Maina v Orina & another (Environment and Land Case E204 of 2025) [2026] KEELC 596 (KLR) (29 January 2026) (Ruling)

Maina v Orina & another (Environment and Land Case E204 of 2025) [2026] KEELC 596 (KLR) (29 January 2026) (Ruling) Neutral citation: [2026] KEELC 596 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E204 of 2025 J Omange, J January 29, 2026 Between Nelly Wambui Maina Plaintiff and Shem Oyagi Orina 1st Defendant Havilaplus Estates Limited 2nd Defendant Ruling 1.i.This dispute relates to land parcel Nairobi/block 206/6656(formerly LR NO 6845/3014) herein referred to as the suit property. There are two applications before this court. In the application dated 16th April 2025 the Plaintiff seeks the following orders;ii.That Pending the hearing and determination of this application, there be an order of inhibition stopping any dealings, registration and transactions over the parcel of land known as Title No. Nairobi/block 206/6656 (formerly L.R No. 6845/3014).iii.That Pending the hearing and determination of this application, there be an injunction restraining the Defendant, its servants, agents, employees and/or anyone acting on their authority from selling, transferring, or dealing in any way that may change ownership with the parcel of land known as Title No. NAIROBI/BLOCK 206/6656 (formerly L.R No 6845/3014).iv.Pending the hearing and determination of this application interpartes, this Honourable Court be pleased to issue an order directing the Defendants to deposit all the rental income collected, received and or paid to the Defendants from 1" September 2023 in relation to the property Title No. Nairobi/block 206/6656 (formerly L.R No 6845/3014) whether by themselves or their servants, officers, servants employee, agents or persons acting for and under them be deposited into a joint account under the control of the Plaintiff and the 1st Defendant.v.That Pending the hearing and determination of this Application interpartes, this Honourable court be pleased to issue an order to stop any transfers, withdrawals, honoring of any cheques or any other movement of any funds held in the account Number 1278839607 held at KCB Bank Kenya Ltd in the name of the 1st Defendant.vi.That Pending the hearing and determination of this Application interpartes as well as the Suit herein, this Honourable court be pleased to issue an order that all rental income collected by the Defendants in respect of property Title No. Nairobi/block 206/6656 (formerly L.R No. 6845/3014) be deposited into an account under the control of the Plaintiff and the 1st Defendant only.vii.That Pending the hearing and determination of the suit herein, this Honourable Court be pleased to issue a mandatory order directing the Defendants that all rental income to be collected by the Defendants in respect of property Title No. Nairobi/block 206/6656 (formerly L.R No 6845/3014) be deposited into a joint account under the control of the Plaintiff and the 1st Defendant.viii.That pending the hearing and determination of this suit, the Honourable court be pleased to issue a permanent injunction restraining the Defendants from utilizing, disposing off, and/or appropriating any sums received in relation to the rental income from the property Title No. Nairobi/block 206/6656 (formerly L.R No 6845/3014) without the full involvement and concurrence of the Plaintiff.ix.In the alternative to prayer 6, 7 and 8 above, pending the hearing and determination of this application and the suit, all rental income received by the Defendants from 1st September 2023 and all other rental income payable in respect to the property as Title No. NAIROBI/BLOCK 206/6656 (formerly L.R No 6845/3014) be deposited in court pending the hearing and determination of application and the suit herein.x.That pending the hearing and determination of this application and suit, this Honourable Court be pleased to issue a mandatory injunction order for the 1st Defendant to produce the original Title for the property Title No. Nairobi/block 206/6656 (formerly L.R No 6845/3014) before court.xi.A mandatory injunction be issued compelling the Defendants to furnish the Plaintiff with a complete, proper and accurate statement of accounts in respect of all the rental income collected and or received in respect to the property Title No. Nairobi/block 206/6656 (formerly L.R No 6845/30 14)xii.Costs of this application be provided for. 2.In the 2nd application dated 30th May 2025 the Defendant/ Respondent prays for the following orders;i.Spent.ii.That this Honourable Court be pleased to stay proceedings in this suit pending the production of the defendant's crucial documents currently in the custody of the plaintiff.iii.Any other relief that this Honourable Court may deem fit and just to grant.iv.Cost of this application be provided for. 3.The background to the suit is that the Plaintiff and the Defendant are spouses who are presently in the midst of divorce proceedings pending before a court in the United Kingdom, where they previously cohabited. The Plaintiff avers that during the subsistence of the marriage, the parties jointly acquired the suit property situate in Kenya. She contends that she contributed approximately seventy percent (70%) of the purchase price and attendant costs and therefore asserts a beneficial interest in the property. She expresses apprehension that the Defendant may dispose of the property to her detriment unless restrained by the Court. 