Koichi Realtors Limited & 2 others v Takawa Earth Resources Limited & 3 others

(iii) (iv) That pending the hearing of the main suit herein, this honourable court be pleased to issue a temporary injunction restraining the Defendants/Respondents by themselves, their agent, servant, employees or any person claiming under them from trespassing upon, entering, remaining on or in any way interfering with the Plaintiffs’ quiet possession and enjoyment of Land Parcel Number Kwale/Mbuguni Phase II/227, Kwale/Mbuguni Phase II/210, Kwale/Mbuguni Phase II/741, Kwale/ Mbuguni Phase II/740, Kwale/Mbuguni Phase II/2, Kwale/ Mbuguni Phase II/3, Kwale/ Mbuguni Phase II/5. Kwale/ Mbuguni Phase II/6, Kwale/ Mbuguni Phase II/7, Kwale/Mbuguni Phase II/8, Kwale/ Mbuguni Phase II/10, Kwale/ Mbuguni Phase II/727, Kwale/ Mbuguni Phase II/728, Kwale/ Mbuguni Phase II/14, Kwale/Mbuguni Phase II/16, Kwale/ Mbuguni Phase II/17, Kwale/Mbuguni Phase II/18, Kwale/Mbuguni Phase II/19, Kwale/ Mbuguni Phase II/20, Kwale/ Mbuguni Phase II/38, Kwale/ Mbuguni Phase II/39, Kwale/ Mbuguni Phase II/44, Kwale/Mbuguni Phase II/46, Kwale/ Mbuguni Phase II/86, Kwale/ Mbuguni Phase II/87, Kwale/ Mbuguni Phase II/897, Kwale/ Tsunza/1464, Kwale/Tseunza/119, Kwale/ Tsunza/118, Kwale/Tsunza/110, Kwale/ Tsunza/121 and Kwale/Tsunza/1459 (suit properties) and from excavating, removing, or harvesting sand or any other material from the river adjourning the said parcels of land. That this honourable court be pleased to issue a permanent injunction restraining the Defendants/Respondents by themselves, their agent, servant, employees or any person claiming under them from trespassing upon, entering, remaining on or in any way interfering with the Plaintiffs’ quiet possession and enjoyment of Land Parcel Number Kwale/Mbuguni Phase II/227, Kwale/Mbuguni Phase II/210, Kwale/Mbuguni Phase II/741, Kwale/ Mbuguni Phase II/740, Kwale/Mbuguni Phase II/2, Kwale/ Mbuguni Phase II/3, Kwale/ Mbuguni Phase II/5. Kwale/ Mbuguni Phase II/6, Kwale/ Mbuguni Phase II/7, Kwale/Mbuguni Phase II/8, Kwale/ Mbuguni Phase II/10, Kwale/ Mbuguni Phase II/727, Kwale/ Mbuguni Phase II/728, Kwale/ Mbuguni Phase II/14, Kwale/Mbuguni Phase II/16, Kwale/ Mbuguni Phase II/17, Kwale/Mbuguni Phase II/18, Kwale/Mbuguni Phase II/19, 2|Page ELCLC E025 OF 2026

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(v) (vi) Kwale/ Mbuguni Phase II/20, Kwale/ Mbuguni Phase II/38, Kwale/ Mbuguni Phase II/39, Kwale/ Mbuguni Phase II/44, Kwale/Mbuguni Phase II/46, Kwale/ Mbuguni Phase II/86, Kwale/ Mbuguni Phase II/87, Kwale/ Mbuguni Phase II/897, Kwale/ Tsunza/1464, Kwale/Tseunza/119, Kwale/ Tsunza/118, Kwale/Tsunza/110, Kwale/ Tsunza/121 and Kwale/Tsunza/1459 (suit properties) and from excavating, removing, or harvesting sand or any other material from the river adjourning the said parcels of land. That the Plaintiffs honourable court be pleased to issue an order directing the Officer Commanding Station Kwale and Officer Commanding Station Tsunza to evict the Defendants/Respondents themselves, their agent, servant, employees or any person claiming under them from Land Parcel Number Kwale/Mbuguni Phase II/227, Kwale/Mbuguni Phase II/210, Kwale/Mbuguni Phase II/741, Kwale/ Mbuguni Phase II/740, Kwale/Mbuguni Phase II/2, Kwale/ Mbuguni Phase II/3, Kwale/ Mbuguni Phase II/5. Kwale/ Mbuguni Phase II/6, Kwale/ Mbuguni Phase II/7, Kwale/Mbuguni Phase II/8, Kwale/ Mbuguni Phase II/10, Kwale/ Mbuguni Phase II/727, Kwale/ Mbuguni Phase II/728, Kwale/ Mbuguni Phase II/14, Kwale/Mbuguni Phase II/16, Kwale/ Mbuguni Phase II/17, Kwale/Mbuguni Phase II/18, Kwale/Mbuguni Phase II/19, Kwale/ Mbuguni Phase II/20, Kwale/ Mbuguni Phase II/38, Kwale/ Mbuguni Phase II/39, Kwale/ Mbuguni Phase II/44, Kwale/Mbuguni Phase II/46, Kwale/ Mbuguni Phase II/86, Kwale/ Mbuguni Phase II/87, Kwale/ Mbuguni Phase II/897, Kwale/ Tsunza/1464, Kwale/Tseunza/119, Kwale/ Tsunza/118, Kwale/Tsunza/110, Kwale/ Tsunza/121 and Kwale/Tsunza/1459 (suit properties) That costs of the application be provided for. 4. The application was premised upon the grounds set out therein and supported by the affidavit sworn by JOSEPH MAINA MBUGUA sworn on 24 th April 2026. The deponent averred that he was a director of the 1st Plaintiff duly authorized to swear the affidavit. He deponed that the Plaintiffs were the absolute owners of the suit properties which are located along Mteza River. That about August 2025, the Defendants unlawfully entered upon the suit 3|Page ELCLC E025 OF 2026

