Langat v Muigai Commercial Agencies Ltd & 6 others

c. Spent. d. That pending the hearing and determination of this suit, an order of injunction be and is hereby issued restraining the Defendants, whether by themselves, their agents or servants, from trespassing onto, interfering with and/or in any manner whatsoever dealing with the parcels of land known as Land Reference Nos. 12610/33 I.R. 57048/1, 12610/34 I.R. 57049/1 and 12610/35 I.R. 57050/1, situate North East of Mavoko Township in Machakos District. e. That the costs of this Application be provided for. 2. The Application is supported by the Plainti’s adavit sworn on 16th June 2026. The Plainti deposed that he purchased the suit properties from the 1st Interested Party in 1992 and was subsequently registered as the proprietor. He took possession of the suit properties where he conducted farming activities and permitted other persons to reside. 3. According to the Plainti, he obtained a loan facility of Kshs. 24,000,000/= from Post Bank Credit Limited, secured by the suit properties. Following the liquidation of Post Bank Credit Limited, he approached the 5th Defendant for a facility of Kshs. 38,000,000/= to take over the earlier facility. He contended that although the 5th Defendant paid Kshs. 20,000,000/= to Post Bank Credit Limited, it failed to advance the balance of Kshs. 18,000,000/= as agreed. 4. The Plainti further averred that despite having repaid Kshs. 9,035,708/=, the suit properties were purportedly sold by public auction without service upon him of the requisite statutory notices. He challenged the validity of the auction and the subsequent transfer of L.R. No. 12610/33 to the 1st Defendant and L.R. Nos. 12610/34 and 12610/35 to the 2nd Defendant. He maintained that the transactions were fraudulent and procedurally defective and that the 1st and 2nd Defendants had attempted to forcibly enter the suit properties, demolish structures and evict their occupants. 5. The 2nd Defendant opposed the Application through the Replying Adavit sworn by its director, Isaac G. Wanjohi, on 6th July, 2026. It maintained that it lawfully purchased L.R. Nos. 12610/34 and 12610/35 at a public auction conducted on 25th April, 2006 pursuant to the Chargee’s exercise of its statutory power of sale. It stated that it paid the purchase price and was subsequently registered as proprietor of the two properties. 6. The 2nd Defendant further contended that the suit properties were vacant at the time of purchase and that the persons presently occupying them are trespassers. It averred that it had obtained a decree in Machakos ELC Case No. E002 of 2021 authorizing the eviction of the trespassers and that the present proceedings were instituted to frustrate the execution of that decree. It consequently maintained that the Plainti had neither established a prima facie case nor demonstrated that he stood to suer irreparable harm. 7. The 5th Defendant similarly opposed the Application through a Replying Adavit dated sworn by Paul Chelanga on 20th July, 2026, its Loan Recoveries Manager. It maintained that the suit properties were sold by public auction on 25th April, 2006 pursuant to its exercise of the statutory power of sale and were subsequently transferred to the purchasers. It contended that the Plainti’s equity of redemption was thereby extinguished and that he no longer had a proprietary interest capable of protection by an injunction. 8. The 5th Defendant further challenged the jurisdiction of this Court to entertain the suit and the Application. It contended that the dispute arises from a commercial lending transaction and concerns https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5803/eng@2026-09-24 2

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the exercise of a chargee’s statutory power of sale and, therefore, falls within the jurisdiction of the High Court. 9. The 5th Defendant also averred that the Plainti had previously instituted Milimani HCCC No. 238 of 2003 and Milimani ELC Case No. 352 of 2014, in which he challenged the exercise of the statutory power of sale and sought substantially similar reliefs. It maintained that, in view of the previous proceedings, the present suit is barred by limitation and res judicata and amounts to an abuse of the Court process. 10. On 9th July 2026 the Court directed that the Application be canvassed by way of written submissions. However as at the time of preparing this Ruling none of the parties had complied with those directions. Issues for Determination 11. Having considered the Application, the supporting adavit and the annexures thereto, the replying adavits and the pleadings on record, the Court nds that the following issues arise for determination: a. Whether this Court has jurisdiction to entertain the suit and the Application; b. Whether the suit and the Application are barred by the doctrine of res judicata; and c. Whether the Plainti’s Application dated 16th June, 2026 meets the threshold for the grant of a temporary injunction. Analysis and Determination Whether this Court has jurisdiction to entertain the suit and the Application 12. In its Replying Adavit sworn on 20th July, 2026, the 5th Defendant challenges the jurisdiction of this Court. The principles governing a challenge to jurisdiction are well settled. An objection to jurisdiction, once raised, must be determined at the outset. Where a court nds that it lacks jurisdiction, it must down its tools. The principle was stated by Nyarangi JA in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), in the following terms: “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 13. Still discussing the signicance of the question of jurisdiction of court or tribunal, the late Nyarangi JA (as he then was) summed up the statement of principle as follows: “ It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined. I can see no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5803/eng@2026-09-24 3

