County Government of Garissa v Basaane Mohamud Osman (Sued on behalf of the estate of Hassan Galbinoor – Deceased) & 4 Others

7. The Plaintiff asserts that the property vested in it under Article 62(2) of the Constitution, to be held in trust for the residents of Garissa County. It challenges the subsequent allocation and registration of leasehold interests over the land in favour of the 1st and 2nd Defendants, contending that the allocation was undertaken without compliance with the constitutional and statutory procedures governing the alienation and disposal of public land. 8. In support of the application, the Plaintiff exhibited, among other documents, a copy of the certificate of title issued in favour of the 1st and 2nd Defendants; photographs said to show the present use of the land as a waste disposal facility; minutes of the defunct Municipal Council of Garissa dated 3rd June 1993 designating the land as a waste disposal site; and correspondence relating to investigations into the allocation and registration of the property. 9. The Plaintiff maintains that unless the property is preserved, the 1st and 2nd Defendants may take possession, subdivide, lease, charge, sell, develop or transfer it to third parties. It contends that such action would deprive the residents of Garissa Municipality of an essential public waste disposal facility and expose them to serious public health and environmental risks. 10. On the plea of res judicata, the Plaintiff submits that it was not a party to Garissa ELC Case No. E003 of 2023 and does not claim under any of the parties to that suit. It further argues that the former suit concerned trespass and private proprietary rights, whereas the present suit raises questions concerning the alleged unlawful alienation of public land, constitutional trusteeship, environmental protection and the legality of the 1st and 2nd Defendants’ title. C. The 1st and 2nd Defendants’ Case 11. The 1st and 2nd Defendants contend that they are the duly registered leasehold proprietors of the suit property. They state that they acquired the property through a government lease dated 9th June 2021 for valuable consideration and were issued with a certificate of title on 23rd February 2022 for a term of 99 years. 12. They further contend that the validity of their title was considered and upheld in Garissa ELC Case No. E003 of 2023, in which the Court declared them the lawful proprietors of the suit property. In their view, the present suit and application are an impermissible collateral attack on that judgment and are barred by the doctrine of res judicata. 13. The 1st and 2nd Defendants also submit that the Plaintiff has not demonstrated any registered or legally protectable interest in the property. They argue that the allegations of fraud and unlawful allocation have not been proved and that the apprehension that they may sell, charge or otherwise alienate the property is speculative. 14. They consequently contend that the Plaintiff has not established a prima facie case or demonstrated any irreparable injury. They submit that the balance of convenience favours them as the registered proprietors and decree-holders and urge the Court to dismiss the application with costs. Page 2 of 7

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D. Issues for Determination 15. Having considered the application, affidavits, submissions and the material placed before the Court, the following issues arise for determination: i) Whether the application is barred by the doctrine of res judicata; and ii) Whether the Plaintiff has satisfied the threshold for the grant of a temporary injunction pending the hearing and determination of the suit. E. Applicable Legal Principles 16. The doctrine of res judicata is codified in section 7 of the Civil Procedure Act, which provides: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 17. In Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal held that for res judicata to apply, the matter in issue must be identical in both suits; the parties must be the same or litigating under the same title; there must have been a final determination; the former court must have been competent; and the issue must have been raised and finally determined in the former suit. These requirements must be established conjunctively. 18. Order 40 of the Civil Procedure Rules provides for the power to grant a temporary injunction. Giella v Cassman Brown & Co. Ltd [1973] EA 358 set out the governing principles. An applicant must establish a prima facie case with a probability of success; demonstrate that, unless the injunction is granted, it stands to suffer irreparable injury which cannot adequately be compensated by damages; and, where the Court is in doubt, show that the balance of convenience favors the grant of the injunction. 19. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, a prima facie case was described as: “…a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 20. The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR emphasized that the three conditions are distinct and sequential hurdles. The Court must first be satisfied that a prima facie case has been established before considering irreparable injury and, where necessary, the balance of convenience. 21. At the interlocutory stage, the Court need not make definitive findings on contested questions of ownership, fraud, or the validity of title. Its task is to determine whether Page 3 of 7

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the applicant has presented a sufficiently serious case to warrant preserving the subject matter pending trial. F. Analysis and Determination Whether the application is res judicata? 22. The 1st and 2nd Defendants’ plea of res judicata is founded on the judgment delivered in Garissa ELC Case No. E003 of 2023. Although that suit and the present proceedings concern the same property, identity of subject matter is not, by itself, sufficient to establish res judicata. 23. The present suit is between the County Government of Garissa as Plaintiff and, among others, Basaane Mohamud Osman and Shukri Santur Iman as Defendants. The former suit was instituted by the present 1st and 2nd Defendants against persons who are not parties to the present proceedings. 24. There is no allegation or evidence that the County Government of Garissa was a party to the former suit or that it claims through any of the parties to that suit. In the present proceedings, the Plaintiff asserts a distinct constitutional and statutory interest in the property as alleged public land vested in it in trust for the residents of Garissa County. 25. The issues raised in the two proceedings are also materially different. The principal cause of action in Garissa ELC Case No. E003 of 2023 was trespass, and the present 1st and 2nd Defendants in that case sought orders restraining the defendants in that suit from trespassing upon or otherwise interfering with the suit property. 26. The present suit, on the other hand, challenges the process through which the suit property was allegedly converted from public land and registered in favor of the 1st and 2nd Defendants. It raises questions concerning the status of the land, the legality of its allocation, the validity of the resulting title and the continued use of the property as a public waste disposal facility. 27. These questions were not shown to have been directly and substantially in issue between the present parties or to have been heard and finally determined in the former suit. The earlier judgment may constitute relevant evidence at the trial, but it does not, on the material presently before the Court, bar the Plaintiff from pursuing its distinct claim. 28. I therefore find that the requirements prescribed by section 7 of the Civil Procedure Act have not been established. The plea of res judicata fails. Whether a prima facie case has been established? 29. The Plaintiff’s case is that the suit property was historically designated and used as a public waste disposal site and could not lawfully have been alienated and registered in favor of private persons without compliance with the constitutional and statutory framework governing public land. 30. In support of that claim, the Plaintiff exhibited a copy of the certificate of title issued in favor of the 1st and 2nd Defendants; minutes of the defunct Municipal Council of Garissa dated 3rd June 1993 said to designate the site for waste disposal; photographs Page 4 of 7

