Kisuya v Kisuya & 3 others (Environment and Land Case E012 of 2026) [2026] KEMC 654 (KLR)

3. The instant Application was premised on the grounds set out on its face which grounds were fortified by the Supporting Affidavit thereto sworn by the Plaintiff/Applicant on 23rd January 2026. 4. The Applicant deposed that he was the registered owner of Plot 33 located at Chwele market (“the suit property”) which has reportedly been his main source of income for decades. He relied on letter dated 14 th October 2024 and land rates payment schedule from the 4 th Respondent to demonstrate that he was the suit property’s registered owner. 5. He further averred that he was surprised to learn that the 1 st and 2nd Respondents executed a sale of land agreement on 03rd July 2025, selling the suit property without his knowledge and consent, and that the 3rd Respondent was in the process of taking possession of the suit property. He placed before this court a sale of land agreement dated 03 rd July 2025 in support of this averment. 6. The Applicant also averred that the Respondents' actions will cause an infringement of his rights under the Bill of Rights. 7. The 2nd Respondent opposed the instant Application through a Replying Affidavit sworn on 05th February 2026. 8. It was averred by the 2nd Respondent that the Plaintiff/Applicant had failed to disclose to this court that the suit property was part of the estate of Justus Peter Kisuya (deceased) in Bungoma High Court Probate & Administration Cause No. 035 of 2009 (“the probate case”). 9. The 2nd Respondent accused the Plaintiff/Applicant of forum shopping, given that the proprietorship of the suit property was still pending in the succession forum.

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10.He also took the position that an injunction can only be issued where the suit property was at the risk of being wasted, which was not the case in this matter. 11.The 2nd Respondent also urged this court to consider the Confirmed Grant issued on 19th July 2024 in the probate case as well as the Affidavit sworn by the Applicant on 24th October 2024, where the Applicant consented to the sale of the suit property. 12.He characterized the instant Application as frivolous and an abuse of the court process. 13.On the part of the 3rd Respondent, he filed Grounds of Opposition dated 30th January 2026 and a Replying Affidavit sworn on the even date. 14.The 3rd Defendant/Respondent was of the view that the instant Application was frivolous, misconceived, and an abuse of the court process. 15.He averred that the Plaintiff/Applicant had not established a prima facie case with a probability of success, and that the Applicant was not going to suffer any irreparable loss if the orders sought are not granted, given that the suit property had been lawfully transferred to him. He also stated that he was already in occupation of the suit property. 16.He added that he was a purchaser for value without notice of the suit property as evidenced by the transfer and clearance letter dated 24 th September 2025 from the 4th Respondent. 17.The 3rd Respondent further averred that he had lawfully purchased the suit property through a sale of land agreement dated 03rd July 2024, and that he had paid the suit property’s land rates and ground rent to the 4th Respondent. 18.The 1st and 4th Respondents did not file any response to the instant Application.

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19.Whereas this court granted the Applicant leave to file a further affidavit, if need be, the Applicant failed to do so. 20.This court also directed the parties herein to file written submissions. As of 05th March 2026 at 0700hrs, only the 2nd and the 4th Respondents had filed their respective written submissions. Parties’ Written Submissions 21.The written submissions filed by the 2nd and 4th Respondents were largely a rendition of the contents of their respective responses, summarized above. Therefore, it will not serve any purpose for this court to reproduce the said written submissions in this ruling. ANALYSIS & DETERMINATION 22.This court has given due regard to the parties’ pleadings, written submissions, annexures, and the authorities relied upon by each party. It is this court’s humble view that the only issue for determination is whether the instant Application is merited. Whether the Application and the Orders sought are merited 23. Before proceeding to determine whether the instant Application is merited, this court warns itself of the dangers of making definitive findings of fact or law at this interlocutory stage. This is in line with the Court of Appeal’s guidance in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, where the Court stated: “…..It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final

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determination can only properly be made when the case for the defence has been heard…” 24.Similarly, in Lucy Nungari Ngigi & 4 Others -vs- National Bank of Kenya Limited & Anor (2013) eKLR, the court stated as follows on this issue: “....I am also aware that the 1 st Defendant has raised issues in respect of the mortgage herein, their right to exercise the statutory power of sale, breach of the addendum, default of repayment of the loan etc. They have also raised some accountability issues from the 2nd Defendant on the purchase price. But even these queries should be reserved for and determined at the trial. These issues are in direct conflict with issues raised by the Plaintiffs and the 2 nd Defendant. At this stage I should not make any comments or findings, or express opinions on the substantive issues in controversy in order to avoid hurting the trial herein...” (Emphasis added) 25.Be that as it may, the authorities above do not in any way prevent this court from making definitive findings at this stage on issues which are not contested by the parties. 26.The Applicant herein seeks injunctive orders. The principles guiding the grant of an interlocutory injunction in this jurisdiction were set out in East African Industries vs. Trufoods [1972] EA 420 and Giella vs. Cassman Brown & Co. Ltd [1973] EA 358. Those principles were restated in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, where the court rendered itself thus:

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“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. 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] 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 “leapfrogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy

