Mutuku v Muoki & 2 others

Reference Number 209/21269 (original Number 209/14069/2), measuring O.4170 Ha, and located in Eastern Bypass, adjacent to Eka Hotel, and the Officer Commanding Akila Police Station to ensure compliance. c) THAT pending the hearing and determination of this suit, the Honourable Court be pleased to issue an order of injunction restraining the Defendants/Respondents whether by themselves, agents, servants, cronies or any person claiming through them from trespassing, accessing, entering, threatening to enter and/or in any manner whatsoever interfering with the Applicant’s occupation, quiet possession and use of all those parcels of land known as Land Reference Number 209/21269 (original Number 209/14069/2), measuring O.4170 Ha, and located in Eastern Bypass, adjacent to Eka Hotel, and the Officer Commanding Akila Police Station to ensure compliance. d) Costs of the application. 2. The application was premised on grounds that the Applicant was the registered owner of the suit property and has in in possession of it since acquisition. That the Defendants have unlawfully attempted to enter the suit property claiming to be the owners and threatening eviction and have further threatened to destroy the Applicant’s structures on the same which actions have caused and made it difficult for the Plaintiff to run his activities peacefully ELCL E551 OF 2025 R 2

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3. That the actions of the Defendants amount to trespass and unlawful acquisition of land which will be prejudicial to the Respondent hence this application 4. The 3rd Defendant opposed the application via the replying affidavit sworn by Eng Isaac Gathungu Wanjohi. He deponded that him together with another 3rd party purchased the property which was then registered as LR 209/11999, Grant no I.R 61323 and transferred it in the 3rd Defendant’s name .That the property was then resurveyed and the land issued with title no LR 209/140868 .Following the change in title no, they and they were to surrender grant IR.6123 for a new grant but instead found that the Applicant herein had been registered as the owner under the new deed plan which culminated in two new parcels of which the suit property herein forms part of 5. That the attempts to have the 3rd Respondent disposed from the property have been going on for several years causing them to seek clarity from the National land commission which issued a letter indicating that any other conflicting titles to the one registered in the 3rd Respondent’s name were illegally obtained hence null and void 6. The application was canvassed by way of written submissions with the Applicant filing submissions dated whereas the 3 rd Respondent filed submissions dated 15th June 2026 Applicant’s submissions ELCL E551 OF 2025 R 3

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7. The Applicant relied on the provision of Order 40 Rule 1 of the civil procedure rules and the case of Giella vs Cassman Brown & Company Limited (19730 E A 358), On the issue of prima facie case counsel submitted that the Plaintiff/Applicant has placed before this Honourable Court sufficient evidence demonstrating that he is the duly registered lessee and lawful proprietor of the suit property and placed reliance in the case of Kinyua v Absa Bank Kenya PLC [2026] KEHC 7419 (KLR). That the issues raised by the 3 rd Respondent could only be adjudicated on full trial and not on an interlocutory application hence need to preserve the suit property. On the issue of irreparable harm, the Applicant submitted that the Respondents’ continued acts of trespass and unlawful interference with the suit property constitute a direct and continuing threat to the Applicant’s proprietary rights, occupation and quiet possession. That the threatened loss to the Applicant is not merely financial in nature and cannot be adequately remedied through an award of damages On the issue of balance of convenience, the Applicant submitted that the balance tilted in granting the orders having established that he is in possession of the property and registered owner whereas the 3rd Respondent had not demonstrated any right to be infringed. 3rd Respondent’s submissions ELCL E551 OF 2025 R 4

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8. Counsel for the 3rd Respondent conditions as in Giella vs submitted Cassman on whether the Brown & Company Limited(supra) had been met. On the issue of prima facie case, it was submitted that the Applicant had not proved a prima facie case as the 3 rd Respondent was the registered owner with a title that had not been challenged by the Applicant and the burden of proving the same was not legally obtained was on the Plaintiff. That the Plaintiff’s title had been acquired illegally and the mere fact that the Applicant was using the title to claim ownership was not enough as he had to demonstrate how the title was acquired relying in the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR He submitted that the other two limbs of irreparable harm and balance of convenience had also not been met. Analysis and determination 9. Having considered the pleadings, the replying Affidavit, and the submission of the parties, the Court finds that the only substantive issue for determination is whether the Applicant is entitled to the injunctive orders 10. The conditions governing the grant of an interlocutory injunction in this jurisdiction are firmly anchored in the celebrated ELCL E551 OF 2025 R 5