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showing its alleged present use; correspondence addressed to the National Land Commission; and a letter dated 30th May 2025 from the Garissa Sub-County Directorate of Criminal Investigations to the Chief Land Registrar relating to investigations into the alleged grabbing of the land. 31. The Plaintiff’s allegations are contested. The 1st and 2nd Defendants rely on their registration as proprietors and on the judgment delivered in Garissa ELC Case No. E003 of 2023. 32. Registration ordinarily vests in a proprietor the rights and privileges conferred by sections 24 and 25 of the Land Registration Act. Those rights are, however, subject to the qualifications prescribed by section 26 of the Act. In Munyu Maina v Hiram Gathiha Maina [2013] eKLR, the Court of Appeal held that where the root of a registered proprietor’s title is challenged, it is not sufficient merely to produce the instrument of title; the proprietor must go beyond the instrument and demonstrate that the acquisition was lawful, formal and free from any encumbrance. 33. Similarly, in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), the Supreme Court affirmed that a title founded upon an unlawful allocation of public land cannot enjoy constitutional or statutory protection. Consequently, where the legality of the process through which title was acquired is directly challenged, production of the certificate of title does not, without more, conclusively dispose of the challenge. 34. The judgment in the former suit is similarly not dispositive of the allegations made by the Plaintiff. On the evidence presently before the Court, it has not been shown that the alleged public character of the property or the legality of its alienation was conclusively adjudicated upon as between the parties now before the Court. 35. The material produced by the Plaintiff raises a serious and bona fide question as to the historical status and use of the property and the process through which leasehold interests were created in favor of the 1st and 2nd Defendants. Those matters call for an answer and can only be conclusively determined after the parties have presented their evidence at trial. 36. I am therefore satisfied that the Plaintiff has established a prima facie case within the meaning of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others. Whether the Plaintiff may suffer irreparable injury? 36. The Plaintiff’s apprehended harm is not confined to the monetary value of the land. It contends that the property is presently used as a public waste disposal facility serving Garissa Municipality and that its closure or conversion to private use would disrupt waste management and expose the residents to environmental degradation and public health risks. 37. The 1st and 2nd Defendants have not specifically controverted the Plaintiff’s assertion that the property is presently being used as a waste disposal site. The potential loss of an operational public waste disposal facility and the resulting risk to public sanitation and the right to a clean and healthy environment cannot readily be quantified or adequately remedied by an award of damages. Page 5 of 7

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38. There is also a risk that, unless the property is preserved, it could be subdivided, transferred, charged or otherwise dealt with in a manner that would complicate the proceedings and expose the suit property to third-party interests. 39. I am consequently satisfied that the threatened harm is substantial and is not one that would adequately be compensated by an award of damages. Balance of convenience 40. The status presently obtaining, on the evidence before the Court, is that the suit property is being used as a public waste disposal facility. The purpose of the injunction is to preserve the property in that state pending the hearing and determination of the competing claims. 41. If the injunction is refused and the 1st and 2nd Defendants proceed to subdivide, alienate, charge or develop the property, the public may lose the use of a facility said to be essential to waste management within Garissa Municipality. The potential inconvenience and environmental consequences would affect a substantial section of the public. 42. Conversely, if the property is preserved and the 1st and 2nd Defendants ultimately succeed at trial, any loss occasioned by the temporary restraint is capable of assessment and compensation. The Plaintiff is a County Government with perpetual succession and a recurrent budget and would be capable of satisfying such an award. 43. The greater risk of injustice therefore lies in refusing the injunction. The balance of convenience favours preservation of the property pending the hearing and determination of the suit. 44. In reaching this conclusion, the Court has not made a final determination on the ownership or legal status of the suit property, the alleged fraud, or the validity of the 1st and 2nd Defendants’ title. Those questions are reserved for determination at the trial upon consideration of the full evidence. G. Disposition 45. The Notice of Motion dated 2nd October 2025 is merited. It is accordingly allowed in the following terms: i) Pending the hearing and determination of the suit, a temporary injunction is hereby granted restraining the 1st and 2nd Defendants/Respondents, whether by themselves, their agents, employees or servants, from occupying, interfering with, leasing, charging, selling, subdividing, transferring or in any other manner dealing with Land Parcel L.R. No. 31332 (I.R. No. 257283), situated to the north-east of Garissa Township within Garissa County. ii) The costs of the application shall be in the cause. 46. Orders accordingly. DATED, SIGNED AND DELIVERED THIS 24TH DAY OF SEPTEMBER 2026. Page 6 of 7

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DR. OMONDI R. OWINO, FCIArb ENVIRONMENT AND LAND COURT JUDGE DELIVERED VIRTUALLY ON THE TEAMS PLATFORM IN THE PRESENCE OF: Ms Masibo for the Plaintiff/Applicant Mr. Mugwe Nyaga for the Defendant/Respondents N/A for 3rd and 4th Defendants N/A for the interested party Mr. Mohamed Dabar (Court Assistant) Page 7 of 7

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