Mavoko Muundani Residents Association & 12 others v Kenya Commercial Bank Limited & 2 others

SOLOMON WAMBUA NGWILI ................................................... 14TH APPLICANT STELLA OMBASA ........................................................................... 15TH APPLICANT GEORGE GIHURU WAWEU ......................................................... 16TH APPLICANT CATHERINE NDIWA MWOBIA .................................................. 17TH APPLICANT PAUL CHAHIA KISIA .................................................................... 18TH APPLICANT PAUL MUKUNZU MUNYAO ........................................................ 19TH APPLICANT JOSEPH NZAU NGUNZU .............................................................. 20TH APPLICANT FRANCISCAR KASUSU KIMENDE ............................................. 21ST APPLICANT EJIDIOUS NGARI NDAMBIRI ..................................................... 22ND APPLICANT MARY KAMAA MUSYOKI ........................................................... 23RD APPLICANT PHANUEL MUTUNGA MUSYOKI .............................................. 24TH APPLICANT WYCLIFFE MUSEMBI LONZI ...................................................... 25TH APPLICANT SHEM OMBASO OGECHI ............................................................. 26TH APPLICANT SBARINA KANINI SULEIMAN ................................................... 27TH APPLICANT LILIAN N. KEESI ............................................................................ 28TH APPLICANT JOASH OGAROI OBAI ................................................................... 29TH APPLICANT RICHARD KYALO ......................................................................... 30TH APPLICANT FRANCIS MUSYOKA ..................................................................... 31ST APPLICANT PAUL NDILO ................................................................................... 32ND APPLICANT PETER WANJE MULANDA .......................................................... 33RD APPLICANT DAVID KATIE MUSEMBI .............................................................. 34TH APPLICANT SAMSON KAVILI KINYUA ........................................................... 35TH APPLICANT MUKUI GLADYS NYAMU ............................................................ 36TH APPLICANT DANIEL KIPKEMOI YATICH ....................................................... 37TH APPLICANT OYUGI DANCAN ODOYO ............................................................ 38TH APPLICANT PETER MUENDO MUTHUI ......................................................... 39TH APPLICANT PHANICE ANDISI NYANGI ......................................................... 40TH APPLICANT NJERU SAMUEL KAUMBUTHU .................................................. 41ST APPLICANT PAUL GIRISA .................................................................................. 42ND APPLICANT ANTONYNGOLWA MUSYOKI .................................................... 43RD APPLICANT SIMON KAMAU KINYUA ............................................................. 44TH APPLICANT JOYCE AKINYI OMUNE ............................................................... 45TH APPLICANT https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 2

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KATUNGE MUMO ......................................................................... 46TH APPLICANT ROSE NDUNGE ............................................................................... 47TH APPLICANT EDWIN KIMEMIA .......................................................................... 48TH APPLICANT LAWRENCE SAMUEL .................................................................... 49TH APPLICANT REGINA DUWA .............................................................................. 50TH APPLICANT YUNIA MORAA MOSE .................................................................. 51ST APPLICANT ELIZABETH MUTHONI KAMAU ............................................... 52ND APPLICANT ALFRED BARUDI ........................................................................... 53RD APPLICANT ST ANN INTERCOUNTY CATHOLIC CHURCH .................... 54TH APPLICANT JOSEPH K MBITHI ......................................................................... 55TH APPLICANT AND KENYA COMMERCIAL BANK LIMITED ................................ 1ST RESPONDENT EAST AFRICAN PORTLAND CEMENT COMPANY LIMITED .... 2ND RESPONDENT THE HON ATTORNEY GENERAL ........................................... 3RD RESPONDENT AND ZAKARIA MOHAMED LUKMAN ....................................... INTERESTED PARTY ANAB MAALIM ....................................................................... INTERESTED PARTY JELLE DUBO ABDI ................................................................. INTERESTED PARTY RULING 1. Before me are two separate applications filed by the opposing Parties herein, each seeking the exercise of my discretion to allow their respective application The first and application is dated 07/02/2025 filed by the Applicants/Petitioners and the second application is by the 1st Respondent dated 18/02/2025. I must state from the onset that the outcome of one application could effectively determine the other. The First application 2. The application dated 07/02/2025 seeks for orders that: 1. Spent 2. Spent 3. Spent 4. Spent 5. An order directing the Respondents to recognize and respect the investments and infrastructure established by the Petitioners on the Suit Land LR 8786 and 8484/654 situated https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 3

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in Mavoko Municipality in Machakos County pending the hearing and determination of this Petition. 3. 6. An order directing the 3rd Respondent to establish mechanisms and guidelines to ensure equitable access to land and prevent the exploitation of vulnerable communities in Suit Land LR 8786 and 8484/654 situated in Mavoko Municipality in Machakos County pending the hearing and determination of this petition. 7. This Honourable Court be pleased to give a mandatory injunction compelling the Respondents to engage the Petitioners on a regularization model based on reasonable terms without violating their rights through public participation pending the hearing and determination of the petition. 8. Costs be provided for. The application is supported by the supporting affidavit of KENNEDY MITAMBO MUNYAO, the 3rd Applicant sworn on 07/02/2025. The Applicants aver that: a. They have occupied and developed the Suit Land for over 15 years, during which time they have made substantial investments, including but not limited to the construction of residential dwellings, places of worship, educational institutions, and healthcare facilities. b. The 2nd Respondent, as the initial registered proprietor of the Suit Land, was fully aware of the Petitioners' occupation and development of the land and acquiesced to the same. c. Upon the transfer of the Suit Land to the 1st Respondent, the Petitioners engaged the 1st Respondent in discussions regarding the purchase of the land. d. The Petitioners, being occupants of the Suit Property, engaged the 1st and 2nd Respondents in a bid to regularize their occupation through the sale of the subject property. To this end, the Respondent convened a public meeting on 13th November 2024, intended to discuss and set terms of engagement for the regularization process. e. During the said meeting, which was attended by heavily armed administrative police, the 1st Respondent, being the beneficial owner of the property, informed the public of the general procedures expected in the regularization process, which included: i. Registration; ii. Validation iii. Survey, mapping and planning; iv. Valuation. f. At the conclusion of the meeting, no consensus was reached on how the regularization process would be undertaken, particularly due to outstanding issues emanating from a prior regularization process undertaken by the 2nd Respondent on a portion of the Suit Properties and other neighbouring properties owned by the 2nd Respondent. g. Notwithstanding the lack of consensus, the 1st Respondent proceeded to issue a notice to the occupants, informing them that the regularization process would commence on 18th November 2024, despite the Petitioners having written to the Respondents demanding clear and concise terms of engagement. h. The said notice directed the Petitioners to engage the 1st Respondent as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 4

