https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11975

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **FAMILY APPEAL NO. E013 OF 2025** **IN THE MATTER OF THE ESTATE OF THE LATE WASIKE WALUUSIO (DECEASED)** **PATRICK WAMBILIANGA WASIKE ……...APPELLANT/APPLICANT** **VERSUS** **METRINE BULENYA WASIKE………………………1ST RESPONDENT** **RUTH KHAOMA NYONGESA……………………….2ND RESPONDENT** **PAUL NDINYO WASIKE……………………………...3RD RESPONDENT** **BENJAMIN WAMBILIANGA WASIKE…………….4TH RESPONDENT** **SUSAN NEKESA WANGILA…………………………5TH RESPONDENT** **RULING** 1. By way of Notice of Motion dated 23rd March 2026, brought under **Section 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules, Order 40 Rule 1(a), (2), (3), (4) and (10) and Order 51 Rule 1 of the Civil Procedure Rules, 2010,** the Applicant seeks the following orders; 1. **Spent.** 2. **Spent.** 3. **That this Honourable Court be pleased to issue an Order of a temporary injunction restraining the Respondents from evicting and/or in any other manner interfering with the Appellant's occupation of Land Parcels No. Bokoli/Chwele/5952, L.R No. Bokoli/Chwele/5953, L.R No. Bokoli/Chwele/5954 and L.R No. Bokoli/Chwele/5961, which were created upon subdivision of Land Parcel No. Bokoli/Chwele/117, pending the hearing and determination of this Appeal.** 4. **That costs of this Application be in the cause**. 2. The Application is premised on the grounds on the face of it and the averments of the Applicant in the Supporting Affidavit sworn on 23rd March 2026. The Applicant asserts that, having been aggrieved by the Judgment delivered on 5th October 2023 in Kimilili CMC Succession Cause No. 184 of 2018, he has lodged an appeal which remains pending. The Applicant further contends that the Respondents are threatening to evict him and other beneficiaries occupying parcels of land derived from the subdivision of Land Parcel No. Bokoli/Chwele/117. 3. Additionally, the Respondents are alleged to have hired goons who are threatening the Appellant and the beneficiaries with eviction without adhering to due process. He also alleges that the Respondents are destroying sugarcane and other crops cultivated by the beneficiaries occupying the suit land. The conduct of the Respondents, if not restrained, is likely to cause a breach of the peace; the appeal will be rendered nugatory or superfluous if the Respondents are not restrained. 4. Further, he depones that he is one of the beneficiaries of the estate of their late father, and following a protracted trial, the trial court delivered its judgment on 5th October 2023, and that, aggrieved by the said judgment, he sought and obtained leave to file an appeal out of time and subsequently filed the appeal now pending before this Court. 5. He depones that whilst the appeal is pending, the Respondents, through their advocates, issued a notice to some of the beneficiaries of the estate to vacate a portion of land comprised in **L.R No. Bokoli/Chwele/117**, which portion he stated was duly allocated to him by the deceased, annexing a copy of the Demand Notice marked “PWW-1”. He deponed that he duly responded to the demand notice through his advocates, annexing a copy of the reply marked “PWW-2”. 6. He depones that he wished to reiterate that he, together with his co-administrator one Boniface Wasike Masibo, were not involved in the subdivision of **Land Parcel No. Bokoli/Chwele/117**, annexing a copy of the Green Card and a Certificate of Official Search marked PWW-3(a) and PWW-3(b). He further depones that upon the subdivision, the Respondents were registered as proprietors of **L.R Nos. Bokoli/Chwele/5952, 5953, 5954 and 5961,** annexing certificates of official search marked PWW-4(a)-(d). 7. He depones that he was surprised when the 4th Respondent came onto the land with hired goons, who were armed, and began ploughing the land while threatening to forcibly evict his son, who is in occupation of the portion allocated to him by the deceased, which portion he stated has been extensively developed by his son, annexing photographs marked PWW-5(a)-(d). He stated that he reported the matter to Chwele Police Station on 9th February 2026, but that the police were reluctant to assist in the absence of a court order. 