Lilian Nairesia Kaipoi v Michael Seme & 5 Others

e) That the costs of this Application be in the course. f) That the Honourable Court be pleased to make such further orders as it may deem fit in the circumstances. 2. The Application is premised on the following grounds and was supported by the sworn affidavit of Lilian Nairesia Kaipoi dated 23.06.2026; a) That the Applicant is the rightful Allottee and holds a valid Letter of Allotment issued by the County Government of Narok dated 03.08.2022 in respect of Plot No. 2 Block 5, Transmara South, Lolgorian Trading Centre measuring 1.3664 Ha. b) That, on or about 22.06.2026 the Defendants gained ingress to the suit property and begun to demolish the Plaintiff’s fence erected on the suit property. c) That the Respondents equally started erecting beacons on the suit property to the detriment of the Plaintiff and have sworn to continue demolishing, construct on the suit premises and sell portions of the suit property to other third parties. d) That the Plaintiff stands to suffer irreparable harm and loss if the demolition is not immediately halted. The destruction of the fence will leave the suit property exposed and vulnerable to further encroachment and render subsequent court orders nugatory. e) That the suit property constitutes the Plaintiff’s family home where she currently resides with her family and she has no alternative place to abode. f) That the Plaintiff has a prima facie case against the Respondents and it would be prudent and for the interest of justice that the suit property be preserved so that the matter may be determined in a just way. Page 2|8

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g) That under the foregoing circumstances the Applicant stands to suffer irreparable harm which cannot be compensated for by way of damages. 3. The Respondents herein responded to the Application vide a Replying affidavit dated 14.07.2026, sworn by Leornard Seme with authority from the other Respondents herein, where he depones as follows; (i) That the Application is misconceived, incompetent, an abuse of court process and legally untenable since it is defective in both form and substance and fails to meet the threshold of the issuance of the temporary injunction and the Applicant has failed to establish a prima facie case with probability of success. The main suit is built on a non-existent plot being Plot No. 2 Block 5, Transmara South, Lolgorian Trading Centre. (ii) The Applicant will not suffer irreparable injury that cannot be compensated by an award of damages if this application is denied. (iii) The balance of convenience heavily tilts in favour of the 2nd Respondent as the legal owner of the property he is in occupation. (iv) The alleged demolition by the Applicant is total falsehoods and the report made to the police could have constituted a crime christened ‘Malicious damage of property under the Penal Code’ and the police could have arrested the perpetrators. (v) It is in the interest of justice that this Application be dismissed with costs to allow the main suit to be heard and determined on merit. 4. The Court directed the parties to make submissions vide written submissions summarized as hereunder; Applicant’s Submissions 5. The Applicant herein filed written submissions dated 08.09.2026 framing 4 issues for determination as follows; Page 3|8

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(i) In the uncontroverted facts, the Applicant referring to the Replying Affidavit submits that a party making serious allegations in an affidavit must bring forth evidence to support them relying on the Ruling in Mbalanya v Waema (Environment and Land Case 21 of 2016) KEELC 3356 (KLR). (ii) The Applicant’s submissions submit that the applicable legal test for the grant of a temporary injunction is as established in the case of Giella v Cassman Brown. Co. Ltd [1973] EA 358, American Cyanamid Co. v Ethicon Ltd [1975] AC 396 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR. (iii) On issue No. 1, whether the Applicant has established a prima facie case with a probability of success, the Applicant submits that she has established an overwhelming prima facie case since she holds a valid Letter of Allotment dated 03.08.2022 bearing Serial No. CP-AAAAXGY and has been in occupation of the suit premises for over thirty (30) years. The Applicant relied on the holding of the court in Rukaya Ali Mohamed v David Gikonyo Nambacha & Another (Kisumu HCCS No. 9 of 2009), Joseph Tobiko Kelempu v Cooperative Management Committee of Emparnat Farmers Dairy Cooperative Society Limited and Nguruman Limited v Jan Bonde Nielsen [2014] eKLR. (iv) On issue No. 2, whether the Applicant will suffer irreparable harm if the injunction is not granted, the Applicant submits that she will suffer irreparable harm if the injunction is not granted because the suit property is her family home, there is a threat of sale to third parties and the land is unique. The Applicant relied on the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai (2018) eKLR. (v) On issue No. 3, whether the balance of convenience favours the grant or refusal of the injunction, the Applicant submits that the balance of convenience tilts overwhelmingly in her favour relying on Articles 40 and Page 4|8