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i. j. i. Payment of a deposit of Kshs.200,000 per plot, payable within three weeks of the start of the regularization process; ii. A directive for the Petitioners to halt all development on the Suit Property. The regularization process included the following steps: a. Submission of land occupation documents to the registration office. b. Verification and enumeration of the resident as a bona fide occupant, after which a surveyor was assigned to survey the plots. c. Completion of the survey and issuance of a plot number and plan number by KCB; Issuance of an account number for payment to KCB Bank Kenya Limited: Bank: KCB Bank Kenya Limited -Account Name: KCB Asset Sales Account. -Swift Code: KCBLKENX -Branch: Moi Avenue -Account No: 133351xxxxx ` -Reference: Purchaser Name & Registration Number k. Petitioners were required to deposit Kshs.200,000 per 40 x 80 plot and submit the deposit slip to the KCB regularization office for filing. l. The 1st Respondent failed and/or refused to issue any substantive terms of offer for the sale and acquisition of the Suit Land, including the purchase price, payment terms, or timelines. Despite this, the Petitioners were coerced to pay Kshs.200,000 per plot without clarity on the terms, with threats that failure to pay would result in the loss of their plots and any developments thereon. m. The Petitioners aver that after paying the Kshs.200,000 and submitting the deposit slips, they were required to sign a registration form containing unconscionable conditions, including: i. Payment of non-refundable registration fee of Kshs.200,000 to facilitate planning, survey, and valuation; ii. Agreement to pay for the Plots after valuation without disclosure of the valuation criteria; iii. Compliance with all terms set by KCB Bank for the regularization process; iv. Halting further development on the property until KCB Bank officially handed it over. n. The form further stated that by signing it, the occupant agreed to cooperate with KCB Bank management on the regularization of ownership, while preserving KCB Bank's rights as the beneficial owner of the land. o. Some Petitioners were informed that the plots they occupied fell within a "commercial zone" and were thus barred from registering their plots, despite holding allotment letters and having developed the plots. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 5

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p. The Respondents have arbitrarily dispossessed the current occupants of their parcels and commenced construction works, including the erection of site offices and perimeter walls, under the protection of the police. q. The actions of the Respondents have caused widespread anxiety, outcry, and confusion among the Petitioners, who have enjoyed peaceful and quiet possession of the land since 2009. r. The Petitioners have written several letters to the Respondents requesting a meeting to discuss the regularization process, including how the purchase price was determined and for the provision of valuation reports. These letters have gone unanswered, and the requested information has not been availed to date. s. The sale prices of the plots in the Suit Land as indicated in the agreement are extortive and grossly overvalued compared to prices offered by the Interested Part, East Africa Portland PLC, for regularized plots on adjacent land parcels LR 8784/653, LR 8784/144, and LR 8784/143 who are paying Kshs.750,000 per plot 50ft by 100ft and 650,000 per plot 40ft by 80ft t. The Petitioners aver that the Respondents are using the guise of regularization to deny them meaningful ownership of the land through coercion, threats and intimidation, including the fear of demolitions by selling 50 by 100 plots at 5 Million which is unaffordable by the Petitioners. u. The process undertaken by the Respondents contained unconscionable terms, which are unenforceable in law. v. The Petitioners are ready and willing to purchase the land at the prevailing market price. However, the 1st Respondent has demanded an exorbitant purchase price far beyond the financial means of the petitioners. w. Despite repeated requests, the 1st Respondent has failed to provide any information regarding how the purchase price was arrived at, including valuation reports, further exacerbating the Petitioners' concerns over the lack of transparency and fairness in the process. x. That the Respondents have started denying the Petitioners access to their respective. The Second application 4. This application dated 18/02/2025 is by the 1st Respondent and seeks for orders that: 1. Spent; 2. The Honourable Court be pleased to suspend the implementation of the ex-parte Orders issued on 10th February, 2025 pending the hearing and determination of this Application on a date to be allocated by the Court; 3. The Honourable Court be pleased to vary, discharge and/or set aside the Orders granted on 10th February, 2025; 4. Costs of the Application be provided for. 5. This second application is based upon the grounds set out in the Supporting Affidavit of Lilian Sogo and on grounds that: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 6

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a. The impugned ex-parte orders are final in nature to the extent that they order the Respondents to recognise and respect the investments of the Petitioners on the 1st Respondent's property without a hearing; b. The impugned ex parte Orders have the effect of limiting the 1st Respondent's proprietary rights in the subject property with finality contrary to Article 40 of the Constitution as read with Sections 24 and 25 of the Land Registration Act thus denying the 1st Respondent of an opportunity to be heard; c. The impugned ex-parte Orders include a structural interdict directed at the Attorney General to establish mechanisms and guidelines to ensure equitable access to land and prevent exploitation of vulnerable communities, which again is in the nature of a final order that cannot be issued ex-parte; d. In seeking the Order, the Petitioners failed to disclose to the Court the existence of a decision in rem relating to the same suit land which was issued in Machakos ELC No. 155 of 2016-East Africa Portland Cement vs Sammy Kathilu & 272 Others wherein all occupants that were not the registered proprietor and claiming through associations were determined to be trespassers. e. This Court has the jurisdiction to grant the Orders sought. f. It is in the interest of justice that the Orders sought herein are granted. The Responses to the applications 6. The 1st Respondent filed a replying affidavit sworn on 01/04/2025 by LILLIAN SOGO, Head Counsel-Litigation at KCB Bank Kenya Limited, the 1st Respondent herein in opposition to the Petitioners’ application dated 07/02/2025. 7. Similarly, the 2nd Respondent filed a replying affidavit sworn on 07/04/2025 by ROSELINE OMINDE the acting Company Secretary/ Head of Legal Department of the 2nd Respondent in opposition to the Petitioners’ application dated 07/02/2025 8. The Petitioners then filed a further affidavit through KENNEDY MITAMBO MUNYAO sworn on 19/04/2025 in reply to the affidavits sworn on 01/04/2025 and 07/04/2025 by the 1st and 2nd Respondents. 9. The Interested Parties filed a replying affidavit sworn in April 2025 but without a date by ZAKARIA LUKMAN to the 1st Respondent’s application dated 18/02/2025. 10. The 3rd Respondent, the Honourable Attorney General entered appearance and filed a Memorandum of Appearance on 19/02/2025 but did not file any response or pleadings in this matter. 11. The applications were canvassed by way of written submissions. The Petitioner’s submissions are dated 28/04/2025, the 1st Respondent’s submissions are dated 14/04/2025 while the Interested Parties’ submissions are dated 12/5/2025. 12. The 2nd Respondent sought to associate themselves with the 1st Respondent’s submissions. 13. The 1st, 39th ,56th PETITIONERS (MAVOKO MUUNDANI RESIDENTS ASSOCIATION, DAVID MUSAU MUTISO & JOSEPH K. MBITHI RESPECTIVELY) withdraw the whole of their claim in the Petition as against the Respondents with no orders as to costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 7

