Mwambi Investments Limited v Turbisalam Company Ltd

No. 209/1916/1 belonging to the Defendant/Respondent. b) That this Honourable Court be pleased to issue orders compelling the Defendant to remove all obstructions placed on the said access road, restore and decommission the access road to its original condition (now cabro worked) pending the hearing and determination of this suit. c) That the costs of the application be provided for. 2. The Motion is set out on the grounds on the face thereof and supported by the affidavit of Agnes Nyaguthii Mwathi, the Director and Shareholder of Mwambi Investments LimitedCertificate of Incorporation No. C11994, the Plaintiff/Applicant herein. 3. Ms Agnes Nyaguthii Mwathi deponed that the Plaintiff is the registered proprietor of L.R. No. 209/1916/8, I.R. No. 15039/17, situated off 2nd Parklands Avenue, Nairobi. The aforesaid property, she stated, was originally purchased by her late father from its previous owner in 1962; that upon the expiry of the initial lease, a further lease for a term of fifty (50) years commencing in 1999 was granted and that thereafter, the lease was registered in the name of the Plaintiff/Applicant on 3rd December 2001. ELC LC NO. E 182 OF 2026 RULING 2

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4. It was deposed that following the subdivision of the original property, the then owner provided the Plaintiff with a murram access road leading to the suit property, which traverses the edge of the Defendant/Respondent's property. She added that, in 2019, the Plaintiff upgraded the access road by paving it with cabro blocks with the permission and authority of the then owner of the property. 5. Ms. Mwathi deponed that since 1962, the Plaintiff has openly, peacefully, continuously, and uninterruptedly used the access road as of right. She averred that the use has been without force, secrecy, or permission and has continued against the Defendant’s predecessors in title. 6. It is her position that the Defendant has unlawfully blocked, encroached upon, and destroyed the access road, and has instead directed the Plaintiff to use an alternative route. She stated that the proposed alternative is unsuitable, unplanned, and impractical as it traverses riparian land through which the Kibarage River flows and is presently completely flooded, rendering it incapable of providing lawful or reasonable access to the Plaintiff’s property. 7. Ms. Mwathi further averred that, as a consequence of the Defendant’s actions, the Plaintiff has been completely denied access to its property. She added that tenants occupying the apartments on the property have threatened to vacate, and unless the court intervenes, the Plaintiff stands to suffer irreparable loss and damage, including continued denial of ELC LC NO. E 182 OF 2026 RULING 3

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access, which cannot adequately be compensated by an award of damages. 8. In 2020, she stated, following an attempt by the then owner of the Defendant’s property, Mr. Sandeep Desai, to block the access road, she held discussions with him on the issue; that a meeting was subsequently convened between Mr. Desai and his advocate, during which the advocate advised that the Plaintiff has a right to use the access road and that the interests of justice warrant the grant of the orders sought. 9. In response to the Motion, the Defendant/Respondent filed a replying affidavit dated 26th May 2026, sworn by its Managing Director, Mohamed Hassan Turbi. He deponed that the Defendant Nairobi/Block is 35/442 the registered (formerly L.R. proprietor No. of 209/1916/6), situated at the intersection of Kusi Lane and Second Parklands Avenue, and that the Plaintiff’s adjoining properties are Nairobi/Block 35/444 (formerly L.R. No. 209/1916/8) and Nairobi/Block 35/443 (formerly L.R. No. 209/1916/7). 10. He explained that the Plaintiff's application is misconceived, incompetent, and devoid of any legal basis whatsoever and that the alleged access road complained of by the Plaintiff constitutes a clear encroachment onto the Defendant's property and interference with its constitutionally protected right to property under Article 40 of the Constitution. ELC LC NO. E 182 OF 2026 RULING 4

