George Kimunge v Priscilla Mukami Gachau

1. THAT the Learned Trial Magistrate erred in law and fact by failing to appreciate the evidence on record demonstrating that the Respondent lacked locus standi to institute the suit. 2. THAT the Learned Trial Magistrate erred in law and fact and misdirected herself by holding that the Respondent had established a prima facie case in her application dated 3rd March 2025 in the absence of sufficient or credible evidence. 3. THAT the Learned Trial Magistrate erred in law and fact in finding that a prima facie case had been established by the Respondent who was only a witness to the agreement in question and not a party thereto. 4. THAT the Learned Trial Magistrate erred in law and fact by allowing injunctive relief without satisfying the threshold for grant of interlocutory injunctions. 5. THAT the Learned Trial Magistrate erred in law and fact by allowing injunctive orders on parcel Number RUIRU/KIU/BLOCK 2/13898 which is different from the suit property RUIRU/KIU/BLOCK 2/2935. 6. THAT the Learned Trial Magistrate erred in law and fact and misapprehended the facts by granting injunctive orders over the wrong parcel – RUIRU/KIU/BLOCK 2/13898 – while the property allegedly claimed by the Respondent upon which construction materials were deposited is RUIRU/KIU/BLOCK 2/13901. ELCLA NO. E077 OF 2025 2|Page

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7. THAT the Learned Trial Magistrate erred in law and fact by issuing orders that are final in nature and effectively determine suit before it is heard and determined on merit. 8. THAT the Learned Trial Magistrate erred in law and fact in considering evidence introduced by the Respondent at the submissions stage. 9. THAT the Learned Trial Magistrate Court erred in law and in fact by allowing all prayers in the Respondent's application dated 3rd March 2025 contrary to the weight of the evidence and without exercising judicial discretion judiciously. 3) The Appellant prays for Orders that; a) That the appeal herein be allowed. b) That the Ruling issued on 18/06/2025 be set aside in entirety. c) That the Appellant be awarded the costs of this appeal and the proceedings in the lower Court. 4) The Appeal was canvassed by way of written submissions. The Appellant filed their submissions dated 18/08/2026 and the Respondent filed theirs dated 27/08/2026. 5) The Appellant is aggrieved by the Ruling and orders of Honourable Noelle Kyanya, DR, delivered on 18/06/2025 in Ruiru Principal Magistrates Court Chief Magistrate’s Court Environment and Land Court Case Number E127 of 2024, Priscilla Mukami Gachau v George Kimunge, ELCLA NO. E077 OF 2025 3|Page

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wherein the trial Court allowed the Respondent's Notice of Motion dated 03/03/2025. The Appellant contends that the learned trial Magistrate erred in law and fact by issuing injunctive orders over parcel number RUIRU/KIU/BLOCK 2/13898, which amount to final eviction orders at an interlocutory stage, effectively determining the suit before a hearing on the merits. Through a Record of Appeal dated 29/05/2026 and a Supplementary Record of Appeal dated 21/07/2026, the Appellant challenges the impugned Ruling on several fronts, notably the Respondent's lack of locus standi, the failure to establish a prima facie case, misidentification of the suit property, reliance on evidence improperly introduced through submissions, and the improper grant of final orders. 6) The Appellant submits that the Respondent lacked the requisite locus standi to institute the suit and seek the orders granted, as she was merely a witness to the underlying agreement rather than a primary contracting party. To reinforce the doctrine of privity of contract, the submissions rely on the decision in Ndungu & 2 Others v Patrick & 5 Others [2024] KEELC 7014 (KLR), where the Court held that persons who merely sign as witnesses or on behalf of a company do not acquire rights or incur liabilities under an agreement, and cited the principle from Industrial and Commercial Development Corporation v Daber Limited [2001] eKLR that claims which are legally untenable must ELCLA NO. E077 OF 2025 4|Page