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properties and commenced illegal excavation of sand along Mteza River and have continued to access the river through the Plaintiffs’ properties. Since the Defendants’ entry, they had remained in occupation and undertaken acts of trespass including erosion of the river bank, destruction of vegetation on the Plaintiffs’ properties, destruction of the Plaintiffs’ perimeter fence, and presence of heavy machinery on the Plaintiffs’ properties. He averred that the continued act of trespass continued to deprive the Plaintiffs from enjoying their properties. 5. On 29th April 2026, the Court certified the application as urgent and in order to preserve the suit properties issued interim orders pending inter parties hearing of the application. Grounds of Opposition 6. The 1st, 3rd and 4th Defendants/Respondent opposed the application vide grounds of opposition dated the 8th May 2026. In the Grounds of Opposition, it was averred that; i. That this Court lacks jurisdiction to hear and determine the suit as it fell under the domain of National Environment Tribunal (NET). ii. That the 1st Defendant is licensed to harvest sand in River Mteza and its riparian area. iii. The Plaintiffs had not demonstrated that the Defendants had encroached onto their properties. iv. That the parcels of land listed in the pleadings were under challenge as having been acquired illegally in Petition E002 of 2026 and that the two suit ought to be consolidated. v. That the ex parte orders issued on 29th April 2026 had affected their business and their employees. They prayed for the aforementioned to be stayed, set aside and or varied. Defendants’ application. 7. The 1st, 3rd and 4th Defendants (hereinafter referred to as the “Defendants”) entered appearance and filed and an application dated 8 ths May 2026 brought 4|Page ELCLC E025 OF 2026

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under Sections 1A,1B,3, 3A and 63(e) of the Civil Procedure Act, Order 12 Rules 6 and 7 of the Civil Procedure Rules and all other enabling provisions of the Law. 8. The application seeks stay of execution of the ex parte orders made on 29th April 2026 and that the said ex parte orders be set aside, varied and or discharged. 9. The application was premised upon the grounds set out therein and supported by the affidavit sworn by Mwanza Ruwa on 8 th May 2026. The deponent averred that; a) The 1st Defendant is licensed by National Environment Management Authority (NEMA) and Water Resources Management Authority (WARMA) to harvest sand on the riparian land on River Mteza. b) They have invested substantial sums of money in machinery and employees in the harvest of sand and supply to the contractors. c) Their operations were put to a stoppage pursuant to the ex parte orders issued on 29th April 2026 and that they were staring at immense loss and damage. d) The river is a public land and as such the riparian land cannot be part of the Plaintiffs’ properties. e) The Plaintiffs’ have not demonstrated any form of trespass or encroachment on the suit property. f) The riparian land was beaconed by WARMA and the 1 st Defendant thereto licensed to carry out mining activities. g) That if the court found any elements of trespass, the 1 st Defendant was ready to meet any condition to enable it resume operations. h) That the 1st Defendant had strictly complied with conditions of their license and had not trespassed onto the suit properties. i) That the Plaintiffs were condemned to pay costs in Misc. Appl. No. E015 of 2025, and that they had failed to pay and the suit should be stayed until the costs are met. j) That the acquisition of the suit properties was under challenge in Petition No. E002 of 2026 and the suits should thus be consolidated. k) That the Court lacks jurisdiction to determine the matter as the same is under the jurisdiction of NET. 5|Page ELCLC E025 OF 2026

