Chomber v Kosgey & 3 others

engaging in any other way dealing with land parcel Tembeleo/Illula Block 1 (Muinyengwet)/71 belonging to the Plainti/Applicant herein located within Uasin Gishu County. 4. Costs of this Application be provided for. 2. The application is premised on the 15 grounds on the face thereof and supported by the applicant’s Adavit sworn on even date. 3. The applicant deponed that he is an Administrator of the estate and one of the benecial owners of the parcel of land known as Tembeleo/Illula Block 1 (Muinyengwet)/71 (hereinafter referred to as the suit land). 4. It is the applicant’s claim that the subject land of the dispute herein is in danger of being wasted, damaged and/or alienated by the respondents. 5. The applicant contends that the respondents have irregularly and unprocedurally arrogated themselves powers to trespass into the suit land under the guise of opening an access road as contained in the letter dated 26.09.2025. That no lawful justication for the need, nature and quality of access as well as the circumstances leading to the need for opening up an access road has been oered by the respondents to the applicant. 6. It is deponed that the alleged access road is private as opposed to public and the same relates/premised on a contractual obligation between the 1st and 2nd defendants. He thus contends that the alleged access road should be ceded from the 2nd respondent’s portion of land. 7. The applicant thus avers that the decision by the 3rd and 4th respondents to open an access road for the convenience of the 1st and 2nd respondents amounts to trespass and an alteration of boundaries contrary to the legal requirements. 8. He therefore maintains that unless the injunctive relief sought herein is granted, the respondents may proceed to enter upon, trespass by way of ploughing, damage existing fences, occasioning him loss and damage as a result. 9. It is his claim that he has demonstrated the existence of a prima facie case, citing the respondents’ actions as premature and illegal and the irreparable loss that he is likely to suer unless restrained. 10. He thus contends that the balance of convenience lies in favor of granting the orders sought for purposes of maintaining the status quo. He further argues that the respondents will not suer any prejudice or irreparable harm that cannot be compensated by an award of damages if the orders sought are granted. 11. In conclusion, he urged the court to allow the present application and to issue the injunctive reliefs as sought. 12. The application was opposed. The 1st and 2nd Defendants/Respondents led their joint Replying Adavit dated 06.07.2026 and sworn by the 1st respondent, in response to the present application. 13. It is the 1st and 2nd respondents’ claim that the access road intended to be opened is a public access road and the same runs through 3 parcels of land known as TEMBELIO/ILLULA BLOCK 1 (MUINYENGWET)/43, 42 and 71. They maintained that the process of reopening the said access road is being carried out with strict compliance to the law and due process. 14. It is further deponed that the relevant authorities were duly notied and fully involved in the process of determining the access roads, conducting survey which they aver that the ndings thereof revealed https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6116/eng@2026-10-01 2

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that the existing road access on the ground was about 3m as opposed to the actual measurement of 9m as contained on the map. 15. It is their contention that the survey ndings recommended that the owners of parcel No. Tembeleo/ Illula Block 1 (Muinyengwet)/71 and 42 to cede a portion measuring 3m each along the existing road to maintain the actual road measurement of 9m as contained in the map. 16. The 1st and 2nd respondents thus aver that contrary to the applicant’s allegations, the entire exercise leading to the recommendation of each party ceding the 3m portion from their parcels was lawfully done and justied. 17. It is therefore their claim that blocking the passage of the access road, which they maintain is a public road, amounts to unlawful restriction of a right of way and is thus a prejudice to only the respondents but to the surrounding community. 18. Consequently, it was deponed that the applicant has failed to establish a prima facie case with a probability of success to warrant the grant of the temporary injunction sought and as a result the balance of convenience tilted in favor of the respondents and the public at large who would benet from the opening of the access road. 19. The respondents also averred that no irreparable injury would be suered by the applicant if the injunctive order is not granted for the reason that the survey exercise carried out established the exact meters and acreage to be ceded from each parcel. 20. In conclusion, the 1st and 2nd respondents urged the court to dismiss the present application with costs in the interest of justice and fairness. 21. From a perusal of the court record and the online ling platform (CTS), I have not seen any response to the present application led on behalf of the 3rd and 4th Respondents. It is therefore deemed that the 3rd and 4th Respondents are not opposed to the present application. 22. The 1st and 2nd Respondent’s Replying Adavit was duly served upon the applicant. However, I have not seen any Supplementary and/or Further Adavit led by the applicant in response thereto. 23. This court issued directions on the disposal of the application by way of written submissions. The applicant led his submissions dated 19th May, 2026 while the 1st and 2nd respondents led their joint submissions dated 7th July, 2026 together with authorities which I have read and considered. Analysis and Determination: 24. I have carefully considered the grounds in the application, the facts in the Supporting Adavit and the annexures therein, the grounds in the 1st and 2nd Replying Adavit in response to the application as well as the rival submissions in totality. 25. It is therefore my considered view that the sole issue arising for determination is: i. Whether the applicant has suciently met the requirements for the grant of an order of temporary injunction. Whether the applicant has suciently met the requirements for the grant of an order of temporary injunction; 26. The applicant in prayer No. (iii) has sought the grant of an order of temporary injunction restraining the Defendants/Respondents, either by themselves, their agents, servants and/or anybody claiming https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6116/eng@2026-10-01 3