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be terminated. This position is further fortified by the Court of Appeal decision in William Muthee Muthami v Bank of Baroda [2014] KECA 591 (KLR), which applied the foundational common law principle on privity enunciated by Wightman, J. in Tweedle v Atkinson (1861) EWHC QB J57, stating that no stranger to consideration can take advantage of a contract, alongside reference to Halsbury’s Laws of England and Aineah Liluyani Njirah v Aga Khan Health Services [2013] Civil Application No. 194 of 2009. 7) The Appellant further asserts that the Respondent failed to satisfy the settled tripartite test for the grant of interlocutory injunctions established in Giella v Cassman Brown & Co. Ltd [1973] EA 358, as interpreted in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR) and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, which require an Applicant to demonstrate a prima facie case with a probability of success as a sequential and mandatory hurdle before considering irreparable injury or the balance of convenience. Because the Respondent possessed no enforceable legal interest and had never been in occupation of the Appellant's parcel number RUIRU/KIU/BLOCK 2/13898, no prima facie case existed to warrant equitable protection. 8) He further submitted through his Counsel that compounding these legal ELCLA NO. E077 OF 2025 flaws, the trial Magistrate committed a 5|Page

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fundamental error regarding the identity of the property. The suit property was properly pleaded as RUIRU/KIU/BLOCK 2/2935, whereas the impugned orders were issued against the Appellant's parcel number RUIRU/KIU/BLOCK 2/13898, and the Respondent's allegations regarding construction materials pertained entirely to a third distinct parcel, RUIRU/KIU/BLOCK 2/13901. The Appellant maintains that an injunction cannot attach to a subject matter outside the pleadings. Furthermore, the trial Court erred by considering extraneous material introduced by the Respondent at the submissions stage. Citing Otiende v Nadida [2022] KEELC 15574 (KLR), Erastus Wade Opande v Kenya Revenue Authority & Another Kisumu HCCA No 46 of 2007, and Nancy Wambui Gatheru v Peter W Wanjere Ngugi Nairobi HCCC No 36 of 1993, the Appellant reminds the Court that submissions do not constitute evidence and cannot be used to plug evidentiary gaps or introduce new factual matters by ambush. 9) The Appellant faults the lower Court for granting orders that were final in nature at an interlocutory stage. Citing Olive Mwihaki Mugenda & Another v Okiya Omtatah Okoiti & 4 Others [2016] eKLR, which adopted the persuasive Indian authority of Ashok Kumar Bajpai v Dr. (Smt) Ramjama Bajpai AIR 2004 ALL 107 alongside local precedents including Vivo Energy Kenya Limited v Maloba Petrol Station Limited and 3 Others [2015] ELCLA NO. E077 OF 2025 6|Page

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eKLR and Stephen Kipkebut t/a Riverside Lodge and Rooms v Naftali Ogola [2019] eKLR, the Appellant reiterates that major relief and mandatory orders should not be granted summarily. He reiterates that this principle is reinforced by Kenya Breweries Limited v Washington Okeyo [2002] 1 EA 109 and Kiragu v Murimi [2022] KEHC 15910 (KLR), which extensively reviewed authorities such as Locabail International Finance Ltd v Agroexport and Others [1986] 1 All ER 901, Lucy Wangui Gachara v Minudi Okemba Lore [2015] eKLR, Bharat Petroleum Corp Ltd v Haro Chand Sachdeva AIR 2003 Delhi, and Paul Mwaniki Gachoka & Another v Nation Media Group Limited & Another [2019] eKLR, establishing that mandatory injunctions require exceptional circumstances and clear-cut cases rather than a summary sacrifice of a party's right to plenary trial. The Appellant concludes that the learned trial Magistrate failed to exercise judicial discretion judiciously and prays that this Court allows the appeal with costs and sets aside the Ruling and orders of 18th June 2025 in their entirety 10) In their written submissions dated 27/08/2026 through their Counsel the Respondent defends the Ruling of the lower Court, urging the Appellate Court to dismiss the appeal with costs. In their submissions the Respondent traces the background of the dispute back to December 2011, when the Respondent, who is married to the Appellant's nephew Burton ELCLA NO. E077 OF 2025 7|Page

