that he stands to suer injury that an award of damages would not adequately compensate. The balance of convenience also favours preservation of his occupation pending the hearing and determination of the suit. 63. The Court has, however, found that the precise location of the nine (9) acres claimed by the Plainti within parcels Mavoko Town Block 3/3402 and 3403 has not been established at this stage. The interim protection must therefore be conned to the portion presently occupied and developed by the Plainti. This preserves the position disclosed by the evidence while leaving the parties’ competing claims to the extent and location of the land for determination at trial. 64. In the result, the Plainti’s Notice of Motion dated 19th June 2026 succeeds in part. The Court makes the following orders: a) A temporary injunction be and is hereby issued restraining the Defendants/Respondents, whether by themselves, their servants, agents or others whomsoever, from selling, entering, using, trespassing, developing or in any other manner howsoever interfering with the portion of Mavoko Town Block 3/3402 presently occupied and developed by the Plainti, pending the hearing and nal determination of the main suit. b) The prayer for an order directing the Ocer Commanding Station, Mavoko SNP Police Station, to enforce the orders herein is declined. c) Costs of the Notice of Motion shall abide the outcome of the suit. It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 17TH DAY OF SEPTEMBER, 2026. HON. J. N. KUYIONI JUDGE 17.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Catherine Court Assistant. Mr. Mutunga holding brief for Mr. Musyimi for the Applicant Ms. Muimi for the 5th Defendant. Ms. Momanyi holding brief for Ms. Mumo for the Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5706/eng@2026-09-17 11

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