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11. According to Mr. Turbi, the Defendant commissioned an independent survey which established that the alleged access road encroaches onto its land, is not recognized in the survey records maintained by the Survey of Kenya, and does not appear on the Registry Index Map as a lawful access route. According to the survey, the Plaintiff’s properties are lawfully accessed from Masaka Road and not through the Defendant’s land. Further, that there is no Gazette Notice, registered instrument, court order, or any other legal document creating a public right of way or an easement over the Defendant's property. 12. Mr. Turbi explained that under the Land Act, the creation of a public right of way falls exclusively within the mandate of the National Land Commission and must be gazetted by the Cabinet Secretary. This not having been done, the Plaintiff cannot rely on alleged long user alone to establish an enforceable right of access. 13. He also disputed the Plaintiff’s claim of continuous and uninterrupted use of the alleged access road, deponing that the suit property has been the subject of protracted litigation in ELC No. 200 of 2008, culminating in orders for its sale by public auction in 2022, pursuant to which the Defendant acquired the property in 2023. He asserted that the pendency of those proceedings interrupted any alleged prescriptive rights and precluded the acquisition of an easement by long use. ELC LC NO. E 182 OF 2026 RULING 5

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14. Finally, Mr. Turbi maintained that the orders sought would contravene the Land Act and the Physical and Land Use Planning (General Development Permission and Control) Regulations, 2022. He contended that only the National Land Commission is empowered to recommend the creation of a public right of way and that this court lacks jurisdiction to grant the relief sought in the manner proposed. He therefore urged the court to dismiss the application with costs. 15. Vide a further affidavit dated 26th June 2026, the Plaintiff/Applicant, through its Director, Agnes Nyaguthii Mwathi reiterated the contents of her supporting affidavit and maintained that the dispute before the court concerns its long-standing use and enjoyment of the access road traversing the edge of the Defendant’s property, rather than the ownership of the Defendant’s land. 16. Ms. Mwathi deponed that the Defendant’s survey report is incomplete and failed to take into account the historical subdivision of the parent parcel and the actual position on the ground. In contrast, she deposed, the survey report she annexed prepared by Heritage Land Surveyors established that the Plaintiff’s property, the Defendant’s property and the adjoining parcel originally formed part of L.R. No. 209/1916/1 and that, following subdivision in 1956, the then owner provided the access road which has since served the Plaintiff’s property. ELC LC NO. E 182 OF 2026 RULING 6

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17. She further averred that sewer and electricity infrastructure serving the Plaintiff’s disputed access road property was laid through the and approved by the relevant authorities as early as 1967, demonstrating longstanding official recognition of the access route. She also contended that although the Registry Index Map depicts an alternative access from Msanaka Road, not Masaka as referenced by the Defendant, the same is presently occupied by the Kibarage River and a riparian reserve, rendering it unsuitable and impracticable as an access route. 18. According to her, the Defendant’s reliance on the absence of a registered easement is misplaced; that the Plaintiff’s claim is founded on prescription under the Limitation of Actions Act and that the existence and enforceability of such rights are matters for determination upon consideration of the evidence at trial. It is her case that the Defendant’s acquisition of the suit property in 2023 did not extinguish rights that had accrued long before its purchase and it ought to have discovered the existence of the access road upon conducting due diligence. 19. Ms. Mwathi also explained that the approved sewerage connection plan annexed to her supporting affidavit was inadvertently incomplete and accordingly produced the complete approved plan, which she stated had been approved by the then Nairobi City Council on 4 th January 1967. The plan, she explained, clearly depicts the Plaintiff’s ELC LC NO. E 182 OF 2026 RULING 7

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property, the sewer line serving it, and the disputed access road from 2nd Parklands Avenue, thereby confirming that the road existed and was recognized by the relevant authorities as early as 1967. 20. Following the Defendant’s obstruction of the access road, she stated, the Plaintiff and its tenants have been compelled to utilize an alternative rear access which terminates before reaching the property, traverses riparian land prone to flooding, and has become insecure owing to encroachment by informal garages and waste collectors. 21. She maintained that the Plaintiff’s claim is not based on mere convenience but on decades of open, continuous and uninterrupted use capable of giving rise to legally enforceable rights. She further asserted that this court has jurisdiction to determine disputes relating to easements and rights of way under the Limitation of Actions Act and the Land Act. 22. Finally, she deponed that the Plaintiff has established a prima facie case with a probability of success and that, unless the Defendant is compelled to remove the obstruction pending the hearing and determination of the suit, the Plaintiff will continue to suffer substantial hardship, including loss of tenants and interference with the use and enjoyment of its property. In support of her position, she relied on the decision in National Oil Corporation of Kenya Ltd vs ELC LC NO. E 182 OF 2026 RULING 8