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Analysis 14. I have considered the two applications as set out hereinabove, the Replying Affidavits thereof, the Grounds of Opposition and the Parties’ rival submissions. It my considered view that the determination of the 1st Respondent’s application dated 18/02/2025 which seeks to have the orders issued pursuant to the Petitioners’ application varied, discharged and/or set aside will automatically determine the Petitioners’ application dated 07/02/2025 as to whether the Petitioners are entitled to orders of interim injunction in respect to the suit properties pending the outcome of the Petition. 15. The 1st Respondent in its submissions contends that on 10th February, 2025, this Honourable Court granted prayers 2 and 3 of the Petitioners’ application dated 7th February, 2025 pending the inter-partes directions on the application. The Orders were extended on 4th March, 2025 and 20th March, 2025. 16. Prayers 2 and 3 of the application reads as follows: “ 2. An Order directing the Respondents to recognise and respect the investments and infrastructure established by the Petitioners on the suit land LR 8786 and 8484/654 situated in Mavoko Municipality in Machakos County pending the hearing and determination of this application. 3. An Order directing the 3rd Respondent to establish mechanisms and guidelines to ensure equitable access to land and prevent the exploitation of vulnerable communities in suit land LR 8786 and 8484/654 situated in Mavoko Municipality in Machakos County pending the hearing and determination of this application.” 17. That the nature of the Orders coupled with the failure of the Petitioners to disclose material facts prompted the 1st Respondent to file application dated 18th February, 2025 wherein it seeks that this Honourable Court be pleased to vary, discharge and/or set aside the Orders granted on 10th February, 2025; 18. The 1st Respondent submitted that as at the date of filing their submissions, the 1st Respondent had not been served with any responses to its application. 19. The 1st Respondent submits that the sole issue for determination is whether this Honourable Court should vary, discharge and/or set aside the Orders granted on 10th February, 2025. 20. It is submitted that this Honourable Court’s authority to vary, discharge and/or set aside orders is anchored in Rule 25 of the Mutunga Rules. Rule 25 reads as follows: “ An order issued under Rule 22 may be discharged, varied or set aside by the Court either on its own motion or on application by a party dissatisfied with the order.” 21. That this authority is unfettered and discretionary in nature and therefore is to be exercised when presented with just reason to do so. This position was reiterated in the case of Northwest Capital Apartments Limited v Ohuru [2024] KEELC 3956 (KLR) wherein the Court held as follows: “ It means this court has discretionary powers to discharge, vary or set aside its own orders either on its own motion (“Suo Moto”) or on an application by a party…. From the stated provisions, it is clear that they are discretionary in nature. Thus, the unfettered discretion must be exercised judiciously, not capriciously and reasonably.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 8

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22. The 1st Respondent submits that in the instant matter, the orders are final in nature to the extent that they order: a. the Respondents to “recognize and respect the investments and infrastructure established by the Petitioners on the suit land LR 8786 and 8484/654”; and b. the 3rd Respondent “to establish mechanisms and guidelines to ensure equitable access to land and prevent the exploitation of vulnerable communities in suit land LR 8786 and 8484/654.” 23. The 1st Respondent submits that the prayers ought to be granted only after allowing the Respondents an opportunity to be heard and not at the ex-parte stage. This would enable the court to determine the merits of the Petition as against the responses filed by the Respondents. This is re-affirmed by the fact that the aforementioned prayers are subject to the Petition as seen with prayers f and g of the Petition. 24. The 1st Respondent relied on the decision in Waguta v Equity Bank Limited & Another [2025] KEHC 3368 (KLR) wherein the Court opined as follows: “ By seeking the same reliefs at this interlocutory stage, the applicant was inviting this court to make final orders which would have the effect of prematurely disposing of the suit at this stage without having heard both parties on the merits or otherwise of the suit.” 25. They also relied on the Court of Appeal decision in Kenya Deposit Insurance Corporation v Richard and David Limited & Another, civil appeal 66 of 2016, [2015] KECA 4 wherein the Bench held as follows: “ It is in our jurisprudence that a Court will not at a preliminary stage determine with finality contested issues in litigation……Excepting where there are special circumstances, it is wrong for a Judge to grant at an interlocutory stage of proceedings final orders, thus disposing of the suit before parties are heard. The right to be heard is fundamental and only in extremely rare circumstances will a court of law issue orders the elect of which is to determine the suit with finality.” 26. The 1st Respondent further cited the case of Rift Cars Limited v Cheruiyot & 2 others (Civil Appeal E012 of 2023) [2023] KEHC 24457 (KLR) (16 October 2023) (Ruling), where the Court added to Kenya’s jurisprudence by opining that: “ There was a slip up by this court when it issued an interim order which however had been crafted by the Applicant as a final order since the same was the subject of the Applicant’s appeal. The order as granted was final in nature and had the effect of determining the Appeal without hearing the said Appeal. Clearly, an interim order could not at the same time be a final order.” 27. The position was reiterated in Sameja v Sal Tree Hotel Limited [2024] KEHC 14040 (KLR) wherein the Court held: “ Making a final determination at an interlocutory stage is contrary to the settled principle that a court, at an interlocutory stage, is not expected to make a final determination of the issues that will be discussed at the trial.” 28. It was submitted that noting that the orders granted by this court are subject to the Petition, they are final in nature and granted without offering the Respondents an opportunity to substantially respond https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 9

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to the same. It is on this basis that the 1st Respondent looks to this Honourable Court to discharge, vary and/or set aside the Orders of 10th February, 2025. 29. Further, the 1st Respondent submits that the Orders, as is, limit the 1st Respondent’s proprietary rights in the suit property contrary to Article 40 of the Constitution as read with Sections 24 and 25 of the Land Registration Act without hearing the 1st Respondent. 30. This is because the Orders determine that the Petitioners have a right in the 1st Respondent’s land warranting recognition and respect from the 1st Respondent. As exhibited by annexure KCB-1 to the application dated 18th February, 2025, the 1st Respondent is the sole proprietor of the suit land. The Petitioners on the other hand, have no legally ascertainable right in the suit land. 31. It was submitted that Article 40 of the Constitution dictates and provides for the protection of the right to property. In realizing Article 40 of the Constitution, Parliament enacted Sections 24 and 25 of the Land Registration Act which provide as follows: “ 24. Interest conferred by registration The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. 25. Rights of a proprietor The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever.” 32. That the Constitutional and statutory provisions affirm the rights of the 1st Respondent as the registered proprietor of the suit property. These rights, as provided for by Section 26 of the Land Registration Act, may only be limited on the ground of fraud or misrepresentation to which the proprietor is proved to be a party where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 33. This court was invited to note that none of these is argued, let alone raised in the Petition. It is thus the 1st Respondent’s submission that on this basis alone, the orders ought not to have been granted for they limited the 1st Respondent’s proprietary rights without a hearing. 34. Reliance was placed on Justice Ogolla’s decision in Mohansons (Kenya) Limited v Registrar of Titles & 2 others [2017] KEELC 2730 (KLR) wherein the Court held as follows: “ There is public interest in the observance of the Rule of Law principle of Article 10 of the Constitution. The law must keep its promise to the registered proprietor that his interest in land property will be protected unless it has been proved to have been obtained through fraud or misrepresentation to which he was a party or the title document has been acquired illegally, unprocedurally or through a corrupt scheme. This not having been shown and determined in this suit, the petitioner is entitled to protection of the law.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 10

