Benard Nyarangi Guto v County Government of Kisii & 3 others

1A, 1B, and 3A of the Civil Procedure Act, Cap. 21 laws of Kenya, Order 51 Rule 1 of the Civil Procedure Rules 2010, Article 40 of the Constitution, 2010. The Applicant is seeking the following orders: a. Spent b. Granted c. THAT a temporary injunction order do issue restraining the 1st, 2nd, and 3rd Defendants from taking any steps to establish the intended BLOCK 01 of NYAMBERA MODERN MARKET on the Applicant’s property L.R. No. KISII MUNICIPALITY/ BLOCK 111/358 pending the hearing and determination of this application and petition. d. THAT pending hearing and determination of this application inter partes, this court be pleased to issue a temporary conservatory order restraining, prohibiting, and stopping the Respondents and any third party jointly and severally, their agents, officers and any person acting under them from further interfering in any way whatsoever, including trespassing into, encroaching and or developing the Applicants property known as L.R. NO. KISII MUNICIPALITY/BLOCK 111/358. e. THAT a declaration to issue that the inclusion on the amended map of the Petitioner’s property by the 1st Respondent is illegal, Page 2 of 13

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irregular, unprocedural and contrary to Articles 27, 28, 40, 43, and 47 of the Constitution and is therefore null and void. f. THAT a permanent injunction restraining the Defendants and or their agents, servants, or employees, or any other person acting under their instructions, from entering into, trespassing, constructing and/or continuing with any drawing plans and subsequent construction, erecting any other structures and/or doing any acts of waste or in any way interfering with the suit property being L.R. NO. KISII MUNICPALITY/BLOCK 111/358. g. THAT the Court to make, issue and give such further, other and consequential orders, writs, and directions as it may consider just, fit and/or appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of Article 40(1) & (3) and Article 47(1) of the Constitution of Kenya, 2010 in relation to the Petitioner. h. 2. THAT the Respondents bear the costs of this application. The application is based on the grounds listed on the face of the Notice of Motion and on the Petitioner’s Affidavit sworn on 6th March 2026. The Petitioner deposes that he has a beneficial interest in property L.R. No. KISII MUNICIPALITY/BLOCK 111/358 (the “suit property”) which he purchased on 18th July 2022 in a public auction from the Bank of Africa as chargee exercising power of sale. Page 3 of 13

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3. The Petitioner deposes that the 1st Respondent intends to use the Suit Land for the construction of a market based on information received from the 1st Respondent’s contractor on site. That he shared with the Petitioner a revised site plan for the proposed market project indicating that structures on the Suit Land shall be removed to pave way for the proposed development. Further, the Petitioner states that Kisii County Governor, Hon. Simba Arati, has made public statements to the effect that the Suit Land shall be utilised for the market project. 4. The foregoing is stated to be in spite of the existence a judgement of the Court in Kisii ELC Case No. 485 of 2016 (Formerly Civil Case No. 166 of 2011) Esther Kemuma Mogaka versus the Town Clerk, Municipal Council of Kisii and the Municipal Council of Kisii, where the Court confirmed the ground location of the Suit Land, among others, and affirmed Esther Kemuma’s liberty to develop the said parcels subject to the requisite approvals. He avers that the judgment also restrained the Defendants therein from interfering with her occupation, possession, and activities on the land. 5. The Petitioner pleads that the intended use of his land for the development of Block 01 of Nyambera Modern Market is an infringement of his constitutional right to own, use, occupy, develop, and enjoy his land. Page 4 of 13

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6. The 1st Respondent replied to the application through a Replying Affidavit sworn on 12th June 2026 by Douglas Momanyi Makori. As the Court had on 16th June 2026, granted the 2nd interim order sought in the Petitioner’s application, over and above filing a response to the Petitioner’s application, the 1st Respondent also filed a Notice of Motion application dated 13th July 2026, seeking the following substantive order: THAT this Honourable Court be pleased to set aside the orders of injunction issued on 9th April 2026 restraining the 1st Applicant’s surveyors from undertaking a physical survey of the space reserved for recreational purposes/public open space for the development of Nyambera Modern Market Block 01. 7. The 1st and 2nd Respondents’ case in both the Replying Affidavit dated 12th June 2026 and the application of 13th July 2026, is that the Suit property is situated within an area originally reserved for recreational purposes/ public open space, as per Kisii Municipality’s Physical Development Plan (PDP) dated 7th August 1971, and the Municipality’s Registry Index Map. 8. Mr. Momanyi, deposes that the 1st Respondent challenges the Petitioner’s title to the Suit Land for several reasons inter alia; (i) that there is no evidence that the 1971 PDP has ever been revised such as to allow allotment of the Suit Land to the Petitioner. Page 5 of 13