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East African decision of Giella vs Cassman Brown & Co Ltd 1973 EA 358 where the Court pronounced that an Applicant must first establish a prima facie case with a probability of success, secondly demonstrate that he stands to suffer irreparable injury that would not adequately be compensated by an award of damages, and thirdly, that if the Court is in doubt on the foregoing, the application ought to be determined on the balance of convenience. These three conditions have since been consistently applied by our Courts as the governing standard for injunctive relief. 11. The threshold for establishing a prima facie case was authoritatively settled by the Court of Appeal in Mrao Ltd v First American Bank of Kenya & 2 Others (2003) KLR 125 where the Court held that a prima facie case is one in which, on the material presented before the Court, a tribunal properly directing its mind 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. This Court is in full agreement with that formulation and adopts it as the applicable standard 12. In the present case, the Applicant sees injunctive orders on the basis of him being the registered owner of the suit property evidenced by a title to attached to its supporting affidavit .The 3 rd Respondent challenges the said title indicating it was obtained fraudulently producing a different document being Grant Number I.R. 61323 that it claims originated from the original title L.R ELCL E551 OF 2025 R 6

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Number 209/11999 .It was the 3rd Respondents case that the said title was converted into L.R 209/14068 after a survey which parcel was later fraudulently subdivided in two parcels L.R 209/21268 IR 156749 and L.R 209/21269 IR 156750 the latter being what the Applicant is claiming ownership . 13. This is a case where there are two conflicting titles to the same land. At this interlocutory stage, the Court is not required to determine the ultimate validity of the competing titles. The Court must apply the principles in the Giella case supra to determine; i. Whether the Applicants have established a prima facie case with a probability of success? ii. Whether the Applicants will suffer irreparable injury if the injunction is not granted? iii. 14. Where does the balance of convenience lie? As seen earlier, the court needs only to determine that, on the surface, the party seeking an injunction has a right that has been or is at risk of being violated. The Applicants need not prove ownership; it suffices to demonstrate a genuine and honest dispute over the existence of the claimed right 15. This case presents a classic double-title scenario in which two parties claim registered ownership of the same property, the suit property herein resulting in a stalemate over physical possession. In land disputes involving competing titles, a Status Quo Order is a common interim measure that freezes the status quo and preserves the property in its current state until the court determines the true ELCL E551 OF 2025 R 7

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owner at trial. Land is unique, and if the court does not issue an order, one party is likely to use it to the detriment of the other; therefore, a status quo order ensures that, if either party eventually wins, they receive the land in the same condition it was in when the suit began. The court’s practice directions Gazette Notice No. 3461/2025 Practice Direction No. 23(l) gives the court the leeway and discretion to make an order for status quo to be maintained until the determination of the case. 16. Both the Plaintiff and 3rd Respondent have alleged being in occupation of the suit property and apprehensive of being dispossessed if the injunctive orders are not issued in the case of the Applicant and if they are issued in the case of the 3 rd Respondent. Both the Plaintiff and 3rd Respondent have alleged the use of either armed goons and police intimidation to dispossess the other of the suit property, and therefore, without a court order defining the parties' conduct, there is a high risk of physical confrontation on the property 17. The primary difficulty in this case is determining the current status quo. The Plaintiff claims he has been in occupation, which was only recently disturbed; the 3rd Respondent claims the status quo is their current occupation having constructed on the same. If the court simply orders "the status quo be maintained" without clarifying who is currently in possession, it may inadvertently encourage the party currently on the land to further entrench ELCL E551 OF 2025 R 8

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themselves, or invite the other party to try and "regain" possession before the order is served. Final disposition 18. I find the best approach, given that there are two competing titles where both parties accuse each other of fraud, and further given that both parties claim to be in possession of the suit land, the most equitable path is to grant a status quo Order with specific restrictive conditions as herein under: i. THAT an Order of Status Quo is hereby issued restraining Plaintiff and the 3rd Respondent from selling, transferring, mortgaging, or leasing the land to any third party. ii. Neither party shall change the character of the land. iii. The costs of the application shall be in the cause. iv. Parties to comply with the provisions of Order 11 of the Civil Procedure Rules for the hearing of the main suit herein. It is so ordered. DATED, SIGNED and DELIVERED via e-mail at NAIROBI on this 16th day of July 2026. ELCL E551 OF 2025 R 9

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MOHAMMED N. KULLOW JUDGE ELCL E551 OF 2025 R 10

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