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35. That in Mutua & 2 others (Suing as the Officials of Aimi Ma Lukenya Society) v East Africa Portland Cement Company Ltd & 5 others (Environment & Land Case 7 of 2023) [2023] KEELC 20837 (KLR) (19 October 2023) (Ruling), the Court was of similar mind and held, “ This is because Article 40 of the Constitution of Kenya 2010 protects the right to acquire and own property and Sections 24 and 25 of the Land Registration Act 2012 provide for absolute ownership as an interest conferred by registration, and the rights appurtenant to registration respectively, which means that an owner of property ought not be limited in the enjoyment of their property without a clear lawful and justifiable basis. 56. An injunction limits enjoyment of proprietary rights until those rights are ultimately clarified in the judgment and decree; and therefore, the court is obligated to ensure that any limitation placed on a person’s title pass the legal threshold provided in law.” 36. The 1st Respondent urged this court to exercise similar mind and protect the rule of law in preserving the constitutionally and statutorily mandated rights of the 1st Respondent to set aside, vary and discharge the Orders issued that limited the 1st Respondent’s rights in the property without hearing it. 37. Finally, the 1st Respondent submits that the Petitioners duped this court by deliberately failing to disclose material facts that would have substantially have had a bearing on the issuance of the impugned Orders. That the Petitioners failed to disclose the in rem judgment relating to the suit property in East African Portland Cement Co Ltd & 6 others v Kathilu & 322 others; Kenya National Organization for Victims of Ethnic Clashes & Others (Interested Party) [2024] KEELC 7095 (KLR). In which judgment, Justice Ochieng determined the rights of parties such as the Petitioners who had set up establishments on the property as follows: “ Based on my analysis above, I find that the Defendants including Interested Parties have indeed trespassed on the Plaintiff’s land by building houses, school and churches thereon knowing fully well the said suit properties did not belong to them.” 38. That as a consequence of the above finding, the Court ordered as follows: “ A declaration be and is hereby issued that the Plaintiff is entitled to exclusive and unhindered right of possession and occupation of parcels of land known as LR No. 12948/17, LR No. 10425, LR No. 8784, LR No. 7815/1 and LR No. 8786.” 39. The 1st Respondent position is that the Petitioners, therefore, have no recognizable right in the suit properties as the same was determined by a Court of competent jurisdiction. The failure by the Petitioners to disclose the judgment is material and warrants discharging of the ex-parte Orders issued on 10th March, 2025. 40. This position was upheld in the decision in Bahadurali Ebrahim Shamji Vs Al Noor Jamal & 2 Others CA 210 of 1997 as cited with the approval of the Court in Delmonte Kenya Limited v Mishack Kibe Muiruri & 4 others [2020] KEELC 251 (KLR) where it held that; “ It is perfectly well settled that a person who makes an ex parte application to the Court that is to say, in the absence of the person who will be affected by that which the Court is asked to do - is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 11

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then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained. That is perfectly plain and requires no authority to justify it…. and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement” 41. Similarly, the Court in D. Bank Mellat –V- Nikpour [1985] FSR 87, 92 as relied upon in Okiya Omtatah Okoiti v Joseph Kinyua & 2 others [2018] KEELRC 1750 (KLR) underscored the consequences of non –disclosure of material facts at interlocutory stage in the following words; “ The principle that no injunction obtained ex parte shall stand if it has been obtained in circumstances which there was a breach of the duty to make the fullest and frankest disclosure is of great antiquity. Indeed, it is so well enshrined in the law that it is difficult to find authority for the proposition; we all know, it is trite law” 42. From the foregoing, it is the 1st Respondent’s submission that had the Honourable Court had sight and knowledge of the judgment wherein the Court determined the rights of the parties with an interest in the suit property, this Court would not have issued the impugned Orders. 43. The 1st Respondent submits that having determined that the orders of 10th February, 2025 are final in nature, limit the 1st Respondent’s proprietary rights in the suit property and that they were obtained through material disclosure, they beseech this Court to find merit in the 1st Respondent’s application and vary, discharge and/or set aside the Orders granted on 10th February, 2025. 44. In submitting on the Petitioners’ application dated 07/02/2025, the 1st Respondent referred to its filed Replying Affidavit sworn on 1st April, 2025 wherein it affirmed that the Petitioners were not entitled to the prayers sought. The 1st Respondent affirmed that the prayers sought by the Petitioners are in the nature of a mandatory injunction which may only be issued at an interlocutory stage wherein a party establishes special circumstances warranting the grant of such orders and where it is clear and obvious that the party against whom the injunction is sought is at fault. 45. The 1st Respondent cited the decision in Court of Appeal in Kenya Breweries Ltd & Another -vsWashington Okeyo [2002] eKLR wherein it held as follows: “ A mandatory injunction ought not to be granted, on an interlocutory application in the absence of special circumstances, and 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 respondent had attempted to steal a match on the applicant.” 46. The 1st Respondent submitted on whether the Petitioners have established the threshold for grant of the mandatory injunction sought. 47. The 1st Respondent argued that as determined by the Court of Appeal in Kenya Breweries Ltd & Another -vs- Washington Okeyo (Supra), a mandatory injunction may only be granted in special circumstances shown over and above the establishment of a prima facie case and even then, only in clear cases where the court thinks that the matter ought to be decided at once. 48. That in the instant matter, the Petitioners have not only failed to establish a prima facie case against the Respondents but also failed to exhibit any special circumstances warranting the grant of the mandatory injunctions sought. The 1st Respondent’s submission is based on the following reasons: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 12