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Kibui, purchased plot 02 on land parcel RUIRU/KIU BLOCK 2/2935 from the Appellant for the sum of Kesh 300,000 (three hundred thousand shillings). The transaction was formalized through a Sale Agreement where the Respondent was expressly named as the buyer and her husband served as her witness. Although the purchase price was fully paid and the Respondent was placed in possession of the land, the actual transfer of the property into her name was never effected despite numerous pleas. 11) According to the Respondent, it later transpired that the contractual parcel had undergone subdivision, resulting in the creation of new titles, including land parcel RUIRU/KIU BLOCK 2/13898, which was issued directly in the name of the Appellant. That the Respondent intermittently stored building materials on the site, but after temporarily halting her development plans due to financial constraints, she resumed them in late 2022 by engaging a contractor. Shortly thereafter, unknown individuals disrupted the contractor under instructions from the Appellant. In early 2023, the Appellant forcefully evicted the Respondent's building materials and commenced the construction of a perimeter wall. Efforts to resolve the matter through family meetings and police reports proved futile, prompting the Respondent to institute a suit at the Ruiru Law Courts alongside an application for property preservation. ELCLA NO. E077 OF 2025 8|Page

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12) According to the Respondent the lower Court initially issued preservation orders regarding the original contractual parcel, RUIRU/KIU BLOCK 2/2935. Following a Preliminary Objection raised by the Appellant and subsequent procedural developments, the Respondent discovered the subdivision and the issuance of the new title. This necessitated an amendment to the Plaint and the filing of a fresh application dated 03/03/2025 to safeguard the newly created parcel, RUIRU/KIU BLOCK 2/13898, which culminated in the Ruling in favor of the Respondent on 18/06/2025 that now anchors the appeal. 13) The Respondent maintains that she possesses the requisite locus standi to institute the suit as the bonafide purchaser of the contractual parcel. Furthermore, she asserts that she established a strong prima facie case with a high probability of success, satisfying the established legal principles set out in Giella versus Cassman Brown and Company Limited (1973) EA 358. The nexus between the original parcel and the newly created parcel was sufficiently demonstrated and even acknowledged by the Appellant in paragraph 7 of his Counterclaim, as well as by entry number 6 of the proprietorship register of the parent title. 14) The Respondent contends that she stands to suffer irreparable injury that cannot be compensated by way of damages, given her sentimental attachment to the land and her intention to construct a matrimonial home for her family. ELCLA NO. E077 OF 2025 9|Page

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On the balance of convenience, the Respondent submits that the trial Magistrate exercised sound judicial discretion, drawing support from the principles articulated in Chatter House Investment Limited versus Simon K Sang and 3 Others, Civil Appeal Number 315 of 2004 (2010) eKLR, as cited in Parkside Medical Centre Limited versus Nairobi City County (2022) eKLR. Additionally, relying on the locus classicus Mrao versus First American Bank of Kenya Limited and 2 Others (2003) KLR 125, which was cited in Kenya Pipeline Company Limited versus Richard Kioko Kiundi, Civil Appeal Number 32 of 2006 (2015) eKLR, the Respondent argues that an apparent infringement of her right to property was established, shifting an evidential burden of rebuttal to the Appellant, which he failed to discharge. 15) The Respondent further dismisses the Appellant's grounds alleging that the trial Court granted orders over the wrong property, introduced evidence improperly through submissions, or issued final orders at an interlocutory stage. She clarifies that the interlocutory injunction did not determine substantive ownership rights but merely preserved the subject matter of the dispute to prevent the proceedings from being rendered infructuous. To reinforce the necessity of Court control over litigated property, the Respondent invokes the doctrine of lis pendens as discussed by the Supreme Court of India in Jayaram Mudaliar versus ELCLA NO. E077 OF 2025 10 | P a g e