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10.The parties thereafter filed submissions with respect to the aforementioned applications. Submissions by parties Plaintiffs’ submissions 11. The Plaintiffs filed their submissions to their Application and the Defendants’ Application both dated 27th July 2026. 12.On the issue of jurisdiction, the Plaintiffs submitted that their case was based on the illegal entry of the 1st Defendant into their properties, without their permission, and not one about the licence. That the Court has jurisdiction to hear and determine matters on enforcement of ones’ rights to enjoy quiet and peaceful occupation of land. 13.With respect to the merits of their application, the Plaintiffs submitted that the factual averments on their application were unopposed. That the Defendants’ trespass had infringed upon their proprietary rights and was likely to waste away their properties. It was submitted that they would suffer the greatest harm if the orders sought were not granted as the properties presented an astronomical investment for the Plaintiffs. 14.With respect to the Defendants’ application, the Plaintiffs submitted that the Court lacked jurisdiction to hear and determine the 1 st Defendant’s Application particularly on matters touching on NEMA and WARMA. The Plaintiffs further submitted that the Defendants had not met the requirements for setting aside of the orders as provided for under Order 51 Rule 15. They prayed that the Defendants’ application be dismissed with costs. Defendants’ submissions 15.The Defendants filed their submissions dated 8th July 2026. They submitted on six issues. 6|Page ELCLC E025 OF 2026

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16.On the first issue, it was their submissions that the Court lacked jurisdiction to entertain the suit arguing that the bone of contention was whether the 1 st Defendant’s activities fell within the parameters of the subsisting NEMA license, which question was subject to the jurisdiction of NET in the first instance. 17.On the second issue, it was submitted that the suit was sub judice in light of the ongoing suit challenging the Plaintiffs’ titles to the suit properties. In the alternative, they sought for the suit to be consolidated. 18.On the third issue, the Defendants submitted that this suit ought to be stayed for non payment of costs emanating from the ruling delivered in Miscellaneous Application No. E015 of 2025. That the joinder of the 3 rd Plaintiff in the suit was misconceived and vexatious as his claimed properties could not be said to adjoin the riparian land being approximately fifteen kilometers from the river. 19.Fourthly, it was submitted that the Plaintiffs had not met the threshold for injunctive relief and that the ex parte orders ought to be discharged. It was their submissions that the Plaintiffs had not demonstrated that the Defendants’ activities had exceeded the licensed riparian land. That any loss the Plaintiffs may prove was capable of quantification and compensation by damages. That the balance of convenience favoured the Defendants as their operations had stalled causing them extensive loss. That the Plaintiffs’ non-disclosure of the pending court order and proceedings in Miscellaneous Application No. E015 of 2025 and Petition No. E002 of 2026 respectively was sufficient ground to discharge the exparte orders. 20.On the fifth issue, it was submitted that the riparian land in question was public land and that it attracted no protection under Article 40(6) of the Constitution of Kenya. Lastly, the Defendants submitted that the withdrawal of the suit against the 2nd, 3rd and 4th Defendant undermined the suit. They urged that the Plaintiffs’ application be dismissed, and their application be allowed and there be a stay of proceedings pending satisfaction of costs in Miscellaneous Application No. E015 of 2025 and determination in Petition No. E002 of 2026 and in the alternative the suit be struck out for lack of jurisdiction. 7|Page ELCLC E025 OF 2026

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Issues for Determination 21.I have carefully read and considered the Plaintiffs’ Application dated 24 th April 2026, the Defendants’ Application and Grounds of Opposition both dated 8 th May 2026, the submissions on record, and the relevant legal provisions. 22.The Court discerns the following issues for determination: i) Whether this Court has jurisdiction to determine this suit. ii) Whether the suit offends the doctrine of sub judice. iii) Whether the Plaintiffs’ application dated 24th April 2026 is merited. iv) Whether the Defendants’ application dated 8th May 2026 is merited. Analysis and determination Whether this Court has jurisdiction to determine this suit. 23.The Defendants’ have challenged the jurisdiction of this Court wherein it averred that the suit ought to be heard and determined by the National Environment Tribunal (NET) pursuant to section 129 of the Environmental Management and Co-ordination Act. 24.A challenge on the jurisdiction of the Court raises a preliminary point of law which must be determined at the earliest opportunity. Where the Court finds that it lacks jurisdiction, it must down its tools. The issue of jurisdiction must therefore be resolved before the Court considers the other issues arising in the suit. This was stated in the classic case of The Owners of the Motor Vessel “Lillian S” –vs- Caltex Oil (Kenya) Ltd (1989) KLR 1. where Nyarangi J.A. held as follows: “I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. 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 8|Page ELCLC E025 OF 2026