8. He deponed that the appeal before the Court challenges the trial court's judgment with regard to distribution, particularly in respect of **Land Parcel No. Bokoli/Chwele/117**, and that unless the Respondents are restrained the appeal will be rendered nugatory, annexing a copy of the Memorandum of Appeal marked PWW-6. He urged the Court to allow the application as prayed. **Replying Affidavit** 1. The 1st Respondent, Metrine Bulenya Wasike, filed a Replying Affidavit sworn on 20th April 2026. She depones that vide the Grant of Letters of Administration dated 23rd May 2022, she, together with Boniface Wasike Masibo and the Applicant, were appointed co-administrators of the estate of the late Wasike Waluusio, annexing a copy of the Letters marked MB-1. 2. She depones that the judgment in the succession matter was delivered on 5th October 2023 confirming the grant in the estate, annexing a copy of the judgment marked MB-2; and that upon delivery of the judgment, and pursuant to **Section 61(2) of the Land Registration Act,** she informed her co-administrators of their obligations, and the administrators thereafter began the process of subdivision and transfer before the Land Registrar. 3. She deposes that **Land Parcel No. Bokoli/Chwele/117** was, pursuant to the judgment, to be subdivided among sixteen (16) beneficiaries. The subdivision was executed accordingly, with each beneficiary required to pay the statutory fees for processing their respective title deeds. 4. Title deeds were subsequently processed only for those beneficiaries who made the payments, specifically: **L.R No. Bokoli/Chwele/5952** awarded to Benjamin Wambilianga Wasike; **L.R No. Bokoli/Chwele/5953** awarded to Paul Ndinyo Wasike; **L.R No. Bokoli/Chwele/5954** awarded to Sarah Khatemende Wasike and Longinus Kundu Wasike; **L.R No. Bokoli/Chwele/5955** awarded to Martin Masibo Wasike; and **L.R No. Bokoli/Chwele/5961** awarded to the deponent, attaching copies of the relevant titles marked MB-3(a)-(e). 5. She depones that, during the ongoing process and with the full knowledge and participation of the Applicant, he subsequently approached the Court seeking leave to file an appeal out of time. Such leave was granted on 30th September 2025. However, apart from submitting the Memorandum of Appeal, he did not pursue any stay orders to halt the transmission and issuance of the title. 6. She states that her advocate advised her that the Applicant had filed a motion based on a fabricated reason, alleging that beneficiaries had been issued notices to vacate the transmitted portions. The notice in question was issued to one Stanslas Mlati Wabilianga and one Joy Chebukati, who were unlawfully occupying **L.R No. Bokoli/Chwele/5955,** belonging to Martin Masibo Wasike. Neither of these individuals is a beneficiary of the estate nor a registered proprietor, as evidenced by the copy of the notice marked MB-4. 7. She deposes that no evidence has been presented before the Court to demonstrate any threat of eviction concerning **L.R Nos. Bokoli/Chwele/5952, 5953, 5954, and 5961,** which are the very parcels in respect of which the Applicant seeks protection. She further states that it is not legally permissible to oppose eviction where the opposing party holds a valid title. Additionally, she avers that the occupants of **L.R No. Bokoli/Chwele/5955,** which does not form part of the properties the Applicant seeks to protect in this application, occupy the parcel without any legal entitlement. 8. She depones that she was advised by her advocates that the Applicant had not met the threshold for the Court to exercise its discretion in his favour, and that the Application dated 23rd March 2026 ought to be dismissed with costs. **Supplementary Affidavit** 1. The Applicant, in response, filed a Supplementary Affidavit sworn on 28th May 2026, wherein he reiterated that the process of registration of the Certificate of Confirmation and the partition of **Land Parcel No. Bokoli/Chwele/117** was done fraudulently, as neither he nor his co-administrator, Boniface Wasike Masibo, signed **LRA Forms 39 and 42** as required by law, and that they were never notified to appear before the Land Control Board for approval of the consent to the application for partition. 