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14. In its salutary judgment in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court expressed itself as follows on the important question of jurisdiction: “ A court’s jurisdiction ows from the either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 15. This Court’s jurisdiction is derived from Article 162 (2)(b) of the Constitution which provides as follows: “ Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (b) 16. 17. the environment and the use and occupation of, and title to, land.” The constitutional jurisdiction is given eect to by the Environment and Land Court Act. Section 13(1) and (2) thereof provide: “ (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— a. relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; b. relating to compulsory acquisition of land; c. relating to land administration and management; d. relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and e. any other dispute relating to environment and land.” The jurisdiction so conferred is not without limits. The Court of Appeal in Co-operative Bank of Kenya Limited v Njuguna & 5 others [2017] KECA 79 (KLR) addressed the boundary between this Court and the High Court in matters involving charges. The Court held that “ ... the jurisdiction of the Environment and Land Court to deal with disputes relating to contracts under Section 13 of the Environment and Land Court Act ought to be understood within the context of the Court’s jurisdiction to deal with disputes connected to ‘use’ of land. Such contracts, ought to be incidental to the ‘use’ of land; they did not include mortgages, charges, collection of dues and rents which fell within the civil jurisdiction of the High Court.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5803/eng@2026-09-24 4

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18. The Court further held: “ While exclusive, the jurisdiction of the Environment and Land Court was limited to the areas specied under Article 162 of the Constitution, Section 13 of the Environment and Land Court Act and Section 150 of the Land Act; none of which concerned the determination of accounting questions. Consequently, the dispute did not fall within any of the areas envisioned by those provisions. On the other hand, the jurisdiction of the High Court over accounting matters was without doubt, as evidenced by article 165(3) of the Constitution.” 19. The Court of Appeal rearmed the distinction in Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others [2024] KECA 410 (KLR). In that case, the Court, relying on Cooperative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others (supra), held: “ We form this view taking to mind this Court’s decision in the afore-cited case of Cooperative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others (supra) where it was held that the ELC only has jurisdiction to deal with disputes connected to ‘use’ of land and contracts incidental to the ‘use’ of land, which do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court. Moreover, a charge is a disposition that has no direct contractual relation to ‘use’ (by a tenant or licensee) as in this case, of a chargor’s land. In view of the foregoing, we agree with learned counsel for the appellants that the learned Judge had no jurisdiction to entertain the respondents’ suit as pleaded.” 20. With those principles in mind, I now turn to the dispute as presented by the Plainti in his pleadings. 21. At paragraphs 8 to 11 of the Plaint, the Plainti avers that he purchased the suit properties in 1992, became the registered proprietor and took possession thereof. At paragraphs 12 to 14, he sets out the circumstances surrounding the loan facilities advanced by the 5th Defendant. 22. The gravamen of the Plainti’s complaint is found in paragraphs 15 to 25 of the Plaint. He avers that the titles held by the 1st and 2nd Defendants were obtained through fraud and forgery and that the Defendants have trespassed upon and interfered with his ownership, occupation, use and quiet possession of the suit properties. The reliefs sought include declarations of ownership, cancellation of the instruments conferring interests upon the 1st and 2nd Defendants, permanent injunctions and damages for trespass. There is no prayer for an account or determination of the amount due under the loan facility. 23. The question that arises, therefore, is whether, on the pleadings and the reliefs sought, the dispute is one relating to the exercise of the rights of a chargee or one concerning title to land. In Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & another [2018] KEELC 1599 (KLR), the Court considered a dispute arising from the sale and transfer of charged property to a purchaser whose title was challenged on grounds of fraud. The Court held: “ The agreed issues, which I elaborated earlier in this ruling, all concern the manner in which the bank conducted the sale, and question whether the title of the 2nd defendant, is a good title or ought to be revoked for having been acquired fraudulently. In fact, the plainti in her prayers, has explicitly asked this court to cancel the sale of 28 March 2002, which if allowed, may lead to the cancellation of the title of the 2nd defendant. The counterclaim that has been https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5803/eng@2026-09-24 5