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Ayaswami, AIR 1973 SC 569, which was cited in Cove Investment Ltd versus Johana Kiprotich Rono and 3 Others, Civil Appeal (Application) E051 of 2025 (2025) KECA 1089 KLR. Concluding her submissions, the Respondent castigates the Appellant for engaging in bare denials, misrepresenting facts, and failing to approach the Court with clean hands, ultimately praying that the appeal be dismissed with costs. Issues for Determination 16) I have considered the Record of Appeal, the Supplementary Record of Appeal, the impugned Ruling and the written submissions of both parties. The nine grounds have a lot of overlaps leading to the following as the key issues for determining this Appeal: i) What principles govern this Court in an appeal against the exercise of a trial Court's discretion on an interlocutory application? ii) Whether the Respondent had locus standi to institute the suit, or whether she was a stranger to the Sale Agreement as a mere witness (Grounds 1 and 3). iii) Whether the Respondent met the threshold for an interlocutory injunction, and whether the trial Court exercised its discretion judiciously (Grounds 2, 4 and 9). ELCLA NO. E077 OF 2025 11 | P a g e

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iv) Whether the trial Court granted injunctive orders over a parcel outside the pleadings (Grounds 5 and 6). v) Whether the trial Court relied on evidence introduced at the submissions stage (Ground 8). vi) Whether the orders granted were final in nature and determined the suit at an interlocutory stage (Ground 7). vii) What orders should issue, including on costs. Analysis and Determination 17) The impugned Ruling was made in the exercise of judicial discretion on an application under Order 40 of the Civil Procedure Rules. An appellate Court does not substitute its own discretion merely because it might have decided the matter differently. The governing principle was stated by Sir Clement de Lestang, VP, in Mbogo & Another v Shah [1968] EA 93: "I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior Court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because ELCLA NO. E077 OF 2025 it failed to take into consideration 12 | P a g e

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matters which it should have taken into consideration and in doing so arrived at a wrong conclusion." 18) In the same case, Newbold, P. added that a Court of Appeal should not interfere with the exercise of discretion by a single Judge unless it is satisfied that the Judge misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of discretion and that, as a result, there was injustice. 19) It must also be kept in mind that this is an Appeal from an interlocutory Ruling. The suit and the Counterclaim remain pending before the trial Court. Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396 cautioned: "It is no part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial." 20) This Court will therefore confine itself to whether the trial Court applied the correct principles to the material before it. It will make no definitive findings on the merits of the suit or the Counterclaim. ELCLA NO. E077 OF 2025 13 | P a g e

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21) On the second issue on locus, privity of contract and standing one cannot ignore the fact that the question of locus standi goes to the root of a Court's jurisdiction to entertain a suit. The Appellant contends that the Respondent lacks standing because she was merely a witness to the 2011 Sale Agreement, while her husband, Burton Kibui, was the actual party. Under the doctrine of privity of contract, a contract cannot confer rights or impose obligations arising under it on any person except the parties to it. Black's Law Dictionary (9th ed.) defines standing as a party's right to make a legal claim or seek judicial enforcement of a duty or right. The question is whether the Respondent has a sufficient legal interest in the subject matter to bring the claim. The Appellant's case is that she was merely a witness to the Sale Agreement and is therefore a stranger to it. 22) This foundational common law rule was articulated by Wightman J. in Tweedle v Atkinson (1861) EWHC QB J57, where it was established that no stranger to the consideration can take advantage of a contract, a principle deeply embedded in Kenyan jurisprudence as illustrated in William Muthee Muthami v Bank of Baroda [2014] KECA 591 (KLR) and Ndungu & 2 Others v Patrick & 5 Others [2024] KEELC 7014 (KLR). 23) The Court of Appeal adopted the statement of the doctrine in Halsbury's Laws of England (4th ed., Vol. 9, para ELCLA NO. E077 OF 2025 14 | P a g e