2. He also deposes that the Court, in allowing the application for leave to file an appeal out of time, had acknowledged that he had an arguable appeal, annexing a copy of the said Ruling marked PWW-7. He avers that the 1st Respondent, though aware that he was challenging the judgment of the trial court, fraudulently caused the registration of the Certificate of Confirmation of Grant and the partition of **Land Parcel No. Bokoli/Chwele/117** without his knowledge, and that the partition was carried out on paper without an actual survey on the ground, making it difficult to locate the new parcel numbers created therefrom. 3. He deposes that it would be fair and just for an injunctive order to be issued, restraining the Respondents from interfering with **Land Parcel No. Bokoli/Chwele/117** and the parcels derived therefrom, pending the hearing and determination of the appeal. He asserts that the Respondents would not be prejudiced by such an order, as they reside on **L.R No. Bokoli/Chwele/1066**. 4. Furthermore, he contends that the Respondents' actions in partitioning the parcel, without concurrently registering the Certificate of Confirmation of Grant over other parcels comprising the estate, were malicious and vexatious. 5. The parties were directed by the court to canvass the application by way of written submissions, and both complied. **Applicant's Submissions** 1. Learned counsel for the Applicant filed written submissions framing the sole issue for determination as whether the Applicant has met the requisite conditions to warrant the grant of a temporary injunction pending appeal. 2. Counsel relied on **Order 42 Rule 6(6) of the Civil Procedure Rules, 2010**, which empowers the High Court, in the exercise of its appellate jurisdiction, to grant a temporary injunction on such terms as it deems just, provided the procedure for instituting an appeal has been complied with, and submitted that since the Applicant obtained leave to appeal out of time and filed his appeal, this Court is properly seized of jurisdiction to entertain the application. 3. Counsel cited **Patricia Njeri & 3 Others v. National Museum of Kenya [2004] eKLR and Venture Capital & Credit Ltd v. Consolidated Bank of Kenya Ltd, Civil Application No. Nairobi 349 of 2003 (UR)**, to illustrate that the grant of an injunction pending appeal is discretionary and must be exercised judiciously. 4. This discretion is guided by considerations such as whether the intended appeal is frivolous, whether refusal to grant the injunction would render the appeal nugatory, and whether granting the injunction would cause greater hardship than it would prevent. These principles are ultimately grounded in the decision of **Giella v. Cassman Brown & Co. Ltd [1973] EA 358.** 5. On what constitutes a prima facie case, counsel cited **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR** and **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR**, and on what constitutes an arguable appeal, counsel cited **Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others [2013] eKLR**, for the proposition that an arguable ground of appeal need not succeed but must not be frivolous. 6. Counsel submitted that the Applicant's grounds of appeal, namely that the trial Magistrate erred in adopting the Objector's mode of distribution despite clear evidence indicating that the deceased had already allocated portions of **L.R Nos. Bokoli/Chwele/117 and 118** to the beneficiaries of the 1st and 2nd houses, are arguable. This is particularly so considering that the 1st Respondent's Replying Affidavit does not specifically rebut the allegation that the subdivision and issuance of title proceeded without the involvement of the Applicant and his co-administrator. 7. On irreparable harm, counsel cited **Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR** and submitted that the Applicant, being a beneficiary in occupation and use of the allocated portions of **L.R No. Bokoli/Chwele/117**, as shown by the annexed photographs marked PWW-5, stands to suffer irreparable loss, and that the appeal would be rendered nugatory, if the injunction sought is not granted. 8. Counsel further relied on **Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 and Kenya Airline Pilots Association (KALPA) v Co-operative Bank of Kenya Limited & Another [2020] eKLR** on the purpose of a status quo order and urged that the balance of convenience tilts in favour of maintaining the status quo of the suit property pending the hearing and determination of the appeal. Counsel prayed that the application be allowed with costs. **Respondents' Submissions** 1. Learned counsel for the Respondents filed written submissions dated 22nd May 2026, setting out the background facts and reiterating the averments in the Replying Affidavit of the 1st Respondent. 