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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.” 25.The Supreme Court in the case of Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) rendered as follows: “….. a Court can only exercise jurisdiction that has been donated to it by either the constitution or legislation or both. Therefore, it cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 26.The jurisdiction of this Court is derived from Article 162(2) of the Constitution of Kenya and Section 13 of Environment and Land Court Act No.19 of 2011. Article 162(2)(b) establishes this Court with jurisdiction to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. Section 13 of the Environment and Land Court Act further confers upon the Court original and appellate jurisdiction to hear and determine disputes relating to the environment and land. 27.The issue arising for determination at this stage is whether, having regard to the substance of the pleadings and the reliefs sought, the dispute falls within the jurisdiction of the National Environment Tribunal (“NET”), thereby requiring the Plaintiffs first to exhaust the procedure prescribed under the Environmental Management and Co-ordination Act (“EMCA”). 28.Section 125 of EMCA establishes the National Environment Tribunal. The Tribunal’s jurisdiction is principally provided for under section 129 of EMCA which provides as follows: Appeals to the Tribunal (1)Any person who is aggrieved by—(a)the grant of a licence or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit, under this Act or its regulations;(b)the imposition of any condition, limitation or restriction on the persons licence under this Act or its regulations;(c)the revocation, suspension or variation 9|Page ELCLC E025 OF 2026

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of the person's licence under this Act or its regulations;(d)the amount of money required to paid as a fee under this Act or its regulations; (e)the imposition against the person of an environmental restoration order or environmental improvement order by the Authority under this Act or its Regulations, may within sixty days after the occurrence of the event against which the person is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal. 29. Section 129(2) further provides that, unless otherwise expressly provided under EMCA, decisions made by the Director-General, NEMA, its committees or agents pursuant to powers conferred by the Act may be appealed to NET. 30.The import of these provisions is that the NET exercises appellate jurisdiction over decisions made under EMCA, including decisions concerning the grant, refusal, transfer, suspension, variation or revocation of licenses and permits, conditions imposed upon licenses, prescribed fees, and environmental restoration or improvement orders. NET’s jurisdiction is properly invoked where there is an identifiable decision, order, license or permit falling within section 129 of EMCA which an aggrieved party seeks to challenge. 31.The Supreme Court considered the relationship between the jurisdiction of this Court and the statutory environmental dispute-resolution mechanisms in Nicholus v Attorney General & 13 others [2023] KESC 113 (KLR).The Court recognized that the Environment and Land Court has original jurisdiction over disputes relating to land and the environment, including related constitutional claims, unless that jurisdiction has lawfully been assigned in the first instance to a specialized statutory body. The Supreme Court nevertheless affirmed that statutory mechanisms should ordinarily be exhausted where they are applicable and capable of resolving the dispute. 32.The effect of that decision is that the Court must distinguish between, on the one hand, an appeal against a decision of NEMA falling within section 129 and, on the other hand, an independent claim concerning land rights, trespass or relief which NET is not empowered to determine. 10 | P a g e ELCLC E025 OF 2026

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33.Questions concerning ownership, occupation, possession, trespass, vacant possession, eviction and interference with private land fall within the original jurisdiction of this Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. NET does not exercise original jurisdiction to determine title to land, order eviction from private property, or award damages for trespass merely because the alleged trespass was undertaken in the course of an environmentally regulated activity. 34.In determining whether a dispute falls within the jurisdiction of NET, the Court must consider the pleadings and the nature of the reliefs sought. The relevant inquiry is whether the Plaintiffs are, in substance, inviting the Court to exercise jurisdiction reserved in the first instance for the Tribunal, such as setting aside, suspending or varying a decision or licence issued under EMCA. 35.In the present suit, the Plaintiffs seek, inter alia: i) A declaration that they are the lawful proprietors of the suit properties; ii) A permanent injunction restraining the Defendants or their agents from entering upon, remaining upon, excavating, or in any way interfering with the suit properties; iii) An order for vacant possession and eviction of the Defendants from the suit properties; iv) General damages for trespass; v) Special damages in the sum of Kshs. 900,000; and vi) Interest and costs of the suit. 36.The Plaintiffs’ case, as pleaded, is that the Defendants entered the suit properties without their consent or other lawful authority and used the properties as an access route to the adjoining river, where they allegedly undertook excavation and sand-harvesting activities. The Plaintiffs seek protection of their proprietary interests and redress for the alleged trespass. 37.The jurisdictional objection is founded on the Defendants’ assertion that they hold a licence authorizing them to excavate along the river’s riparian area. The mere assertion or existence of such a licence does not, without more, transform 11 | P a g e ELCLC E025 OF 2026