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334) in Agricultural Finance Corporation v Lengetia Limited [1985] KLR 765: "As a general rule a contract affects only the parties to it, and cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it." 24) However, an analysis of the primary material on record, specifically the Sale Agreement dated 5/12/2011, reveals a distinct factual reality. The document explicitly lists George Kimunge B. as the vendor and Priscillah Mukami, the Respondent as the purchaser, with Burton Kibui serving as her witness. Therefore, the Respondent is not a stranger to the contract; rather, she is the primary contracting purchaser. 25) To contextualize this under standard legal commentaries, Mulla on the Code of Civil Procedure highlights that standing must be evaluated based on the substantive legal rights asserted by a Plaintiff rather than superficial mischaracterizations by an opposing party. Similarly, Halsbury's Laws of England underscores that a party who demonstrates a direct proprietary, contractual, or beneficial interest in the subject matter possesses the requisite locus standi to seek equitable interventions from a Court of law. Furthermore, as observed in Industrial and ELCLA NO. E077 OF 2025 15 | P a g e

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Commercial Development Corporation v Daber Limited [2001] eKLR, Courts must strike out claims that are legally untenable, but where a Plaintiff establishes a direct contractual nexus as the Respondent has done here locus standi is properly established. 26) The Appellant's authorities namely Ndungu & 2 Others v Patrick & 5 Others [2024] KEELC 7014 (KLR) and William Muthee Muthami v Bank of Baroda [2014] KECA 591 (KLR)) correctly state that a person who signs only as a witness acquires no rights under the agreement. They would be decisive if the record bore out the Appellant's characterisation. It does not. The Sale Agreement of December 2011 names the Respondent as the purchaser of Plot 02 on RUIRU/KIU/BLOCK 2/2935 for Kshs 300,000. As already stated at paragraph 23 above, it is her husband, Burton Kibui, who appears as her witness. The Appellant, as vendor, signed the same agreement. The Appellant has not shown any other document by which a different person bought the plot. 27) Further, the Respondent pleads that she paid the full purchase price and was put in possession. In Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR, the Court of Appeal held that where a purchaser has paid the purchase price and been let into possession, equity may impose a constructive trust on the vendor. Whether such a trust arises here is a question for ELCLA NO. E077 OF 2025 16 | P a g e

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trial. It does show, however, that the Respondent's interest is not confined to the contract and is at the least arguable. 28) I find that the Respondent is, on the face of the record, the named purchaser under the agreement and has locus standi to sue on it. The doctrine of privity does not assist the Appellant. Grounds 1 and 3 fail. 29) On whether the threshold for an interlocutory injunction was met, the principles governing the grant of interlocutory injunctions are well settled in East Africa. An Applicant must satisfy the tripartite test set out in the locus classicus Giella v Cassman Brown & Co. Ltd [1973] EA 358, which requires proof of a prima facie case with a probability of success, the likelihood of suffering irreparable injury that cannot be adequately compensated by an award of damages, and, if the Court is in doubt, deciding the matter on a balance of convenience. 30) This framework was further elaborated by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR) and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, where it was held that a prima facie case is not merely an arguable case, but one which, on the material presented, leads a tribunal to conclude that a right has been apparently infringed, calling for a rebuttal from the opposite party. 31) Black's Law Dictionary similarly describes a prima facie case as a party's production of enough evidence to allow the ELCLA NO. E077 OF 2025 17 | P a g e

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fact-trier to infer the fact at issue and rule in that party's favour. The test does not require proof on a final standard. It requires an apparent right and an apparent infringement calling for an answer. 32) In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal stressed that the three conditions are applied in order: "These are clearly distinct and logical hurdles which the Applicant is expected to surmount sequentially." 33) The Court went on: "If prima facie case is not established, then irreparable injury and balance of convenience need no consideration." 34) Mulla, commenting on Order XXXIX of the Indian Code of Civil Procedure (the equivalent of our Order 40), explains the purpose of a temporary injunction. It is to keep the subject matter of the suit in status quo until the rights of the parties are decided, so that the final decree is not rendered nugatory. Halsbury's Laws of England states the same purpose: an interlocutory injunction protects the Applicant's alleged right until the trial, where damages would not be an adequate remedy. 35) Applying these principles; the Respondent produced a Sale Agreement naming her as purchaser, evidence of payment of the full price, and evidence of possession and of ELCLA NO. E077 OF 2025 18 | P a g e