2. Counsel submitted that the Applicant fully participated in the succession proceedings, consented to the transmission of the estate, and facilitated the transfer of the properties to the beneficiaries, and that, having completed administration and transmission, he is *functus officio* and lacks the *locus standi* to seek injunctive relief on behalf of persons who are not beneficiaries of the estate. 3. Counsel submitted that the notices in question were not issued against the Applicant nor concerning the parcels specified in the application. Instead, they were issued to Mr Stanslas Mlati Wabilianga and Ms Joy Chebukati, who were unlawfully occupying **L.R No. Bokoli/Chwele/5955,** registered in the name of Mr Martin Masibo Wasike. 4. These individuals are neither beneficiaries of the estate nor parties to the application. Furthermore, the Applicant's claim that the said individuals were beneficiaries of the estate appears to be an attempt to mislead the Court. 5. Counsel relied on **Caliph Properties Limited v Barbel Sharma & Another [2015] eKLR and Esther Nugari Gachomo v Equity Bank Limited [2019] eKLR** for the proposition that a party who comes to equity must come with clean hands and submitted that the Applicant's conduct in misrepresenting the status of the said occupants disentitles him to the equitable relief of an injunction. Counsel prayed that the application dated 23rd March 2026 be dismissed with costs. **Determination** 1. I have considered the Notice of Motion, the grounds on its face, the Supporting Affidavit and Supplementary Affidavit of the Applicant, the Replying Affidavit of the 1st Respondent, and the rival submissions of both counsels. Arising therefrom, the following issues fall for determination; * + 1. **Whether the Applicant has demonstrated a prima facie case, with a probability of success, in respect of the specific parcels of land named in the application, namely L.R Nos. Bokoli/Chwele/5952, 5953, 5954 and 5961;** 2. **Whether the Applicant has demonstrated that he stands to suffer irreparable harm, not compensable by an award of damages, if the injunction sought is not granted; and** 3. **Where the above is not established, whether the application ought nonetheless to be considered on a balance of convenience.** 2. It is trite, as was held in **Giella v Cassman Brown & Co. Ltd [1973] EA 358**, that for an interlocutory injunction; "**First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide the application on the balance of convenience**." 1. **Order 42 Rule 6(6) of the Civil Procedure Rules** states; **"Notwithstanding anything contained in subrule (1) of this rule, the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with."** 1. It is uncontested that the Applicant was granted leave to appeal out of time on 30th September 2025 and has subsequently submitted his Memorandum of Appeal; accordingly, this Court is duly seized of jurisdiction to consider the application. 2. In considering whether a prima facie case has been established, I observe that the injunction sought through prayer 3 of the Notice of Motion is articulated with particularity that it aims to prevent the Respondents from evicting or interfering with the Applicant's occupation of **L.R Nos. Bokoli/Chwele/5952, 5953, 5954, and 5961**. The assessment of the existence of a prima facie case must therefore be based on a threatened invasion of the Applicant's possession of these specific parcels. However, according to the Applicant's Supporting Affidavit and the evidence presented by the 1st Respondent, which is not specifically challenged on this issue, the four parcels of land mentioned in the prayer were, upon subdivision, registered not in favour of the Applicant or persons claiming under him. 3. Instead, they were registered to the 4th Respondent, Benjamin Wambilianga Wasike; the 3rd Respondent, Paul Ndinyo Wasike; Sarah Khatemende Wasike; Longinus Kundu Wasike; and the 1st Respondent, Metrine Bulenya Wasike herself, as evidenced by the certificates of title annexed and marked MB-3(a)-(e). At no point in his Supporting Affidavit, Supplementary Affidavit, or the annexures thereto does the Applicant depose to being registered as the owner of, or occupying, any of the four parcels of land. 4. The demand notice upon which the Applicant relies as evidence of the threatened eviction, in conjunction with the response thereto, both annexed to his Supporting Affidavit as PWW-1 and PWW-2, and the notice annexed by the 1st Respondent as MB-4, all pertain to a completely different parcel**, L.R No. Bokoli/Chwele/5955**, registered in the name of Martin Masibo Wasike, who is not a party to these proceedings. 