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Equator Inn Ltd t/a Tsavo Inn Hotel, Civil Appeal No. 161 of 2019. Submissions 23. The Plaintiff/Applicant filed written submissions dated 30 th June 2026. Counsel submitted that the Plaintiff’s claim is founded on a prescriptive easement acquired through over sixty years of open, peaceful, continuous and uninterrupted use of the disputed access road pursuant to Sections 32, 37 and 38 of the Limitation of Actions Act and Section 28(h) of the Land Registration Act. 24. Such rights, it was submitted, constitute overriding interests which bind subsequent proprietors notwithstanding the absence of registration. Reliance was placed on Maingey v Hillman & 3 Others [2025] KEELC 685 (KLR), Mayfair Holdings Limited v Origa [2024] KEELC 192 (KLR), National Oil Corporation of Kenya Limited vs Equator Inn Limited t/a Tsavo Inn Hotel [2024] KECA 1149 (KLR), and Ludco Limited v Pemca Enterprises Limited & Another [2024] KEELC 115 (KLR). 25. Counsel submitted that the Defendant had erroneously characterized the disputed access road as an encroachment, arguing that even the Defendant’s survey report acknowledged the physical existence of the access road, the only dispute being its legal characterisation. It was further contended that the alternative access from Msanaka Road, exists only on paper, having been overtaken by the Kibarage ELC LC NO. E 182 OF 2026 RULING 9

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River and the attendant riparian reserve, thereby rendering the Applicant's property effectively landlocked. 26. As 19th at July, 2026, the Defendant had not filed submissions, having been granted 14 days from 1 st July, 2026 to do so. Analysis and determination 27. Having considered the pleadings and submissions, the sole issue that arises for determination is whether the Plaintiff/Applicant has met the threshold to warrant the grant of a temporary injunction? 28. The grant of interlocutory injunctions is governed by Order 40 Rule 1 of the Civil Procedure Rules, 2010. The provision empowers the court to issue a temporary injunction where it is demonstrated, by affidavit or otherwise, that the property in dispute is in danger of being wasted, damaged, or alienated, or where a defendant threatens to dispose of property in circumstances that may obstruct or delay the execution of any decree that may ultimately be issued. 29. In determining whether a plea for injunction is merited, the court must have regard to the well-settled principles enunciated in Giella vs Cassman Brown & Co. Ltd [1973] EA 358, namely an applicant must establish a prima facie case with a probability of success, demonstrate that irreparable injury would result if the injunction is not granted, and where the court is in doubt, the matter is to be determined on a balance of convenience. ELC LC NO. E 182 OF 2026 RULING 10

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30. These requirements must be satisfied sequentially. As affirmed by the Court of Appeal in Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR, the establishment of a prima facie case, proof of irreparable harm, and the balance of convenience are distinct and logical hurdles, each of which must be satisfied before the court can grant interlocutory injunctive relief. 31. In Nguruman Limited v Jan Bonde Nielsen & 2 Others(supra), the Court of Appeal affirmed the definition of a prima facie case in Mrao Ltd vs First American Bank of Kenya Ltd(supra) and clarified that an applicant must demonstrate a clear and identifiable right that is directly threatened by the act sought to be restrained. The invasion of the right must be substantive and that there must be urgency to prevent irreparable harm. 32. The Court of Appeal further held that, at the interlocutory stage, the court does not conduct a mini-trial but only determines whether an applicant has shown a bona fide and arguable claim, proved on a balance of probabilities, which appears more likely than not to ultimately succeed. 33. The court will be so guided. 34. By way of brief background, the Plaintiff/Applicant seeks, through the Plaint, a declaration that it has acquired a right ELC LC NO. E 182 OF 2026 RULING 11