4.The Defendant did not file a replying affidavit or grounds of opposition to the Plaintiff’s application. Instead, he filed a separate application seeking stay of proceedings, contending that a non-molestation order issued by a UK court prevents him from accessing the matrimonial home and documents relating to the suit property, thereby impairing his ability to defend the suit. 5.Both counsels filed submissions on behalf of their clients. Having considered the applications and the submissions the court distills the following issues for determination; * Whether the Court has jurisdiction to entertain the suit and the interlocutory applications; * Whether the Plaintiff has met the threshold for grant of interlocutory injunctive orders; * Whether the Defendant has established sufficient grounds for stay of proceedings; 6.The centrality of jurisdiction was underscored by the Supreme Court in the case of Samuel Kamau Macharia & ano v Kenya Commercial Bank Limited & 2 others [2012] eKLR where the apex court rendered itself thus:“A court’s jurisdiction flows from either [the Constitution](/akn/ke/act/2010/constitution) or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by [the Constitution](/akn/ke/act/2010/constitution) or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 7.The suit property is situate within the Republic of Kenya. The Plaintiff’s claim is founded on alleged contribution and beneficial ownership, invoking principles of trust and equitable proprietary interests in land. Under Article 162(2) (b) of [the Constitution](/akn/ke/act/2010/constitution) and section 13 of the [Environment and Land Court Act](/akn/ke/act/2011/19), this Court has jurisdiction to hear and determine disputes relating to title, occupation, and interests in land. 8.The existence of divorce proceedings in a foreign jurisdiction does not, of itself, divest this Court of jurisdiction over land situate in Kenya. As observed in Re Estate of Lerionka Ole Ntutu (Deceased) [2019] eKLR, Kenyan courts retain jurisdiction over immovable property located in Kenya notwithstanding parallel foreign proceedings. 9.The Court is however is careful, at this interlocutory stage, to confine itself to preservation of the subject matter, without making any final determination on property distribution until evidence is led on the scope of the proceedings in the UK. 10.For orderly progression I will consider the issue of stay of proceedings next. In considering whether to grant stay of proceedings, the Court is required to exercise its discretion after due consideration of the merits of the case and the likely effect that such an order may have on the need to ensure that the ends of justice are met. The exercise of the court’s discretion must be grounded on judicious principles as was held by Hon. Justice Ringera held in the case of Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000 thus“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice …… the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is so, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 11.Further, in the case of Kenya Wildlife Services v Jane Mutembi (2019) eKLR, again, Hon. Justice F. Gikonyo held that:“Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall right to fair trial. Therefore, the test for stay of proceedings is high and stringent. 12.The court is thus called upon to weigh staying the proceedings against the fact that the parties are entitled to expeditious determination of the dispute. The Defendant contends that a non-molestation order issued in the United Kingdom prevents him from accessing documents necessary for his defence. The Court is not persuaded that this amounts to sufficient cause. The Defendant has not demonstrated that the documents cannot be obtained from alternative lawful sources such as the Lands Registry or other third parties. 13.Lastly the court considers whether to grant the injunctive reliefs prayed for. The principles governing grant of interlocutory injunctions are settled and were enunciated in Giella v Cassman Brown & Co Ltd [1973] EA 358, thus; establishment of a prima facie case with a probability of success; likelihood of irreparable harm not compensable by damages; and determination on a balance of convenience. 14.The Plaintiff has deponed that she substantially contributed to the acquisition of the suit property and claims a beneficial interest therein. Land is a unique and immovable asset. It is essential that the court issues orders to preserve the estate. 15.On the question of the rental income, where ownership is disputed and income is generated from the subject property, courts have consistently ordered preservation of such income to prevent unjust enrichment. In Park Towers Ltd v John Mithamo Njika & 7 Others [2014] eKLR, the Court held that preservation of rental income is appropriate pending resolution of competing claims. 16.Such an order does not determine ownership but safeguards the proceeds of the property pending final determination. The Court finds this relief reasonable and proportionate. 17.In the end the application is allowed as follows;a.The Defendant’s Notice of Motion dated 30th May 2025 is hereby dismissed.b.The Defendant, his agents, servants or assigns are hereby restrained from selling, transferring, charging, mortgaging the suit property.c.All rental income derived from the suit property shall be deposited in an interest-earning account in the joint names of the parties’ advocates, or in Court in default of agreement, within thirty (30) days of the date hereof and shall continue to be so deposited until further orders of the Court.d.Costs of both applications shall abide the outcome of the main suit. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 29 TH DAY OF JANUARY 2026.****JUDY OMANGE****JUDGE.** In The Presence Of;N/A For the Plaintiff.N/A for the Defendants.Peter – Court Assistant.