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(ii) (that the letters of allotment over parcel number KISII MUNICIPALITY/ BLOCK III/358 & 359 share the same unsurveyed plot number “A”. He states that the two parcels cannot share the same unsurveyed plot number. (iii) that the reference number on the Suit Land’s allotment letter is incomplete. In addition, plan No. “TP 37/XIII” on the allotment letter, being a reference to the Part Development Plan (PDP) of the Suit Land, is stated to be incomplete, and (iv) further that there are no records of the said PDP, and neither did the Petitioner produced one. 9. Mr. Momanyi further deposes that the injunction granted by this Court is a threat to public interest because it has caused significant financial losses to taxpayers and delays in provision of essential public services. He states that these losses and delays outweigh the harm allegedly occasioned on the Petitioner. 10. In response to the 1st and 2nd Respondents’ application, the Petitioner filed a Replying Affidavit sworn on 30th July 2026. The Petitioner deposes that the 1st Respondent’s predecessor (Municipal Council of Kisii) was permanently restrained from interfering with the occupation, possession, and development of the Suit Land by the Court's decree in Kisii Civil Case No. 166 of 2011. He argues that the matters now raised by the 1st and 2nd Respondents on the procedural regularity of the Page 6 of 13

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allocation of the Suit Land to the previous proprietor are res judicata or barred by issue estoppel, questions of ownership of the Suit Land having been determined with finality in Kisii Civil Case No. 166 of 2011. SUBMISSIONS 11. Written submissions in support of the Petitioner’s application, dated 26th August 2026, were filed by the firm of Okore Otuoma & Company Advocates. In line with the three-tier test for the grant of interim injunctions established in Giella v. Cassman Brown & Co. Limited [1973] EA 358, it is submitted that the Petitioner has a prima facie case with a probability of success. The Petitioner’s Advocate submits that, since the Petitioner has demonstrated a beneficial interest in the Suit Land and that the Petitioner’s case raises a serious question to be tried, the Petitioner has a prima facie case with a probability of success. 12. Learned Counsel for the Petitioner further submits that, on account of the threat to the quiet possession of the Suit Land, the Petitioner shall suffer irreparable harm if the orders sought are not granted, and that such harm cannot be adequately compensated by way of damages. Lastly, it is submitted that the balance of convenience tilts in favour of the Petitioner. 13. The 1st and 2nd Respondents re-assert their case in the written submissions dated 9th August 2026 prepared by their County Attorney. It is submitted that the process of acquisition of the Suit Land by the Page 7 of 13

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allottee was flawed. On this account, it is submitted that the Petitioner does not have a prima facie case with a probability of success. Furthermore, it is submitted that the Petitioner did not approach the Court with clean hands as he concealed material facts in his application, leading to the grant of the interim orders of 16th June 2026. 14. On irreparable harm, the County Attorney submits that the Petitioner does not stand to suffer irreparable harm not compensable through damages as the injunction currently in place threatens public interest by causing significant financial loss to taxpayers and delay of provision of essential services to the public. On the foregoing, the Court is urged to set aside the injunction issued on 16th June 2026. ISSUES FOR DETERMINATION 15. Having carefully considered the parties’ pleadings, evidence, submissions, and the applicable law, the following are the issues for determination in this application: a. Whether or not the Petitioner has made a case for the grant of the temporary conservatory and injunctive orders sought. b. Who is to bear the costs of the Petitioner's and 1 st and 2nd Respondents’ applications. ANALYSIS AND DETERMINATION Page 8 of 13

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16. On interlocutory injunctions, Giella v. Cassman Brown & Co Ltd [1973] EA 358, as cited by the parties, remains good law. The case sets out three elements that an applicant seeking interlocutory orders must prove, to wit: a prima facie case with a probability of success; demonstration that, if the injunction sought is not granted, they will suffer irreparable harm; and, if in doubt after consideration of the first two elements, a decision on the balance of convenience. 17. Similarly, In Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR), the Court of Appeal revisited and re-affirmed the principles set out in Giella V Cassman Brown. The Court of Appeal rendered itself as follows: “26. In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a)establish his case only at a prima facie level, (b)demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. 27.These are the three pillars on which rests 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. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Page 9 of 13