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led, seeks vacant possession. These are land matters relating to title and use and occupation of land, for which it is the ELC which is the court with jurisdiction.” 24. The Court in Lydia Nyambura Mbugua further articulated the test as follows: “ What is important when determining whether the court has jurisdiction, is not so much the purpose of the transaction, but the subject matter or issue before court... If the litigant’s predominant issue will touch on the use of land, or occupation of land, or a matter that aects in one or another, title to land, then such issue would fall for determination before the ELC.” 25. In Aly Enterprises Limited v Absa Bank Kenya PLC & 5 others [2025] KEELC 7685 (KLR), the Court applied the predominant issue test where the sale by private treaty had been completed and the plainti sought invalidation of the sale, cancellation of the purchaser’s title, restoration of ownership and protection of possession. The Court stated: “ Applying that test, it is evident that the predominant issue in this case is not the commercial loan agreement but the integrity of the title to the property known as Nairobi/Block 95/38, the legality of the transfer to the 3rd Defendant, and the validity of the subsequent charge. The Plainti seeks orders that directly aect the Land Register and the proprietary interests in the suit property remedies that fall exclusively within this Court’s mandate under Section 13(2)(d) and (e) of the Environment and Land Court Act.” 26. The Court, in Ardhilink Limited v Equity Bank Limited & another [2025] KEELC 7704 (KLR), armed the distinction between disputes over accounts and disputes directly aecting the charged land. At paragraph 48, the Court stated: “ While the relationship between a chargor (borrower) and chargee is commercial in nature, disputes that directly touch on an interest in land, such as challenging the actual sale or the process leading to it, fall under the Environment and Land Court’s jurisdiction. Disputes purely over accounts or the amount of debt owed, without seeking remedies regarding the charged land itself, may be heard by the High Court.” 27. Applying that test, it is evident that the dispute before the Court is not for the determination of the commercial relationship between the Plainti and the 5th Defendant. The Plainti challenges the sale and subsequent transfer of the suit properties to the 1st and 2nd Defendants and the validity of the titles issued to them. The reliefs sought are directed at the cancellation of those interests and the determination of the Plainti’s claim to ownership and possession of the suit properties. The dispute therefore concerns title to land and falls within the jurisdiction of this Court under Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act. 28. I therefore nd that this Court has jurisdiction to determine the dispute. Whether the suit and the Application are barred by the doctrine of res judicata 29. Having found that this Court has jurisdiction to determine the matter, I now turn to the question whether the suit and the Application are res judicata. The 5th Defendant contends that the Plainti seeks to re-litigate matters that were conclusively determined in Milimani HCCC No. 238 of 2003 and Milimani ELC Case No. 352 of 2014. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5803/eng@2026-09-24 6

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30. The doctrine of res judicata is codied in Section 7 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya, which provides that: “ 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 nally decided by such court.” 31. The rationale underpinning the doctrine was succinctly explained by the Supreme Court in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR, where the Court observed: “ The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of Court's limited resources and timely termination of cases. It promotes stability of judgments and predictability, which are essential ingredients in maintaining respect for justice and the rule of law.” 32. I have looked at the materials placed before the Court in support of the plea of res judicata. They comprise decrees and a ruling. The pleadings and proceedings in the former suits have not been placed before the Court. In the circumstances, the material before the Court is insucient to undertake the comparison required to determine whether the matters raised in the present proceedings were directly and substantially in issue in the former suits and were nally determined therein. 33. The Court must examine the former proceedings against the proceedings before it in order to ascertain the matters that were in issue, the parties before the Court and the matters that were determined. A decree or ruling does not, in the absence of the pleadings and proceedings from which it arose, provide the Court with the material necessary to undertake that inquiry. 34. The Supreme Court in Kenya Commercial Bank Ltd & another v Muiri Cofee Estate Ltd & 3 others [2016] KESC 6 (KLR), stated: “ Whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case.” 35. A similar approach was adopted by the Court in Koit Developers Limited & 7 others v Orapa & another [2024] KEHC 4227 (KLR), where Mabeya J. stated: “ Though the defendant pleaded that there was a previous suit involving the same parties as those before court, concerning the same issues as the issues raised in the instant suit and seeking similar orders, I note that the pleadings in that suit were not before this Court. It is only by examining those pleadings against those led in the instant suit that the Court will be able to determine the four corners for res judicata to suce. Without having the benet of examining the pleadings in the previous suit, the Court is unable to make a determination on the merits of the preliminary objection.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5803/eng@2026-09-24 7