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building materials placed on the land. She also showed that the Appellant, still the registered proprietor, had removed her materials and begun building a perimeter wall. That material discloses an apparent right and an apparent infringement which called for an explanation or rebuttal from the Appellant, in the terms of Mrao (supra). The Appellant's answer is mainly the locus standi objection, which I have rejected, and a denial of the Respondent's interest. Those are disputes of fact for trial. They do not displace a prima facie case. 36) On irreparable injury, the subject matter is land. The Respondent's case is that she bought a specific plot to build a matrimonial home. Land is generally regarded as unique, and its loss through alienation or development by the opposite party pending trial is not ordinarily compensable in damages. Since title remains in the Appellant's name, he could transfer, charge or develop the land before the suit is determined. If that happened, the Respondent's claim for specific performance would be defeated. 37) On the balance of convenience, the Respondent relied on Chatter House Investment Ltd v Simon K Sang & 3 Others [2010] eKLR, as cited in Parkside Medical Centre Ltd v Nairobi City County [2022] eKLR. Preserving the land harms neither party irretrievably; if the Appellant succeeds at trial, he keeps the land with his title intact. If the land is not preserved and the Respondent succeeds, she ELCLA NO. E077 OF 2025 19 | P a g e

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may find the property gone. The balance of convenience favours preservation. 38) Accordingly, I find no misdirection in the trial Court's application of the Giella principles. The decision was within the range of reasonable exercises of discretion described in Mbogo v Shah. Grounds 2, 4 and 9 fail. 39) On the issue of identity of the suit property and evidence at the submissions stage or whether the orders were granted over a parcel outside the pleadings. The Appellant raised objections regarding the identity of the suit property, arguing that the initial pleadings referred to parcel RUIRU/KIU/BLOCK 2/2935 while RUIRU/KIU/BLOCK 2/13898, the with orders further targeted confusion surrounding parcel RUIRU/KIU/BLOCK 2/13901. Additionally, the Appellant contended that the trial Magistrate erred by relying on an extract of the proprietorship register introduced improperly during the submissions stage. 40) It is a cardinal rule of civil litigation that submissions do not constitute evidence. As affirmed in Otiende v Nadida [2022] KEELC 15574 (KLR), Erastus Wade Opande v Kenya Revenue Authority & Another Kisumu HCCA No 46 of 2007, and Nancy Wambui Gatheru v Peter W Wanjere Ngugi Nairobi HCCC No 36 of 1993, parties cannot use written submissions to smuggle in new evidence or plug fundamental evidentiary gaps by ambush. Parties are ELCLA NO. E077 OF 2025 20 | P a g e

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bound by their pleadings, and a Court may not grant relief on a matter not pleaded. 41) In Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR, the Court of Appeal adopted the following passage from Malawi Railways Ltd v Nyasulu [1998] MWSC 3: "As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings… For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made." 42) The key words are "without due amendment properly made". The record shows that the Respondent learnt during the proceedings that RUIRU/KIU/BLOCK 2/2935 had been subdivided and that a resultant title, RUIRU/KIU/BLOCK 2/13898, had been issued in the Appellant's name. She amended her Plaint to bring that parcel into the suit and then filed the application of 03/03/2025 to protect it. The parcel is therefore not outside the pleadings. It is pleaded in the Amended Plaint. 43) A perusal of the lower Court record reveals that the core factual foundation regarding the subdivision of the parent parcel and the generation of new titles including ELCLA NO. E077 OF 2025 21 | P a g e