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a. Pursuant to the in rem judgment in Machakos ELC No. 155 of 2016-East Africa Portland Cement vs Sammy Kathilu & 272 Others, any and all persons in occupation of any portion of the properties such as the Petitioners are trespassers. Further, only the 1st Respondent as the registered proprietor is entitled to exclusive and unhindered right of possession and occupation of the suit property. The Petitioners, therefore, as per the judgment have no ascertainable rights in the land and as such cannot make a claim that pertains to the possession and occupation of the suit property; b. The 1st Respondent as the registered proprietor of the suit land by virtue of Article 40 of the Constitution as read with Sections 24 and 25 of the Land Registration Act enjoys the indefeasible proprietary right to dispose of its properties as it so pleases; c. As confirmed by the Petitioners in their Supporting Affidavit, the 1st Respondent involved the occupants of the suit property, the Petitioners inclusive, and advised them on the particulars of the regularisation process; d. The Petitioners have no legal and/or proprietary rights in the suit properties and therefore their consensus as to the terms of the regularisation process is not anchored in law; e. The offer for sale by the 2nd Respondent of its property has no bearing on the offer for sale by the 1st Respondent of its property noting that the 2 properties are distinct. f. The Petitioners were in no way coerced to pay Kshs.200,000 without clarity of applicable terms to the regularisation. As confirmed by the Petitioners in Paragraph 15 of their Supporting Affidavit, the Petitioners were aware what the terms of regularization were; g. The Petitioners were not barred from registering plots which were determined to fall in a commercial zone as the terms of regularisation adopted by the 1st Respondent applied across the entire suit property. 49. It is therefore the 1st Respondent’s submission that not a single iota of evidence has been placed before this Honourable Court exhibiting a prima facie case in the form of the violation of any right accruing to the Petitioners to warrant the grant of the mandatory injunctions. 50. Instead, the Petitioners seek to bypass the in rem judgment in Machakos ELC No. 155 of 2016 East Africa Portland Cement vs Sammy Kathilu & 272 Others that determined the rights of all the occupants of the suit property and confirmed them to be trespassers sanctioning their eviction. 51. That the Petitioners further seek this Honourable Court to act ultra vires to determine the price at which a private registered proprietor duly protected by the Constitution and land laws ought to sell its property. That this, cannot stand. The 1st Respondent is guided by the decision in Nyachongi & 4 Others v Nyachongi & 2 Others [2024] KEELC 3983 (KLR) wherein the Court determined: “ In our case, the appellant was the registered proprietor of the land parcel No.1622. It was common ground that this was land that was purchased by him. Nothing barred him from dealing with it as he desired. He was free to sell the whole of the land and even waste its proceeds if that is what he wished….. It was not for the trial court to now trash the wisdom of the absolute proprietor in disposing his free property and substitute it for what the court thought was a fair and equitable distribution….. The court could not implant its own tenets of fairness and equity to deny the absolute proprietor his freedom to dispose his property https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 13

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as he preferred. There is no power given to any court to order a person to gift or deal with his free property in a particular way.” 52. It is submitted that the Petitioners exhibit no rights in the suit properties or any special circumstances. That it has been aptly controverted by the 1st Respondent as seen in the Replying Affidavit and its submissions and invite this court to disallow the Petitioners’ prayers. Reliance is placed on the Court’s decision in Embu County Government v University of Embu (Environment & Land Case 4 of 2021) [2022] KEELC 15529 (KLR) (6 December 2022) (Ruling) wherein the Court held as follows: “ The law applicable shows clearly that a mandatory injunction is only sparingly issued and the court is required to satisfy itself that the case before it is clear, straightforward, even incontrovertible. That is not the kind of case I have before me. I am therefore not persuaded that I should grant an order of mandatory injunction.” 53. Similar position was held in Mwangi & 107 Others v Karanja & Another [2022] KEELC 2286 (KLR) wherein the Court determined as follows: “ From the foregoing it is my considered view that the prayer sought by the 1st plaintiff for mandatory injunction should not be granted as the granting of such mandatory injunction should only be on the clearest of cases. The Applicants’ case is not as clear and the explanations given cannot in any way be done through affidavit evidence but rather the same should be canvassed during the main hearing.” 54. In conclusion, the 1st Respondent beseeched this Court to safeguard the 1st Respondent’s Constitutional and Statutory rights by finding merit in the 1st Respondent’s application and vary, discharge and/or set aside the Orders granted on 10th February, 2025 to dismiss the Petitioner’s application dated 7th February, 2025. 55. On the other hand, the Petitioners in their submissions reiterated their averments as per their grounds to the application and Further Affidavit and contended that the 1st Respondent failed and/or refused to issue any substantive terms of offer for the sale and acquisition of the Suit Land, including the purchase price, payment terms, or timelines. Despite this, the Petitioners were coerced to pay Ksh.200,000 per plot without clarity on the terms, with threats that failure to pay would result in the loss of their plots and any developments thereon. 56. The Petitioners aver that after paying the Ksh.200,000 and submitting the deposit slips, they were required to sign a registration form containing unconscionable conditions, including: 57. a. Payment of non-refundable registration fee of Kshs.200,000 to facilitate planning, survey, and valuation; b. Agreement to pay for the Plots after valuation without disclosure of the valuation criteria; c. Compliance with all terms set by KCB Bank for the regularization process; d. Halting further development on the property until KCB Bank officially handed it over; The Petitioners submit that the Form further stated that by signing it, the occupant agreed to cooperate with KCB Bank management on the regularization of ownership, while preserving KCB Bank’s rights as the beneficial owner of the land. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 14

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58. That some Petitioners were informed that the plots they occupied fell within a “commercial zone” and were thus barred from registering their plots, despite holding allotment letters and having developed the plots. 59. It was submitted that the Respondents have arbitrarily dispossessed the current occupants of their parcels and commenced construction works, including the erection of site offices and perimeter walls, under the protection of the police. 60. That the actions of the Respondents have caused widespread anxiety, outcry, and confusion among the Petitioners, who have enjoyed peaceful and quiet possession of the land since 2009. 61. The Petitioners stated that they had written several letters to the Respondents requesting a meeting to discuss the regularization process, including how the purchase price was determined and for the provision of valuation reports. These letters have gone unanswered, and the requested information has not been availed to date. 62. That the sale prices of the plots in the Suit Land as indicated in the agreements are extortive and grossly overvalued compared to prices offered by the Interested Part, East Africa Portland PLC, for regularized plots on adjacent land parcels LR 8784/653, LR 8784/144, and LR 8784/143 who are paying Kshs.750,000 per plot of 50ft by 100ft and Kshs.650,000 per plot of 40ft by 80ft. 63. The Petitioners aver that the Respondents are using the guise of regularization to deny them meaningful ownership of the land through coercion, threats and intimidation, including the fear of demolitions by selling 50 by 100 plots at Five Million (Kshs.5,000,000) which is unaffordable by the Petitioners. 64. The Petitioners contend that the process undertaken by the Respondents contained unconscionable terms, which are unenforceable in law. The Petitioners are ready and willing to purchase the land at the prevailing market price. However, the 1st Respondent has demanded an exorbitant purchase price far beyond the financial means of the Petitioners. 65. That despite repeated requests, the 1st Respondent has failed to provide any information regarding how the purchase price was arrived at, including valuation reports, further exacerbating the Petitioners’ concerns over the lack of transparency and fairness in the process. 66. They aver that the Respondents have started denying the Petitioners access to their respective developments in the suit properties and there is need for an order of access. 67. That the Petitioners claim under the Constitution of Kenya that it is the State’s obligation and the 2nd /3rd Respondent’s duty to safeguard their interests as envisioned under Article 43(b) of the Kenyan Constitution; as the same is an entitlement guaranteed by the Constitution under the Bill of rights, however the 2nd and 3rd Respondent have neglected, or failed in its responsibility to effectuate these rights. 68. That the Petitioners herein contend that they have the following constitutional rights over and in relation to the said property: a. The Petitioners/Interested parties have a legally protectable right to housing over the land known as Land Reference No. 8786 and LR No. 8784 b. The Petitioners/Interested parties have a right to housing over the Respondent’s land/Public land by virtue of a long period of occupation by the Petitioners who have established homes and raised families on the Land Reference No. 8786 and LR No. 8784 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 15