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36. Similarly, in Nyanyuki v Openda & another [2023] KEELC 20469 (KLR), the Court held: “ It needs to be understood that when a party is raising the plea of res judicata, what he is saying is that there was a previous similar suit… It goes without saying that one cannot determine whether the current suit is similar to the previous suit without rst looking at the pleadings and judgment/order(s) made in the previous suit. The only way a court can determine the question of res judicata is by looking at the evidence presented of the previous suit. Thus, where a defendant merely les a preliminary objection stating that there has been a previous suit, there is no way a court can make a decision, for there will be no evidence of the previous suit attached.” 37. In the circumstances, I am unable to determine the plea of res judicata on the material placed before the Court. The decrees and the ruling, without the pleadings and proceedings in the former suits, are insucient to establish the matters that were in issue and determined in those proceedings. The plea of res judicata therefore fails. SUBDIVISION - Whether the Plainti’s Application dated 16th June, 2026 meets the threshold for the grant of a temporary injunction 38. 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. 39. The circumstances in which that jurisdiction may be exercised are prescribed under Order 40 Rule 1 of the Civil Procedure Rules, which provides: 40. 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. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5803/eng@2026-09-24 8

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41. 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.” 42. 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 43. 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.” 44. 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 emphasized 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.” 45. The Court is not required at this stage to determine the merits of the dispute with nality. However, the applicant must demonstrate a right that is apparent on the face of the material placed before the Court. Where the right claimed is ownership of land, the law prescribes the manner in which that right is evidenced. 46. Section 26(1) of the Land Registration Act provides: “ The certicate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5803/eng@2026-09-24 9

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evidence that the person named as proprietor of the land is the absolute and indefeasible owner..." 47. In the present case, the Plainti asserts that he purchased the suit properties in 1992 and was registered as proprietor. He alleges that the titles were subsequently transferred to the 1st and 2nd Defendants through fraud and forgery. The Plainti has, however, not placed before the Court any certicate of title, ocial search or registration record evidencing that he was at any time registered as proprietor of the suit properties. 48. The Defendants, on the other hand, have exhibited registered titles. The 2nd Defendant has exhibited evidence showing that it was registered as proprietor of L.R. Nos. 12610/34 and 12610/35 following the auction of 25th April 2006. 49. Considering the provisions of Section 26 of the Land Registration Act which obliges the Court to take a certicate of title as prima facie evidence of proprietorship, I nd that the Applicant herein has not exhibited any document in his application to prove that he is the proprietor or was the proprietor of the properties known as L.R. Nos. 12610/34 and 12610/35. 50. The Court in Ndirangu v Njihia [2025] KEELC 4276 (KLR) considered an application for injunction where the applicant claimed ownership of land but produced no title. The Court held: “ The mere fact that the Applicant holds no title to the suit land is sucient to lead the court to hold that he has not established a prima facie case and cannot therefore benet from an order of injunction them not having demonstrated ownership of the property.” 51. Applying that reasoning to the present case, I nd that the Plainti has not established a prima facie case in respect of L.R. Nos. 12610/34 and 12610/35. 52. The conditions for the grant of a temporary injunction are sequential. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [supra], the Court stated: “ If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit ‘leap-frogging’ by the applicant to injunction directly without crossing the other hurdles in between.” 53. The Plainti having failed to establish a prima facie case, the Court need not consider irreparable injury or balance of convenience. 54. In the premises, the Court makes the following orders: a. The Plainti’s Notice of Motion dated 16th June 2026 is dismissed. b. The Plainti shall bear the costs of the Application payable to the 2nd and 5th Defendants. c. The suit is hereby transferred to the Environment and Land Court at Mavoko for hearing and determination. It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 24TH DAY OF SEPTEMBER, 2026. HON. J. N. KUYIONI JUDGE 24.09.2026 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5803/eng@2026-09-24 10

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RULING DELIVERED VIRTUALLY CONFERENCING PLATFORM THROUGH MICROSOFT TEAMS VIDEO In the presence of; Catherine Court Assistant. Mr. Mariaria for 2nd Defendants. Mr. Gatheru for the 1st Defendant. Mr.Wangondu for the 4th Defendant. Mr. Onyango for the 5th Defendant. No appearance for the Plainti/Applicant. No appearance for the Interested Parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5803/eng@2026-09-24 11

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