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of way over the Defendant/Respondent’s property by prescription and/or easement. It further seeks a declaration that the Defendant’s obstruction, encroachment upon and destruction of the access road are unlawful and constitute an infringement of that right, together with a permanent injunction restraining any further interference with the road. 35. The Plaintiff also seeks mandatory orders compelling the Defendant to remove all obstructions erected on the access road, restore it to its previous condition and grant the Plaintiff unhindered access thereto. 36. The Plaintiff’s case is that its property was acquired in 1962, at which time an access road existed along the edge of the Defendant’s property providing access to its property. It contends that it has used the said access road openly, peacefully, continuously and without interruption since that time and has, by virtue of such long user, acquired a prescriptive easement. According to the Plaintiff, the Defendant has recently blocked, encroached upon and destroyed the access road, thereby unlawfully interfering with its accrued right of way. 37. The Defendant while admitting that its property shares a common boundary with that of the Plaintiff disputes the existence of any enforceable right of way. It contends that the alleged access road constitutes an unlawful encroachment onto its property and that the Plaintiff’s claim is contrary to the provisions of the Land Act. The Defendant ELC LC NO. E 182 OF 2026 RULING 12

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further maintains that no public right of way or easement has been lawfully created or registered over its property and, consequently, the Plaintiff cannot assert an overriding interest capable of binding it. 38. The court has keenly considered the evidence in this regard. At the onset, the court notes that there is not much dispute as regards the physical existence of the impugned access route between the parties’ parcels. What is in issue is the legal ramifications thereof. While the Plaintiff asserts that it has acquired a prescriptive easement through long and uninterrupted use, the Defendant contends that the route constitutes an unlawful encroachment over its property. 39. The parties have also placed before the court competing survey reports with differing conclusions regarding the historical and legal status of the disputed access route. These competing positions raise substantive issues of fact and law that can only be resolved upon a full hearing. At this interlocutory stage, the court cannot make definitive findings on those contested facts, as to do so would amount to conducting a mini-trial. Suffice it to say that under section 32 (1) (c) of the Limitation of Actions Act, where any easement has been enjoyed peaceably and openly as of right and without interruption for a period of 20 years, the right becomes absolute and indefeasible. 40. On the basis of the evidence before this court, the Plaintiff has demonstrated an arguable claim on the use of the ELC LC NO. E 182 OF 2026 RULING 13

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alleged road of access warranting investigation at trial and has therefore established a prima facie case with a probability of success. 41. With respect to irreparable harm, the court in Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR, was categorical that the burden lies on the applicant to show that the threatened injury is real, substantial, and incapable of adequate compensation in damages, and not merely speculative or based on apprehension. 42. The Plaintiff’s evidence is that the disputed access road constitutes the principal means of ingress and egress to its property and that its obstruction has deprived it, its tenants and visitors of reasonable access. It also maintains that the alternative route proposed traverses riparian land, is prone to flooding and is unsuitable and insecure. Critically, this averment has not been disputed. 43. The Plaintiff has further deponed that tenants have threatened to vacate, with some already having done so, thereby interfering with its use and enjoyment of the property. In the circumstances, the court finds that irreparable harm has been demonstrated. 44. On the balance of convenience, the court finds that the same favours preserving the disputed access road pending the hearing and determination of the suit. Such preservation maintains the substratum of the dispute, safeguards the ELC LC NO. E 182 OF 2026 RULING 14

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rights asserted by the parties, and ensures that the final determination of the suit is not rendered nugatory. It is therefore just and equitable that the prevailing position be maintained until the issues in controversy are conclusively determined at trial. 45. In the end, the court finds the Notice of Motion dated 5 th May 2026, to be merited and proceeds to grant the following reliefs: i. A temporary injunction does hereby restraining the Defendant, from interfering with, constructing on, issue blocking, or in any manner whatsoever dealing with the access road serving L.R. No. 209/1916/8 belonging to the Plaintiff/Applicant and passing at the edge of LR No. 209/1916/1 belonging to the Defendant/Respondent pending the hearing and determination of this suit. ii. An order does hereby issue directing the Defendant to remove all obstructions placed on the said access road, pending the hearing and determination of this suit. iii. The Defendant to pay the costs of the application. Dated, signed and delivered virtually in Nairobi this 24 th day of September, 2026. ELC LC NO. E 182 OF 2026 RULING 15

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O. A. Angote Judge In the presence of; Ms Njoroge for Mr. Mareka for Plaintiff/Applicant Ms Kungu for Defendant. Court Assistant: Tracy ELC LC NO. E 182 OF 2026 RULING 16

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