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under them from entering, remaining upon, ploughing, damaging existing boundaries, opening and/ or creating an access road or engaging and dealing in any other way with the parcel of land known as Tembeleo/Illula Block 1 (Muinyengwet)/71 (the suit property herein), located within Uasin Gishu County pending the hearing and determination of the main suit. 27. This issue therefore seeks to determine and ascertain whether the applicant has met the threshold for the grant of the said temporary injunctive relief against the respondent in the nature sought. 28. The legal framework underpinning the grant of injunctive reliefs, temporary or permanent is provided in Order 40 (1) (2) of the Civil Procedure Rules which governs the grant of temporary injunction, as well as section 13 (7) (a) of the Environment and Land Court Act, 2015 which empowers this court to grant interim preservation orders, including an interim order of injunction as sought herein. 29. The principles governing the grant of temporary injunctions are now well settled. The same were set out in the celebrated case of Giella vs Cassman Brown and Co. Ltd [1973] EA. 358 at 360 and has been reiterated and progressively developed in several other cases over the years. 30. The Court of Appeal in the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 others [2014] eKLR restated this position and held as follows: “ …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 stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… if the applicant establishes a prima facie case that alone is not sucient basis to grant an interlocutory injunction, the court must further be satised that the injury the respondent will suer, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.” 31. These 3 elements and conditions should be surmounted sequentially; applied as separate, distinct and logical hurdles. The existence of one element alone does not automatically entitle an applicant to an order of injunction without considering the other elements. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. 32. Having identied the necessary conditions and/or governing principles for the grant of interlocutory injunctions, this court will therefore proceed to discuss each element in considering whether the same had been proved to the required standard. The burden of proof as outlined in sections 107,108,109 and 110 of the Evidence Act lies with the Applicant. Prima Facie Case; 33. The applicant is under a duty to demonstrate the existence of a prima facie case which raises arguable and triable issues with a probability of success. 34. The Court of Appeal in Mrao Ltd vs. First American Bank of Kenya and 2 Others (2003) KLR 125 explained what amounts to a prima facie case and stated as follows: “ a prima facie case in a civil application includes but is not conned to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6116/eng@2026-10-01 4

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directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 35. The question that therefore follows is whether the applicant has established a prima case and demonstrated that there exists a right which has been infringed by the defendant/respondent to warrant the grant of the injunctive orders sought. 36. The ownership of the suit property herein is not in dispute. The same belongs to the applicant. It is also not in dispute that there is an access road touching parcels Nos. 42, 43 and 71 and which is currently 3m wide. 37. What however appears to be in dispute is the process that led to the survey exercise, ndings and recommendations by the 4th respondent and whose eect is to carve out a portion of land measuring 3m from the applicant’s parcel of land No. 71 and whether or not the intended access road is a public road or private road. 38. The applicant avers that there is an imminent threat and risk that the 4th respondent may proceed into the suit property at any moment and carve out the portion measuring 3m, plough the land, alter the existing boundaries and permanently cause damage to the existing fence and the land itself unless restrained. 39. It is the applicant’s claim that the said process leading to the said recommendation was irregular and unprocedural and that the same were not anchored on any statutory process. 40. The 1st and 2nd respondents on the other hand aver that no prima facie case had been established by the applicant. That the intended access road is a public road and the process leading to the recommendation for its reopening was lawfully done in strict compliance with the due process and was therefore justied. 41. It is their argument that blocking the access road would amount to unlawful restriction of their right of way and which would in turn be prejudicial to both the respondents and the general public from the surrounding area. 42. I have carefully considered the rival positions by the parties herein. I have also critically looked at the plaint and the defence led and the substantive issues arising therefrom. Subsequently, this court is careful not to delve into the merits of the substantive issues touching on the process leading to the recommendation by the 4th respondent, whether the intended access road is public or private as well as the ground vis a vis the map measurement of the access road, at this interlocutory stage without giving the parties an opportunity to be heard and to adduce their evidence. 43. Be that as it may, it is clear and evident that there is an imminent risk and danger of the 4th respondent proceeding to plough and carve out the 3m from the suit property to form part of the intended access road. The eect of implementing the said recommendation made by the 4th respondent and carving out the 3m from the suit land will not only in my considered view cause damage to the existing fence, alter the boundaries on the land as well as the physical land itself but will also alter the substratum and/ or subject of the suit herein. 44. One of the main purposes of an interlocutory injunctive order as seen in the Court of Appeal decision in Nguruman (supra) is to preserve the subject matter of the suit by maintaining the obtaining status quo. 45. In view of the foregoing, this court nds that the applicant has suciently demonstrated the existence of a prima facie case as dened in the Mrao case to the required standard. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6116/eng@2026-10-01 5