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of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.” 27. A reading of the authority above reveals that an Applicant must surmount the pillars for the grant of the injunctive orders sequentially. Simply put, failure by an Applicant to surmount the first hurdle for the grant of injunctive orders renders the consideration of the other hurdles moot. 28.This court will now proceed to determine whether the Applicant has satisfied the principles for the grant of injunctive orders sequentially. 29.On whether the Applicant has established a prima facie case, the Applicant took the position that the Defendants/Respondents' actions will cause an infringement of his rights under the Bill of Rights. 30.The 2nd and the 3rd Respondents on the other hand submitted that the Applicant had not established a prima-facie case for the grant of an injunction given that the ownership of the suit property was reportedly settled in the probate case where the Applicant also swore an Affidavit on 24th October 2024 permitting the 1st Respondent to sell the suit property for distribution of the suit property’s proceeds of sale to the deceased’s beneficiaries. 31.The 2nd Respondent further submitted that given that the Applicant had sworn an affidavit permitting the 1st Respondent to sell the suit property for the benefit of the beneficiaries in the probate case, the doctrine of approbation and reprobation estopped the Applicant from claiming ownership of the suit

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32.In the Mrao Ltd Case (supra) the Court of Appeal defined a prima facie case as follows: ‘…It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case…In civil cases a prima facie case is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.’ 33.Guided by the authority above, the question that abounds at this stage is whether the Applicant has demonstrated that there exists a right which has been apparently infringed by the Respondents to call for an explanation from the latter.

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34. The Applicant’s prayer for the injunctive orders is primarily predicated on the allegation that he is the owner of the suit property, which he fears that the Respondents will fraudulently disposes him if they are not stopped in their tracks thereby infringing his right to property. This begs another question of whether the Plaintiff/Applicant has established a prima-facie case of ownership of the suit property thereby laying a basis for his apprehension that his right to property is likely to be infringed if the injunction sought is not granted. 35.Turning to the evidence placed before this court, it is evident that the suit property was a subject of proceedings in the probate case where a Certificate of Confirmation of Grant was issued on 19th July 2024 listing the suit property among the property for distribution to the beneficiaries of the deceased’s estate. 36.Further, the uncontroverted evidence on record is that arising from the proceedings in the probate case, the Applicant swore an affidavit on 24th October 2025, transferring the suit property to the 1 st Respondent for sale and distribution of the proceeds of the suit property's sale to the deceased’s estate’s beneficiaries. 37. The foregoing informed the execution of the suit property’s sale agreement dated 03rd July 2024 between the 1st Respondent and the 3rd Respondent. 38.It would appear from the foregoing that the question of ownership of the suit property was conclusively determined in the probate case upon the issuance of the Certification of Confirmation of Grant on 19th July 2024. 39.Without making any definitive or conclusive finding on the issue of resjudicata, there are doubts in this court’s mind, at this interlocutory stage, whether the Plaintiff/Applicant has demonstrated that his claim to the suit

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property does not fall within the categories of claims/suits that are statutebarred under Section 7 of the Civil Procedure Act. 40.In addition to the above, given that the Applicant has not disputed the contents of the Affidavit he swore on 24 th October 2025 which led to the execution of the suit property’s sale agreement dated 03rd July between the 1st Respondent and the 3rd Respondent, this court is permitted to invoke the doctrine of promissory estoppel against the Plaintiff/Applicant. 41.The above doctrine was well explained by the Court of Appeal in Mjengo Limited v Menengai Oil Refineries Limited (Civil Appeal 80 of 2019) [2025] KECA 85 (KLR), as follows: “Promissory estoppel, as we understand it, is the legal principle that a promise is enforceable by law, even if made without formal consideration when a promisor has made a promise to a promisee who then relies on that promise to his subsequent detriment…In 1947 Justice Denning (as he then was) in Central London Property Trust Ltd vs High Trees House Ltd [1947] KB 130 summed up the applicable principles in cases of promissory estoppel in the following words: “... a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact so acted on." Therefore, where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create

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legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any preexisting relationship between the parties or not. The foregoing statement sums up the true legal position.” 42.Given the reasons above and guided by the authority above, and as rightly submitted by the 2nd Respondent, the Plaintiff/Applicant cannot be allowed to approbate and reprobate through the instant Application. 43.The upshot of the foregoing is that the Applicant has failed at this interlocutory stage to establish a prima facie case of ownership of the suit property. 44.The Applicant having failed to surmount the first hurdle for the grant of an injunction, consideration of the other pillars for the grant of an injunction has been rendered moot. In the circumstances, this court declines to deploy the scarce judicial resources in an academic exercise. DETERMINATION 45.The reasons above incline this court to dismiss the Applicant’s Application dated 23rd January 2026 with costs to the 2nd and 3rd Respondents. Read, signed, and delivered in open Court at Bungoma this 05th day of March 2026 T.O. OMONO

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SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Nekesa h/b for Mr. Wasilwa for the 2nd Defendant/Respondent Mr. Muyala for the 3rd Defendant/Respondent Mr. Akoko h/b for Mr. Odero for the 4th Defendant/Respondent C/A: Mr. Rioba

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