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Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is 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. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.” 18. In the present application, the Petitioner has pleaded that the 1st Respondent considers the suit property public land, and plans are underway to construct a modern market on the land. The Petitioner further stated that, while he does not have a certificate of title to the Suit Land, he purchased the land in a public auction in 2022 and has instituted relevant Court proceedings seeking orders for transfer and registration of the Suit Land in his name. 19. The 1st and 2nd Respondents plead that the Suit Land is part of Kisii Municipality public land reserved in 1971 as a recreational area/ public Page 10 of 13

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open space. They state that the process of acquisition of the suit property by the Petitioner was irregular and they gave reasons for stating so. In response, the Petitioner argued that the challenges to the root of title to the are barred by res judicata and issue estoppel, as the initial allottee had sued the predecessor of the 1st Respondent in Kisii Civil Case No. 166 of 2011 and obtained orders to the effect that the defendants in the case (Municipal Council of Kisii) were restrained from interfering with the Plaintiff’s (initial allottee) occupation, possession, or activities on the Suit Land. 20. Therefore, gleaning the arguments put forth by the parties, the impression on the mind of the Court based on the foregoing is that the Petitioner has shown that he acquired an interest/right to the suit property pursuant to a sale through public auction. It is also evident from the pleadings that the 1st Respondent's actions put that right at risk of infringement. Whereas the ownership of, or root of title to, the suit property is materially disputed, the Court is disinclined to decide any substantive issue at the interlocutory stage on the basis of affidavit evidence alone. The competing claims should instead be fully ventilated at the hearing of the Petition. Hence, the Court is satisfied that the Petitioner has prima facie case with a probability of success. 21. Additionally, the applicant for an interim injunction should demonstrate that they will suffer irreparable harm. The Petitioner in his supporting Page 11 of 13

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affidavit deposed to the process of acquiring the suit property and asserted that if the orders of injunction are not given, his right under article 40 shall be violated. In his response to the Respondents’ application to discharge the orders, the Petitioner stated thus; “22. Contrary to the Applicants' contention that the existing injunctive orders threaten public interest and occasion loss to taxpayers, it is the Petitioner - and, in the wider sense, the sanctity of the land register and the finality of judicial decrees that stands to suffer irreparable harm should the Applicants be permitted to survey, re-enter upon and develop land that this Court, and its predecessor the High Court at Kisii, have already twice recognized as lawfully held private property.” 22. A perusal of the annextures filed in support of the Petitioner’s application is a memorandum of sale dated 18th July, 2022 declaring the Petitioner as the highest bidder of Kshs 10,050,000. Hence, the Petitioner’s interest and or rights in the suit property is ascertainable on the face of this document. Although he also pleaded that the County Government plans to demolish the structures on the suit property to pave way for the construction of a modern market, those structures must have been part of the land during the auction. If they were not, they can be valued before the commencement of any works. Page 12 of 13

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23. Beyond the dispossession of land and loss of income, it is clear that the 1 st Respondent intends to use the suit land for a long-term construction project. It is plausible that, if the Petitioner succeeds, the suit property will not revert to its original state for the purposes for which he intended to use it, thus showing merit in why this court should grant the conservatory orders sought. However, the Petitioner did not persuade me that the loss cannot be compensated by an award of damages since the loss herein is ascertainable. 24. If the 1st and 2nd Respondents were not government entities, I would have made an order for their giving an undertaking that they shall compensate the Petitioner in the sum of Kshs 10,050,000 as damages with interest. The Respondents are government entities and are therefore capable of paying any award the Court may issue if the petition succeeds. 25. Ultimately, the Petitioner’s prayer for conservatory orders fail on account of failure to demonstrate that the loss is irreparable. The orders sought under prayers 5-7 are for consideration in the main petition. Consequently, the temporary orders in force are hereby discharged. 26. Each party to meet their respective costs of the application. Ruling dated, signed and delivered at Kisii this 1st day of October, 2026. A. OMOLLO JUDGE Page 13 of 13

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