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RUIRU/KIU/BLOCK 2/13898 was already pleaded in the Amended Plaint and the Supporting Affidavit of the application dated 3/03/2025. The document exhibited during submissions merely served an illustrative purpose regarding an administrative entry already on record. 44) Thus, the link between the parent and the resultant parcel is shown by the Appellant's own Counterclaim at paragraph 7, and by entry number 6 in the proprietorship section of the register of the parent title. A party cannot rely on a subdivision he carried out to argue that the land is no longer the land in dispute. The doctrine of lis pendens exists to prevent exactly that. Furthermore, the Appellant admitted the excision in his own pleadings, rendering the technical objection regarding property identity untenable. 45) The doctrine of lis pendens is preserved by Section 107(1) of the Land Registration Act, as recognised in Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another [2015] eKLR. The Respondent also relied on Jayaram Mudaliar v Ayyaswami AIR 1973 SC 569, as cited in Cove Investment Ltd v Johana Kiprotich Rono & 3 Others [2025] KECA 1089 (KLR). 46) Therefore, on the parcel RUIRU/KIU/BLOCK 2/13901; the Appellant says the building materials were deposited on that parcel and not on 13898. Which of the resultant subdivisions corresponds to Plot 02 of the original agreement is a question of fact. It will require the subdivision scheme, ELCLA NO. E077 OF 2025 22 | P a g e

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survey evidence and oral testimony at trial. It cannot be resolved on Affidavits at the interlocutory stage, per American Cyanamid (supra). For present purposes, the Appellant's own Counterclaim links the Respondent's claim to 13898. The trial Court did not err in preserving that parcel. Grounds 5 and 6 fail. 47) On the 5th issue on whether the trial Court relied on evidence introduced in submissions, the law is clear that submissions are not evidence. In Daniel Toroitich Arap Moi v Mwangi Stephen Murithi & Another [2014] eKLR, the Court of Appeal held: "Submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law of evidence." 48) The authorities the Appellant cited (Otiende v Nadida [2022] KEELC 15574 (KLR), Erastus Wade Opande v Kenya Revenue Authority & Another, Kisumu HCCA No. 46 of 2007, and Nancy Wambui Gatheru v Peter W Wanjere Ngugi, Nairobi HCCC No. 36 of 1993) are to the same effect. 49) The question, however, is not whether some material appeared in submissions. It is whether the trial Court's decision depended on that material. Leaving aside anything that first appeared in the Respondent's submissions, the ELCLA NO. E077 OF 2025 23 | P a g e

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following was properly before the trial Court; the Sale Agreement, the Amended Plaint, the Supporting Affidavit, and the Appellant's own Counterclaim acknowledging the link between the parent and resultant parcels. That material was enough to support the findings made. Even if the trial Court referred to material it ought not to have considered, the error did not affect the result. Ground 8 fails. 50) On the 6th issue on nature of the orders issued whether it was preservation versus final determination. The Appellant argued that the trial Court's orders amounted to a mandatory and final eviction order, effectively determining the main suit at an interlocutory stage. In support, the Appellant cited Olive Mwihaki Mugenda & Another v Okiya Omtatah Okoiti & 4 Others [2016] eKLR, Vivo Energy Kenya Limited v Maloba Petrol Station Limited and 3 Others [2015] eKLR, and Stephen Kipkebut t/a Riverside Lodge and Rooms v Naftali Ogola [2019] eKLR, alongside foreign jurisprudence such as Ashok Kumar Bajpai v Dr. (Smt) Ramjama Bajpai AIR 2004 ALL 107, emphasizing that major or mandatory reliefs require exceptional circumstances and should not be granted summarily. 51) Indeed, the Appellant correctly states the law on mandatory injunctions at an interlocutory stage. In Kenya Breweries Ltd & Another v Washington O. Okeyo ELCLA NO. E077 OF 2025 24 | P a g e