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43 of the Constitution of Kenya (2010) and the Supreme Court decision in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 Others [2021] eKLR. (vi) On the strengths of the submissions above, the Applicant submits that she has satisfied all the three limbs of the conditions for grant of temporary injunction. Respondents’ Submissions 6. The Respondents did not file written submissions. Issues for Determination 7. The issues for determination arising from the application and submissions the court frames the following as issues for determination a. Whether the application has met the threshold for grant of an interlocutory injunction so as to make the application merited? b. What reliefs ought to issue? c. Who bears the costs. Analysis and Determination? 8. It is the Applicant’s position that she is the bonafide allottee of the suit property known as Plot No. 2 Block 5, Transmara South Lolgorian Trading Centre, which she has occupied for about 30 years developing the same and ultimately being allocated the same vide the letter of allotment dated 3rd August 2022 which she exhibited. In response the Respondent indicate that as described the suit property does not exists, and they refer to a letter from the County Department of Physical and Urban Planning which letter was not exhibited though it was referred to in the Replying affidavit, the Respondents have annexed copies of allotment letters in respect of plots Page 5|8

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Nos. 259, 828, 831 and 1098 all within Lolgorian town claiming that pursuant to the said letters of allotment they are the bonafide allottees. 9. The court notes that the Applicant and the Respondent have exhibited letters of allotment, and at the interlocutory stage the court is not able to determine which of the allotment letters is authentic and whether they refer tot the same plot, in question. The said issues can only be resolved by way of evidence at trial and not at the interlocutory stage. 10. The principles of Grant of an injunction were stated in Giella Vs. Cassman where they were stated to be, “Firstly, an Applicant must show a primafacie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience 11. Now applying the said principles herein, has the Applicant established a primafacie with probability of success; noting the definition of a primafacie as stated in Mrao Limited Vs. First American Bank Ltd. 12. The court has noted that both parties have exhibited letter of allotment in respect of plots with different numbers; and/that the issue of the authentic allotment letter as well as to which plot it relates can only be resolved at trial, the Applicant has possession of the suit land and contends that the Respondents have attempted to demolish her perimeter wall and has exhibited photographs of an earth mover and an OB report to Lolgorian police station. 13. None of the parties is the registered proprietor of the suit parcel, but the Applicant having exhibited an allocation letter and being in possession of the suit property has demonstrated that she has a primafacie case; as against the Respondents. Page 6|8

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14. Turning to the other principles in Giella Vs. Cassman Brown, the Applicant has pleaded to have being in possession of the suit property for more than 30 years and has demonstrated irreparable damage would befall her if the orders are not granted, as demolition and eviction from the suit property cannot be compensated by an award of damages. 15. Lastly, as the Applicant is in possession of the suit property the balance of convenience tilts in her favour as against the Respondents who are not in possession of the suit property. 16. The Applicant has thus demonstrated and met the threshold for grant of an interlocutory injunction, and the court finds that the Application is thus merited in answer to issue No. 1. 17. On what reliefs ought to issue. Having found that the Application to be merited, the court allows it in terms of prayer 3 and 4, together with costs. 18. For avoidance of doubt, a. a temporary injunction hereby issues pending hearing and determination of this suit against the Defendants, by themselves, servants and/or agents and/or any other persons acting under their instructions or authority from selling, offering for sale, constructing on, further demolishing, alienating and/or interfering in any other way whatsoever with Plot NO. 2 Block 5 Transmara South, Lolgorian Trading Centre. b. The officer commanding station (OCS) Lolgorian police station is directed to enforce the order by ensuring that the Plaintiff’s fence is not interfered with. Page 7|8

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c. Costs of the application are awarded to the Applicant. Dated at Kilgoris this 1st day of October, 2026 Hon. M.N Mwanyale Judge In the presence of CA – Sylvia/Victor Ms. Wangui for Plaintiff/Applicant Mr. Kiprotich for Defendant/Respondent Page 8|8

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