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c. the Petitioners/Interested parties their families have a right to settlement of any alternative land by the 2nd and 3rd Respondent, in the event of any eviction by the 1st Respondent. 69. That further to the above the Petitioners maintain that the right to housing accrues to every individual or family, by virtue of them being a citizen of this Country and is an entitlement guaranteed by the Constitution under the Bill of rights which shall stand violated by the Respondents if this Court doesn’t intervene. 70. That the Petitioners have legitimate expectation to own and occupy the suit property as stated in paragraphs 11 to 15 of the 1st Respondents replying affidavit sworn on 1/4/2025. 71. That the 1st Respondent’s tone of deeming the Petitioners/Interested parties as trespassers and its intended act to evict them or their families with the full knowledge/ fact that our forceful eviction from their homes will result in irreparable damages/losses is quite shocking and disheartening as it amounts to violation of our rights of access to adequate housing and right to dignity over the suit property. 72. The Petitioner rely on the case of MITU-BELL WELFARE SOCIETY V ATTORNEY GENERAL & 2 OTHERS [2013] EKLR the Petitioners herein equally have the right to adequate housing on the 1st Respondent’s property/public land to avert contravention of Articles ,40, 43, 47 and 50 of the Constitution. 73. That the Petitioners stated that even though their access to the property was a negative obligation placed upon the state, 2nd and 3rd Respondents and all other government entities/ entities such as the 1st Respondent, this Honourable Court ought to desist from preventing or impairing the Petitioners’/ Interested Parties’ and/or their families’ rights of access to adequate housing currently enjoyed on the 1st Respondent’s land/public land. 74. That since the 1st Respondent have clearly acknowledged that the Petitioners/interested parties are trespassers who have set up structures on their land, theirs/families’ right to housing as enshrined in the constitution under article 43 of the constitution, should be ensured to all persons herein irrespective of their income or access to economic resources to purchase the land at current commercial rates as alluded by the 1st Respondent. 75. The Petitioners/Interested Parties and/or their families contend that they have an occupier’s Right to Human Dignity which includes housing with basic human living conditions over the land as eluded in Daniels v Scribante and Another at The Constitutional Court of South Africa. 76. The Petitioners submit that it is the 1st Respondent’s argument that the Petitioners/Applicants have not met the guiding principles governing grant of injunctive orders. The 2nd Respondent’s case is that it is a non-suited party to this suit however it is our contention that the Applicants/ Petitioners application dated 7/2/2025 is about the commercial aspect of the 1st Respondent’s sale to the Petitioners/general public and the violation of rights and or dehumanization of the Applicants/ Petitioners access rights to the suit property coupled with the brutal force deployed by the 1st Respondent to evict the Petitioners/Applicants at the instance of various state agencies (as depicted by the supporting affidavit filed by the application dated 19/2/2025), and ultimately halt the Petitioners/ Applicants from undertaking any developments/ to vacate the property despite them being residents of the suit property before their purported registration of title. 77. The Petitioners submit that the judgement issued in Machakos ELC 155/2016 does not bar parties from suing the 1st Respondent to the extent of human rights violation and/or the sale of the Suit Land to the Petitioners/General public, at prices that are judicially unwise, economically unwise and grossly https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 16

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exorbitant, exceeding being three times the prevailing market value of such property, and which will make it unaffordable for the Petitioners, thereby violating their constitutional rights to own property. 78. Further to the above, they submit that destruction as shown by the affidavit filed in support of the Application dated 19/2/2025, on the suit property as result of the forceful intended eviction by the 1st Respondent against some of the Petitioners and their family is heart wrenching and violates the Petitioners’ right under Article 40, 43 and Article 62(1)f as read with Article 62(4) of the Constitution of Kenya. 79. The Petitioners urge this court to stand in for the gap left by the Respondents to demonstrate that this country is under the rule of law and not a police state where citizens cannot be reached with humanitarian help. They further submit that Kenya is a signatory to the Rome Statute and that what is happening to the Petitioners and Interested parties facing forceful eviction is a crime against humanity. The Petitioners again rely on the Supreme Court decision in the case of MITU-BELL case (Supra) and argue t that the right to housing over public land/ land owned by the 1st and 2nd Respondent crystallizes upon long periods of occupation as stated in the pleadings and that this right springs from the principle of equitable access to land under Article 60 and article 62 of the Constitution of Kenya. 80. The Petitioners submit 1st Respondent deem that the Petitioners/Applicants/Interested parties are trespassers and thus where their imminent eviction/ is looming, the same is in the public interest, as evictees such as the Petitioners/Applicants herein have the right to seek redress and that if the suit property belongs to the 1st and/or 2nd Respondents, the law does not allow them to just evict the residents because even where the court on full trial will find that the title is theirs, they must comply with the law as the 3rd Respondent who represents the Government has failed to provide housing to the Applicants/Petitioners/ interested parties/their families and its office must protect the dignity of Applicants/Petitioners. 81. It is the Petitioner’s submission that this court finds that the Applicants/Petitioners have met the prima facie threshold, therefore this court should consider that the damage that will be suffered would be irreparable. Further, that the balance of convenience tilts in favour of the Petitioners, their families and/or residents on the suit property and they rely on the case of NATIONAL OF KENYA LTD & 2 OTHERS V. SAM -CON LTD [2003] eKLR. 82. In conclusion, the Petitioners submitted that as was held in the case of MITU-BELL case (Supra) they urge this court that an injunction should issue to the Petitioners/Applicants and interested parties, as they are entitled to a right to housing in line with Article 43 of the Constitution of Kenya, because the Petitioners/Applicants herein do not claim ownership of the suit property even when they try and regularize their purchases with the 1st Respondent. 83. Further relying on the case of DANIELS V SCRIBANTE AND ANOTHER at The Constitutional Court of South Africa, which established An Occupier’s Right to Human Dignity to Include Housing with Basic Human Living Conditions on a private citizen’s land and they elaborated the Relevance of the South African Case to the Kenyan Situation as below: 84. That the Constitution of Kenya, 2010 provides that every person has inherent dignity and the right to have that dignity respected and protected in Article 28. It also provides for protection of right to property in Article 40 and more so sub-article (2) states that Parliament shall not enact a law that permits the State or any person— (a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; (b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds of discrimination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 17