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Irreparable Loss and Injury; 46. The second element is that an applicant must demonstrate the irreparable loss and injury that he is likely to suer that cannot be adequately compensated by an award of damages unless an order of injunction is granted. This injury must be actual, substantial and demonstrable and not mere unfounded fears or apprehension. 47. In the Court of Appeal case of Nguruman Limited v Jan Bonde Nielsen & 2 Others (supra), while dening what amounts to an irreparable injury, the court held as follows; “ On the second factor, that the applicant must establish that he “might otherwise” suer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 48. The applicant avers that unless restrained, the respondents may proceed and enter upon the suit property, plough the same to carve out the 3m portion, unlawfully alter the boundaries of the land, cause damage to the existing fence and further cause a permanent physical alteration on the land. These actions the applicant maintained are not reversible and will occasion him loss and damage. 49. The 1st and 2nd respondents on their part did aver that no irreparable loss and injury would be occasioned on the applicant if the injunctive orders sought is not granted since the survey exercise was lawfully done. 50. On the contrary, it is their claim that the eect of granting the said orders would amount to blocking and restricting their access to their lawful properties’ contrary to the provisions of Article 40 of the Constitution. This as a result will occasion the respondents as well the general public from the surrounding area great prejudice and irreparable harm. 51. This court has critically considered the rival positions by the parties herein and even though the intended access road may be used for the common good of not only the respondents but also the public at large and members in the surrounding community, I have taken into account the eect of the 4th respondent proceeding with the said exercise without a substantive determination of the issues in dispute by the court herein. 52. Moreover, the material before this court points to the fact that there is an access road on the ground although the same measures only 3m. It is therefore not true for the respondents to suggest that the eect of allowing the present application would be to restrict and block them from accessing their lawful properties. 53. Consequently, this court nds that the applicant has suciently demonstrated the irreparable loss and injury that he is likely to suer unless the orders sought herein are granted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6116/eng@2026-10-01 6

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Balance of Convenience; 54. The nal element is on the balance of convenience. On this element, the court is called upon to balance the hardship or inconvenience likely to be caused to the applicant by declining the injunction against the hardship or inconvenience likely to be caused to the respondents by granting the injunction. 55. In light of the foregoing, this court nds that the balance of convenience lies in favor of the applicant in granting the orders of temporary injunction sought. 56. The totality of the foregoing is that the applicant has suciently proved all the three elements and has therefore met the required threshold for the grant of a temporary injunction. Who shall bear the costs of the application 57. It is well settled that costs follow the event unless the court directs otherwise. 58. In this case, having held that the applicant has suciently proved his application, it is my nding that he is entitled to costs of the application. Conclusion: 59. 60. In view of the foregoing, it is the nding of this court that the Notice of Motion Application dated 1st April, 2026 is merited and is hereby allowed on the following terms: a. The application dated 01.04.2026 be and is hereby allowed. b. An order of temporary injunction be and is hereby issued restraining the Defendants/ Respondents either by themselves, their agents, servants and/or anybody claiming under them from entering, remaining upon, ploughing, damaging existing boundaries, opening and/or creating an access road and/or engaging in any other way dealing with land parcel Tembeleo/ Illula Block 1 (Muinyengwet)/71 belonging to the Plainti/Applicant herein located within Uasin Gishu County pending the hearing and determination of the main suit. c. Costs of the present Application be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED IN ELDORET THIS 1ST DAY OF OCTOBER, 2026. HON. C. K. YANO ELC, JUDGE Ruling delivered virtually in the presence of: Ms. Mutai holding brief for Mr. Muhatia Pala for the 1st and 2nd Defendants/Respondents. Mr. Nyambane for the Plainti/Applicant. Ms. Rop holding brief for Mr. Kwame for 3rd and 4th Defendants. Court Assistant – Laban https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6116/eng@2026-10-01 7

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