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a claim for trespass, vacant possession and protection of title into an appeal under section 129 of EMCA. 38. From the pleadings and material presently before the Court, the Plaintiffs do not seek the cancellation, suspension, variation or setting aside of a decision made by NEMA under EMCA. Neither have they sought an order invalidating the Defendants’ alleged licence or varying any condition imposed upon it. The gravamen of the suit, as currently framed, is whether the Defendants unlawfully entered and interfered with the Plaintiffs’ parcels and whether the Plaintiffs are entitled to proprietary relief and damages for trespass. 39.No specific decision by NEMA falling within section 129 of EMCA has been identified as the subject of the Plaintiffs’ challenge. The Defendants’ reliance upon a licence as a defence to the claim does not, without more, convert the suit into an appeal against the grant of that licence. Whether the licence exists, its statutory foundation, the geographical area to which it applies, and whether it confers any lawful right of access through the Plaintiffs’ properties are matters that require evidential determination. They do not, on the pleadings as presently framed, establish that the Tribunal has exclusive jurisdiction over the suit. 40.The Court therefore finds that it has jurisdiction to determine the Plaintiffs’ claims concerning ownership, alleged trespass, vacant possession, eviction and damages. 41. Notwithstanding the foregoing, the Court notes that the Plaintiffs’ prayer in the application seeking to restrain excavation or sand harvesting from the adjoining river amounts, in substance, to an invitation to suspend, invalidate or vary a licence or decision made by NEMA under EMCA, such a challenge falls within section 129 of EMCA and ought to be first pursued before NET. The Plaintiffs cannot circumvent that statutory procedure by framing a challenge to an environmental licence as an injunction against the licensed activity. 12 | P a g e ELCLC E025 OF 2026

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42. Accordingly, the Defendants’ jurisdictional objection, insofar as it seeks the dismissal or striking out of the entire suit, is without merit and is hereby rejected. The Court retains jurisdiction over the Plaintiffs’ proprietary and trespass claims. Any direct challenge to the grant, validity, conditions or operation of a licence issued by NEMA under EMCA must, however, be pursued through the procedure prescribed by sections 129 and 130 of EMCA. Whether the suit offends the doctrine of sub judice. 43. The Defendants submitted that the suit herein was sub judice in light of the pendency of Petition No. E002 of 2026, which, it was submitted, challenges the Plaintiffs’ title of the suit properties. 44.The doctrine of sub judice is codified under Section 6 of the Civil Procedure Act which provides that: “No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.” 45.In Muchiri t/a Fancy Auctioneers & another v Thungutha & another [2025] KEELC 4839 (KLR) the Court, while considering whether an objection founded on the doctrine of sub judice could properly be raised by way of a Preliminary Objection held thus: “35. I find that in order to determine whether the rule of sub judice has been offended, the Court has to delve into material facts of the case pending in the High Court, call for pleadings, examine and/or interrogate them to help it determine if the facts in issue are similar. This necessarily puts the matter outside the ambit of a Preliminary Objection.” 13 | P a g e ELCLC E025 OF 2026

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46.Similarly in Margaret Wachu Karuri –vs- John Waweru Ribiro (2021) eKLR, the Court held as follows: “For the Court to determine whether the issues herein were directly and substantially in issue with the other suit, it is this Court’s considered view that it will have to ascertain facts and probe evidence by ascertaining whether the issues raised in the instant suit are the same as the ones in the Appeal aforesaid and further interrogate the prayers sought whether they are the same and relate to the same issues. On whether or not the same is sub-judice, facts have to be ascertained and a preliminary objection cannot be raised on disputed facts. Therefore, this Court holds and finds what has been raised by defendant/objector does not amount to a preliminary objection, and thus the preliminary objection is not merited.” 47. I associate myself fully with the decisions cited above on the doctrine of sub judice. To determine whether the present suit is sub judice, this Court would be required to interrogate the pleadings and material filed in Petition No. E002 of 2026, with a view to ascertaining: whether the matters in issue in both suits are directly and substantially the same; whether the two suits relate to the same subject matter and parties; the nature of the reliefs sought therein; and the status and date of institution of the said Petition. These are, in my view, matters of fact and not of pure law, and cannot properly be determined by this Court at this preliminary stage, and in the absence of the evidence to be placed before it at the opportune time during trial, for examination and evaluation. 48. Indeed, a perusal of the record before this Court reveals that no pleadings, proceedings, or any material from Petition No. E002 of 2026 were placed before the Court for its consideration. In the absence of such material, the Court is not in a position to even prima facie, undertake the comparative exercise necessary to sustain a finding of sub judice. Accordingly, I find that the objection premised on the doctrine of sub judice has not been sufficiently established, and the same cannot be sustained. Whether the Plaintiffs’ application dated 24th April 2026 is merited. 14 | P a g e ELCLC E025 OF 2026