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85. Further, it is the Petitioners’ submissions that Article 43 on economic and social rights provide that every person has the right to accessible and adequate housing, and to reasonable standards of sanitation. The Land Act No. 6 of 2012 under section 65 (1) (d) provides that if any dwelling house, fiat, or room is leased, that the house, fiat or room should be fit for human habitation at the commencement of the lease and shall be kept fit for human habitation during the lease. 86. The Petitioners submitted that the South African case is an important precedent because it brings out to light the strains of the relationship between land owners and occupiers with insecure tenure such as the Applicants/Petitioners/ Interested Parties herein. 87. The Petitioners’/Applicants’ Rights of occupiers ought to always be respected by land owners and managers such as the Respondents herein as it clearly, spells out that everyone, including people who have insecure tenures, trespassers and homeless persons, are entitled to the right to human dignity in their housing which has to have basic living conditions that are fit for human habitation such as in this case pending before Court. 88. It is clear that the Applicants/Petitioners have dwelled on the property for over 15 years i.e. from 2010 and from the evidence tendered by the 1st Respondent it shows that it was after institution of Milimani High Court Miscellaneous Application No, 1322 of 2020, that on or about the 5/3/2021 the 1st Respondent were granted leave to purchase the property as noted by entry 15 of the 2nd Respondent’s title deed and that a transfer was noted as entry 16 on 5/3/2004, which is very suspect, null and or illegal. 89. They submitted that under the Kenyan Constitution, public land under Article 60 is defined as land that is not private or community land, and any land declared as such by an Act of Parliament such as the subject matter herein and Public Land is held by the National Land Commission in trust for the people of Kenya. This includes land held by the government for public purposes, as well as specific categories like unalienated government land, land occupied by state organs, land transferred to the state, and natural resources like minerals and forests. 90. They further submitted that Under Article 62(1)(f) of the Kenyan Constitution it defines public land as "all minerals and mineral oils as defined by law." such as the one originally held by the 2nd Respondent pursuant to the grant issued to them by the Government but the same was sold in clear disregard of Article 62(3) which states that public land classified under Sections (f) to (m) of the first paragraph of the article 62 shall vest in and be held by the national government in trust for the people of Kenya or in line with Article 62(4) of which clarifies that public land "shall vest in and be held by the National Government in trust for the people of Kenya, a party whom didn’t have any input in regards to the sale as alluded by the 1st Respondent in Milimani High Court Miscellaneous Application No, 1322 of 2020. 91. The Respondent submitted that from the above the dispute as presented by the Petitioners/Applicants is anchored on Notice of Motion dated 7/2/2025 and from the evidence adduced on record by parties herein this Court should be persuaded that the Petitioners/Applicants have placed enough material before this Honourable Court to limit the enjoyment of proprietary rights by the 1st Respondent who have shown that they are the registered proprietors of the suit property and knew very well that the Petitioners were on the property, however their registration is subject to challenge under constitutional mechanisms discussed above and in the premises, they prayed that this Court finds and hold that the Applicants/Petitioners have demonstrated a prima facie case to warrant grant of conservatory orders/ temporary injunction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 18

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92. The Interested Parties’ submissions are in support of the Petitioners’ application dated 07/02/2025. They submitted that they are residents and community members who, jointly with the Petitioners, have been in actual, continuous, and open occupation of L. R. Numbers 8786 and 8784/654 Mavoko ("the suit properties") for over 15 years. During this period, they have made substantial investments including but not limited to residential dwellings, religious institutions, schools, healthcare facilities, and business establishments. 93. The Interested Parties submitted that their occupation and development of the suit land have not only transformed it into a thriving community hub but have also raised legitimate expectations of tenure security, particularly in view of the Respondent's earlier public assurances that "genuine occupants" would be given first priority in the regularization programme. 94. The Interested Parties submitted on three issues as follows: 95. 1. Whether the Interested Parties have acquired a legitimate expectation of recognition and engagement by the 1st Respondent. 2. Whether the 1st Respondent's actions and inactions amount to a violation of the constitutional rights of the Interested Parties. 3. Whether the orders sought are merited in the circumstances. As to whether the Interested Parties have acquired a legitimate expectation of recognition and engagement by the 1st Respondent, it was submitted that the doctrine of legitimate expectation, rooted in administrative law, protects citizens from arbitrary departures from established practices or assurances. The Respondent's public statements and conduct including prior recognition of the occupants and promises of regularization created a legitimate expectation that the Interested Parties would be prioritized in the sale and formalization of land ownership. Reliance was placed on the case of Republic v Kenya Revenue Authority Ex parte Shake Distributors Ltd [2012] eKLR, where the Court held that: “ A legitimate expectation arises when a public body induces in a person a belief or expectation that it will act or refrain from acting in a particular way.” 96. The Interested Parties submitted that they relied on the 1st Respondent's conduct to continue developing the land. It is therefore unjust and unconstitutional for the 1st Respondent to unilaterally change its stance and deny them the opportunity to formalize their occupation. 97. On whether the 1st Respondent's actions and inactions amount to a violation of the constitutional rights of the Interested Parties, the Interested Parties cited Article 40 of the Constitution on the Right to Property and averred that they have developed the land for decades. Article 40 of the Constitution protects every person from arbitrary deprivation of property. While they may not have legal title, their long-term occupation and substantial investment confer upon them a beneficial interest worthy of constitutional protection. Reliance was placed on the case of Isaac Gathungu Wanjohi & Another v Attorney General & 6 Others [2012] eKLR, where the court held: “ A person who has invested and developed land in good faith ought not to be dispossessed arbitrarily without due process." 98. The Interested Parties also cited Article 27 of the Constitution on the Right to Equality and Freedom from Discrimination and submitted that the 1st Respondent's discriminatory pricing and opaque https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 19