5. Additionally, they concern one Stanslas Mlati Wabilianga and one Joy Chebukati, who are likewise not parties to this application, and whom the 1st Respondent asserts are not beneficiaries of the estate at all. This assertion is not explicitly contested in the Applicant's Supplementary Affidavit, which instead addresses the legitimacy of the process by which the partition of **Land Parcel No. Bokoli/Chwele/117** was conducted. 6. It follows therefore that the Applicant has placed no evidence before this Court indicating any threatened or actual eviction from, or interference with, the four specific parcels of land for which he seeks protection through an injunction. The threat documented in the record pertains to a different, undisputedly non-party parcels, and involves non-party occupants whose status as beneficiaries is itself disputed. This Court therefore cannot, in the context of an application for a temporary injunction, prevent a party from evicting an individual from land concerning which no threat of eviction has been demonstrated. The prayer as framed and the evidence presented do not correspond. 7. I am alive to the submission of the Applicant's counsel that the grounds of appeal, concerning whether the trial Magistrate erred in adopting the Objector's mode of distribution over **Land Parcels Bokoli/Chwele/117 and 118,** are arguable. I further note that this Court, in granting leave to appeal out of time on 30th September 2025, had already arrived at a similar conclusion. 8. However, an arguable appeal alone is insufficient to warrant an interlocutory injunction; the Applicant must additionally demonstrate, in relation to the specific relief sought, a probability of success founded on a clear and unequivocal right that is directly and presently under threat, as emphasised in **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR**. Such a nexus is absent in the present case, for the reasons outlined above. 9. Having determined that the Applicant has failed to establish a prima facie case regarding the four parcels mentioned in the application, it is unnecessary to dwell on the issue of irreparable harm, except to note that the photographs labelled as PWW-5, which were relied upon by counsel as evidence of development and occupation, have not been demonstrated to pertain to **L.R Nos. Bokoli/Chwele/5952, 5953, 5954, or 5961**. Consequently, these cannot substantiate a claim of irreparable harm specific to those parcels. 10. Furthermore, the third criterion in Giella does not apply under these circumstances, as a balance of convenience is only considered when the Court is uncertain about the existence of a prima facie case. In this instance, there is no such uncertainty; rather, there is merely a lack of evidence linking the relief sought to any articulated threat. 11. In light of the foregoing findings, it is unnecessary for this Court to determine the competing contentions regarding whether the Applicant is *functus officio* and lacks *locus standi,* or whether the doctrine that one who seeks equity must come with clean hands, as emphasized in **Caliph Properties Limited v Barbel Sharma & Another [2015] eKLR and Esther Nugari Gachomo v Equity Bank Limited [2019] eKLR,** applies to disqualify him from relief. 12. Furthermore, the question of whether the process of subdivision and partition of Land **Parcel No. Bokoli/Chwele/117** was conducted regularly or fraudulently remains unresolved, as these issues are properly reserved for examination during the hearing of the substantive appeal, based on a comprehensive and verified record. 13. As a result, and for the reasons set out above, I find that the Applicant has not met the threshold for the grant of the temporary injunction sought in prayer 3 of the Notice of Motion dated 23rd March 2026. The Application therefore lacks merit and it is now hereby dismissed, with costs to the Respondents. **Read, Dated and Signed at BUNGOMA on 30th July 2026.** **E. OMINDE** **JUDGE**