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49. The Plaintiffs aver that the Defendants have trespassed upon their suit properties, and the said trespass continues to cause destruction to their properties. Consequently, they seek to restrain the Defendants from further entering and or interfering with their suit property. 50.The legal framework governing the grant of temporary injunction and where the application herein is premised is set out under Order 40 Rule 1 of the Civil Procedure Rules 2010. It provides: Order 40, Rule 1 Where in any suit it is proved by affidavit or otherwise— 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 affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the 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 fit until the disposal of the suit or until further orders. 51. The principles applicable in an application for an injunction were laid out in the celebrated case of “Giella – Versus - Cassman Brown & Co Limited (1973) EA 358”, where it was stated: “First an applicant must show a prima facie 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 be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 52. The first requirement an applicant has to demonstrate is that he has a prima facie case with a probability of success. The Court in Mrao Ltd v. First American Bank of Kenya Ltd& 2 Others [2003] eKLR, defined prima facie case as follows; 15 | P a g e ELCLC E025 OF 2026

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“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 final 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 fide 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.” 53.The Plaintiffs aver that they are the registered proprietors of the suit properties. In support of that assertion, they annexed copies of official searches relating to the respective parcels. They further contend that, without their consent or other lawful authority, the Defendants entered upon the suit properties and used them as an access route to River Mteza for purposes of excavation and sand harvesting. They allege that there was heavy machinery on the properties and that a portion of their perimeter wall was destroyed in the process. The Plaintiffs exhibited photographs which they contend depict the machinery upon the suit properties and the resulting damage. 54.The Defendants opposed the application through grounds of opposition and submissions. They contended, inter alia, that the Plaintiffs had not produced sufficient evidence of encroachment or trespass and that ownership of the suit properties was disputed. They further relied on an alleged licence authorizing excavation along the river or its riparian area. No replying affidavit was, however, filed to controvert the factual matters deponed to in the Plaintiffs’ supporting affidavit. 55.The Court in ARJ Capital Limited v Njeru & 3 others (Environment & Land Case E041 of 2022) [2024] KEELC 323 (KLR) on the issue of responding to application by ground of opposition, stated thus: 16 | P a g e ELCLC E025 OF 2026

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“From the authorities I have cited above, grounds of opposition are to be deemed as general averments and do not deny or respond to issues in an application. A preliminary objection and grounds of opposition though means of opposing an application, they are not to be used when one intends to deny allegations in an application. In my view a replying affidavit would best serve to deny issues raised in an application. It has been held that where a replying affidavit is not filed then in essence the averments in an application are deemed as uncontroverted and unchallenged. In considering the mode of opposition opted to by the respondents and the averments therein I find that the issues in the application are not rebutted and the application stands unopposed.” 56.It follows that the Plaintiffs’ factual depositions concerning entry upon the suit properties, the use of those properties as an access route, presence of heavy machinery and the alleged damage to the perimeter wall have not been rebutted by affidavit evidence. That does not, however, relieve the Plaintiffs of the legal burden of satisfying the requirements for an injunction. Even where an application is uncontroverted on matters of fact, the Court must independently assess whether the evidence presented establishes a proper basis for the orders sought. 57.At this interlocutory stage, the official searches constitute prima facie evidence of the Plaintiffs’ registered interests in the suit properties. The photographs, when considered together with the depositions in the supporting affidavit, provide evidence of the presence of heavy machinery and alleged interference with the properties. The Court cannot however, at this stage, make a final finding that trespass occurred without probing evidence at the hearing. Prima facie, this court is satisfied that the Plaintiffs have demonstrated an identifiable proprietary right which is apparently threatened or infringed. 58.The Defendants’ reliance on a licence to excavate or harvest material from the adjoining river does not, without more, establish a lawful right of entry upon or passage through the Plaintiffs’ properties. No affidavit evidence or instrument establishing such a right of access has been placed before the Court. 17 | P a g e ELCLC E025 OF 2026