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regularization process have created unjust distinctions between similarly placed occupants. The Constitution guarantees equal treatment under the law. 99. The Interested Parties further cited Article 43 of the Constitution on Economic and Social Rights and submitted that eviction or threat thereof without alternatives or compensation undermines the socio-economic rights of the Interested Parties, especially housing, education, and health, which are constitutionally protected. 100. They also cited Article 47 of the Constitution on the Right to Fair Administrative Action and submitted that the 1st Respondent's refusal to engage or provide clear mechanisms for regularization constitutes administrative injustice. It violates Article 47, which demands that administrative actions be lawful, reasonable, and procedurally fair. 101. As to whether the orders sought are merited and or whether there is need for judicial intervention, the Interested Parties submitted that given the looming threat of dispossession and sale to third parties without compensation or fair consultation, the Court is called upon to protect the public interest and uphold constitutionalism. Reference was made to the MITU-BELL Case (supra) in which the Supreme Court reiterated the need to protect informal settlers from arbitrary eviction and stated that the State has a positive obligation to provide legal protection and facilitation of housing rights, including informal settlements. 102. Similarly, the Interested Parties relied on the case of in Satrose Ayuma & others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme [2013] eKLR, the court held that forced evictions without alternative arrangements or compensation violate the Constitution. 103. The Interested Parties prayed that the application dated 07/02/2025 be allowed and the Respondent be directed to formally recognize and respect the rights and investments on the suit lands and to further direct the Respondents to establish a fair and transparent mechanism for equitable access and sale of the suit plots to the genuine occupants and to compel the Respondents to engage the Petitioners and Interested Parties in developing a mutually agreeable regularization model. Determination 104. It is not in dispute that the 2nd Respondent is the proprietor of the suit properties. It is also not in dispute that this issue was determined vide a judgement of Honourable Lady Justice C. Ochieng in Machakos ELC case No. 155 of 2016 between East Africa Portland Cement vs Sammy Kathilu & 272 Others wherein all occupants that were not the registered proprietors and claiming through Associations were determined to be trespassers. I have had a chance to read the said judgement dated 29/10/2024 in which Lady Justice Ochieng found as follows; a. A declaration be and is hereby issued that the Plaintiff is entitled to exclusive and unhindered right of possession and occupation of the parcels of land known as LR No. 12948/17 (I.R 39448/1), LR No. 10425 (I.R 17839), LR No. 8784 (1.R 75467), LR No. 7815/1, and LR No. 8786. (‘Suit properties’) b. A declaration be and is hereby issued that the Defendants whether by themselves or their servants or agents and/or otherwise howsoever are illegally in occupation of the suit properties and are accordingly trespassers on the same. c. A declaration be and is hereby issued that the Defendants whether by themselves or their servants or agents and/ or otherwise howsoever are not entitled to remain on the suit properties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 20

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d. A permanent injunction be and is hereby issued restraining the Defendants whether by themselves or their servants or agents and/ or otherwise howsoever from remaining on, continuing occupation of the suit properties; e. The Defendants including Interested Parties do grant vacant possession of the suit properties being LR No. 12948/17 and I.R 39448/1, LR No. 10425 and I.R 17839, LR No. 8784 and 1.R 75467, LR No. 7815/1, and LR No. 8786 (‘the suit properties’) to the Plaintiff, within ninety (90) days from the date hereof, failure of which eviction order do issue and the Officer Commanding Police Station Athi River directed to assist in peaceful execution. f. General damages for trespass and Mesne Profits are awarded to the Plaintiff at Kshs.5,000,000 to be jointly and severally borne by the Defendants and Interested Parties. g. Costs of this suit together with interest on (f) above is granted to the Plaintiff, to be jointly borne by the Defendants and Interested Parties from the date of this Judgement.’ 105. From the perusal of the Application dated 07/02/2025 by the Petitioners and supported by the Interested Parties, they appear to be raising the same issues that were raised before the Environment and Land Court in the stated case such as the fact that they have been in occupation of the land for over 15 years, that they have investments on the suit properties, issues that were dealt with conclusively by a court of concurrent jurisdiction. 106. No evidence has been placed before this court on the position of the said judgement. It is not clear whether the said judgement was challenged at all or whether the Defendants/ Interested Parties, some of whom are parties in the instant application did comply with the conditions set out in the said judgement. 107. As regards whether this court should vary, discharge and/or set aside the Orders granted on 10/02/2025 pursuant to the Petitioners’ application dated 07/02/2025, the same has been addressed by Rule 25 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules which provides that; “ An order issued under rule 22 may be discharged, varied or set aside by the Court either on its own motion or on application by a party dissatisfied with the order. 108. The 1st Respondent contended that the impugned ex-parte orders issued herein on 10/02/2025 are final in nature to the extent that they order the Respondents to recognise and respect the investments of the Petitioners on the 1st Respondent's property without a hearing; and that the said impugned ex parte Orders have the effect of limiting the 1st Respondent's proprietary rights in the subject property with finality contrary to Article 40 of the Constitution as read with Sections 24 and 25 of the Land Registration Act thus denying the 1st Respondent of an opportunity to be heard. It was further contended that the ex-parte Orders include a structural interdict directed at the Attorney General to establish mechanisms and guidelines to ensure equitable access to land and prevent exploitation of vulnerable communities, which again is in the nature of a final order that cannot be issued ex-parte. 109. On the foregoing contentions, I must clarify that the ex-parte orders were issued temporarily pending inter-partes directions on the Petitioners’ application dated 07/02/2025 and were not final orders in the circumstances. 110. Upon considered the responses by the Respondents to the Petitioners’ application aforesaid, I have established that in seeking the Orders, the Petitioners who are the beneficiaries thereof concealed and or failed to disclose to the Court the existence of a decision in rem relating to the same suit properties https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 21

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which was issued in Machakos ELC No. 155 of 2016-East Africa Portland Cement vs Sammy Kathilu & 272 Others wherein all occupants that were not the registered proprietor and claiming through associations were determined to be trespassers. Had this material fact been disclosed to the court at the first instance the court would have ordered otherwise. 111. Non-disclosure of facts was discussed in Bahadurali Ebrahim Shamji V Al Noor Jamal & 2 Others CIVIL APPEAL NO 210 OF 1997 where the Court of Appeal stated as follows: “ It is perfectly well-settled that a person who makes an ex parte application to the court – that is to say, in the absence of the person who will be affected by that which the court is asked to do – is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make the fullest possible disclosure then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained. It has been for many years the rule of court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts – facts, not law. He must not misstate the law if he can help it – the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement” 112. I align myself with the opinion of Gikonyo J in Re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR where he stated: “ .......Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.” Disposition 113. Pursuant to Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 this Court retains jurisdiction and discretion to discharge, vary or set-aside the said conservatory orders on application by any party dissatisfied therewith. 114. Accordingly, I allow the 1st Respondent’s application dated 18/02/2025 and proceed to discharge the orders issued herein ex-parte on 10/02/2025 for non-disclosure of material facts. 115. At the onset, I indicated that the outcome of one application could effectively determine the other. Having allowed the application dated 18/02/2025 which basically sought to vary, discharge and/or set aside the Orders granted on 10/02/2025 pursuant to the other application dated 07/02/2025, it follows that the application dated 07/02/2025 is dismissed with costs to the 1st and 2nd Respondents. 116. In the end, I make the following orders: a. The 1st Respondent’s Notice of Motion application dated 18/02/2025 is allowed to the extend of discharging the ex-parte orders issued herein on 10/02/2025. b. The Petitioners’ Notice of Motion application dated 07/02/2025 is hereby dismissed with costs to the1st and 2nd Respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 22

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117. c. All the other issues raised by the Petitioners and the Interested Parties will be better addressed at the hearing of the Petition. d. Directions to be taken on the disposal of the Petition herein. It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 26TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 26TH JUNE 2025 In the presence of : Mr. Morgan.................................. for Petitioners Mr. Mayiga................................... for 1st Respondent Mr. Abdi Salan Ali..........................for the 2nd Respondent Mr. Kuria ........................................for 3rd Respondent Mr. Kiamba...............................for the Interested Parties Milly……………........................ Court Assistant 25 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14325/eng@2025-06-26 23

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