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[2002] 1 EA 109, the Court of Appeal adopted Halsbury's Laws of England (4th ed., Vol. 24, para 948): "A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the Court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied, or where the defendant had attempted to steal a march on the Plaintiff." 52) This principle is further fortified by the exhaustive analysis of interlocutory relief and mandatory injunctions in Kiragu v Murimi [2022] KEHC 15910 (KLR), and the classic English authority Locabail International Finance Ltd v Agroexport and Others [1986] 1 All ER 901, which establish that Courts must exercise extreme caution to avoid prejudicing the substantive merits of a dispute before trial. 53) here. That principle however from my analysis does not apply The orders of 18/06/2025 are prohibitory and preservatory in character. They restrain dealings with, and further development of, RUIRU/KIU/BLOCK 2/13898 until the suit is heard and determined. They do not transfer title to the Respondent. They do not declare her the owner. They do not order the Appellant's eviction or decree specific performance. Each of those issues remains open for trial on ELCLA NO. E077 OF 2025 25 | P a g e

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both the plaint and the Counterclaim. An order that keeps the subject matter intact pending trial does not determine the suit. It makes a meaningful trial possible. 54) As articulated in Mulla on the Code of Civil Procedure, the power of a Court to grant temporary injunctions is designed precisely to maintain the status quo and prevent the subject matter of litigation from being dissipated or altered to the detriment of the administration of justice. This is reinforced by the equitable doctrine of lis pendens, defined by the Supreme Court of India in Jayaram Mudaliar v Ayaswami AIR 1973 SC 569 (and cited with approval in Cove Investment Ltd v Johana Kiprotich Rono & 3 Others Civil Appeal (Application) E051 of 2025 [2025] KECA 1089 KLR), which describes the control a Court exercises over property involved in a pending suit to ensure that parties do not render judicial proceedings infructuous. The trial Court acted well within its discretionary mandate to preserve the res. 55) Even if the orders were read as having a mandatory element, they would fall within the third category in Kenya Breweries case. On the Respondent's evidence, the Appellant removed her building materials and began a perimeter wall while the dispute over the land was live. If proved, that would be an attempt to steal a march on the opposite party. Ground 7 fails. ELCLA NO. E077 OF 2025 26 | P a g e

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56) Having considered all the Grounds of Appeal, I find that the learned trial Magistrate applied the correct principles and did not exercise her discretion wrongly. No basis exists for this Court to interfere. The Grounds of Appeal lack merit. 57) Section 27 of the Civil Procedure Act provides that costs follow the event, and I see no reason to depart from that rule. 58) Nothing in this Judgment is a final finding on the merits of the Respondent's claim or the Appellant's Counterclaim. In particular, the questions of which resultant parcel corresponds to Plot 02, and whether the Respondent is entitled to specific performance, remain for the trial Court. 59) Accordingly, the final orders of this Court are as follows: i) The appeal is dismissed in its entirety. ii) The Ruling and orders of Hon. Noelle Kyanya (DR) delivered on 18/06/2025 in Ruiru CMC ELC No. E127 of 2024 are upheld. iii) The injunctive orders over land parcel RUIRU/KIU/BLOCK 2/13898 shall remain in force pending the hearing and determination of the suit and the Counterclaim in the trial Court. iv) The trial Court shall give the suit and the Counterclaim priority and hear and determine them expeditiously. v) The Respondent is awarded the costs of this appeal. ELCLA NO. E077 OF 2025 27 | P a g e

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vi)The Deputy Registrar shall remit a copy of this Judgment, together with the lower Court file, to the trial Court for further proceedings. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 5TH DAY OF OCTOBER 2026. ………………….. MOGENI J JUDGE In the presence of:Miss Swaka holding brief for Kirimi for the Appellant Mr. Omwenga for the Respondent Mr. Melita - Court Assistant ………………….. MOGENI J JUDGE ELCLA NO. E077 OF 2025 28 | P a g e

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