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59.Accordingly, and without making any final determination on ownership, boundaries or liability for trespass, the Court is satisfied that the Plaintiffs have established a prima facie case in respect of the alleged entry upon and interference with the suit properties. 60.The second consideration is whether the Plaintiffs have demonstrated that they are likely to suffer injury which would not adequately be compensated by an award of damages if the injunction is withheld. 61.The Plaintiffs allege continuing and threatened entry by heavy machinery, destruction of the perimeter wall, interference with possession and the use of their land as an access route for excavation activities. If permitted to continue, such conduct may alter the physical condition of the land, occasion repeated interference with possession, and expose the properties to further damage. The Court is reminded that the primary purpose of interlocutory relief is to preserve the suit properties pending the determination of the parties’ respective rights. 62. The Court is therefore satisfied, on the material presently before it, that the Plaintiffs have demonstrated a sufficient likelihood of irreparable injury in relation to unauthorized entry upon and physical interference with the suit properties. 63.Having reached the foregoing conclusions, it is not necessary to determine the application solely on the balance of convenience. Nevertheless, if the Court were in doubt, the balance would favour preserving the Plaintiffs’ possession and the physical condition of the suit properties pending trial. 64.The Defendants contend that an injunction would occasion them substantial economic loss by interrupting their excavation activities. That consideration must, however, be weighed against the Plaintiffs’ right to possession and enjoyment of their properties. A licence to undertake excavation in the river does not, in the absence of a secured right of access, entitle the Defendants to enter or pass through private properties. 18 | P a g e ELCLC E025 OF 2026

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65.The Court finds that an injunction restraining entry upon and interference with the suit properties would preserve the subject matter without determining the validity of the Defendants’ alleged licence or prohibiting activities lawfully undertaken outside the Plaintiffs’ parcels. The balance of convenience therefore favours protection of the suit properties pending the hearing and determination of the suit. 66.The Plaintiffs also seek an order restraining the Defendants from excavating, removing or harvesting sand or any other material from River Mteza adjoining the suit properties. That prayer must be considered separately from the claim concerning entry upon and interference with the suit properties. 67.The fact that the Plaintiffs’ properties adjoin the river does not, by itself, establish ownership of the riverbed, the riparian reserve, or the materials found therein. Nor does it, without more, confer upon the Plaintiffs a private right to prohibit all excavation or sand harvesting undertaken within the river. For that limb of the application to succeed, the Plaintiffs were required to place before the Court prima facie evidence that the excavation was occurring within their surveyed boundaries, or was causing or imminently threatened physical damage to their properties. 68.The material presently before the Court does not sufficiently identify the precise location or coordinates of the Defendants’ excavation activities. Neither has a report or expert assessment been produced to establish that the excavation is being undertaken within the suit properties or that it is causing or imminently threatens identifiable damage to them. The photographs, without further evidence, do not sufficiently resolve that question. 69.Further, to the extent that the prayer seeks to suspend or restrain an activity allegedly authorized by a licence issued by NEMA, granting the order as sought may indirectly suspend the operation of that licence without a determination by the competent statutory body and without the issuing authority being before the Court. 19 | P a g e ELCLC E025 OF 2026

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70.The Plaintiffs have therefore not established a prima facie case for a blanket injunction restraining all excavation, removal or harvesting of material from the river adjoining their properties. That prayer is declined. 71.For avoidance of doubt, the refusal of the blanket river excavation injunction does not authorize the Defendants to enter upon, pass through, excavate within, or cause physical damage to the suit properties. The interlocutory injunction granted shall be confined to the Plaintiffs’ surveyed parcels and shall not operate as a suspension, revocation or variation of any licence permitting lawful operations outside those parcels. 72.Prayer No. 4 of the Plaintiffs’ application seeks a permanent injunction. A permanent injunction is a final relief ordinarily granted upon the hearing and determination of the suit on its merits. Granting a permanent injunction at this stage would substantially determine part of the suit before trial. The prayer is therefore declined, without prejudice to its consideration at the hearing of the main suit. Whether the Defendants’ application dated 8th May 2026 is merited. 73.The Defendants’ application dated 8th May 2026 seeks the discharge or setting aside of the ex parte orders issued on 29th April 2026. Under Order 40 rule 7 of the Civil Procedure Rules, the Court may discharge, vary or set aside an injunction upon application by a party dissatisfied with the order. 74.The Defendants’ application must be considered in light of the Court’s findings on the Plaintiffs’ application. The Court has found that the Plaintiffs have satisfied the threshold for a temporary injunction restraining unauthorized entry upon and interference with the suit properties. It has, however, declined to grant a blanket injunction restraining all excavation or sand harvesting from the adjoining river and has also declined the prayer for a permanent injunction. 75. Accordingly, the ex parte orders of 29th April 2026 are varied in accordance with the interlocutory orders made in this ruling. 20 | P a g e ELCLC E025 OF 2026

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76.The Defendants contended that the present suit ought to be stayed pending payment or settlement of costs awarded in Miscellaneous Application No. E015 of 2025. However, they did not place before the Court the pleadings, proceedings, ruling, order or certificate of costs relating to those proceedings. The Court is therefore unable to ascertain the nature of the dispute, the parties involved, the status of the costs, or the nexus between the Miscellaneous Application and the present suit. 77.A party seeking a stay must place before the Court sufficient material establishing the legal and factual basis for the relief sought. A mere assertion that costs remain unpaid in separate proceedings is insufficient. In the absence of evidence warranting a stay, the prayer is declined. 78. The Defendants also challenged the joinder of the 3rd Plaintiff, asserting that his parcel is situated far from River Mteza and does not adjoin it. However, no survey map, Registry Index Map, deed plan, surveyor’s report or other objective evidence was produced to establish the location or proximity of the parcel to the river. 79.The issue of the 3rd Plaintiff’s parcel, its relationship to the river and whether the alleged activities interfere with his proprietary interests is therefore a factual matter that cannot conclusively be determined at the interlocutory stage. The Court is consequently not persuaded, on the material before it, that the 3rd Plaintiff was improperly joined. The objection is declined at this stage. 80.The Defendants further argued that the discontinuance of the suit against the 2nd to 4th Defendants undermined the Plaintiffs’ case. The discontinuance was, however, allowed by the Court pursuant to the applicable procedure under Order 25 of the Civil Procedure Rules. Unless that order is set aside, reviewed or overturned on appeal, it remains binding, and this Court cannot sit on appeal over its own order. The objection on this ground therefore fails. 81.Finally, the Defendants sought consolidation of the present suit with Petition No. E002 of 2026. However, the relevant pleadings and orders in that Petition 21 | P a g e ELCLC E025 OF 2026

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were not placed before the Court, nor was there a formal application or consent for consolidation. 82.In the absence of the requisite record, the Court cannot determine whether the proceedings raise substantially similar questions of law or fact, whether the reliefs are compatible, or whether consolidation would serve the interests of justice without causing prejudice or procedural unfairness. The prayer for consolidation is therefore declined at this stage, without prejudice to any party’s right to seek consolidation through an appropriate application supported by the relevant record, or by a duly executed consent. Conclusion and Disposition 83.Consequently, upon conducting an elaborate analysis of the issues set out herein, this Honourable Court makes the following orders: i) Pending the hearing and determination of the suit, the Defendants, whether by themselves, their agents, servants, employees or any person claiming under them, are restrained from entering upon, remaining on, or in any way interfering with the Plaintiffs’ quiet possession and enjoyment of those parcels of land known as Kwale/Mbuguni Phase II/227, Kwale/Mbuguni Phase II/210, Kwale/Mbuguni Phase II/741, Kwale/ Mbuguni Phase II/740, Kwale/Mbuguni Phase II/2, Kwale/ Mbuguni Phase II/3, Kwale/ Mbuguni Phase II/5. Kwale/ Mbuguni Phase II/6, Kwale/ Mbuguni Phase II/7, Kwale/Mbuguni Phase II/8, Kwale/ Mbuguni Phase II/10, Kwale/ Mbuguni Phase II/727, Kwale/ Mbuguni Phase II/728, Kwale/ Mbuguni Phase II/14, Kwale/Mbuguni Phase II/16, Kwale/ Mbuguni Phase II/17, Kwale/Mbuguni Phase II/18, Kwale/Mbuguni Phase II/19, Kwale/ Mbuguni Phase II/20, Kwale/ Mbuguni Phase II/38, Kwale/ Mbuguni Phase II/39, Kwale/ Mbuguni Phase II/44, Kwale/Mbuguni Phase II/46, Kwale/ Mbuguni Phase II/86, Kwale/ Mbuguni Phase II/87, Kwale/ Mbuguni Phase II/897, Kwale/ Tsunza/1464, Kwale/Tseunza/119, Kwale/ Tsunza/118, Kwale/Tsunza/110, Kwale/ Tsunza/121 and Kwale/Tsunza/1459 except with the Plaintiffs’ consent or pursuant to a lawful right of access. 22 | P a g e ELCLC E025 OF 2026

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ii) The Plaintiffs’ prayer for a blanket order restraining the Defendants from excavating, removing or harvesting sand or any other material from River Mteza outside the surveyed boundaries of the suit properties is declined. iii) For the avoidance of doubt, nothing in this ruling authorizes the Defendants to enter upon or pass through the suit properties, or to conduct excavation in a manner that causes physical entry upon or direct physical damage to the suit properties. iv) The prayer for a permanent injunction at the interlocutory stage is declined. v) The ex parte orders issued on 29 April 2026 are varied and replaced by the orders made in this ruling. vi) The costs of both applications shall be in the cause. Dated, Signed and Delivered virtually via Microsoft teams at Kwale this 25 th day of September 2026. Hon. E.G Nderitu L J ELC Kwale In the presence of: -Kariuki Henry Advocate for the Plaintiff Ms Halima C/A 23 | P a g e ELCLC E025 OF 2026

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