https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5189

**IN THE ENVIRONMENT AND LAND COURT AT VIHIGA** **ELC EPOS NO. E001 OF 2026** **IN THE MATTER OF THE LIMITATION OF ACTIONS ACT, CAP. 22** **AND** **IN THE MATTER OF LAND PARCEL NO. TIRIKI/TIGOI/1208** AGINEDA ANDIGA …………………………………………………. APPLICANT VERSUS EVANS MANYURU………………………………………………….1ST RESPONDENT MILLYCENT KAVOKI……………………………………………...2ND RESPONDENT AGNES IRONDE LODI …………………………………………. INTERESTED PARTY **RULING** 1. The applicant’s Notice of Motion dated 19 March 2026 is brought principally under Order 40 of the Civil Procedure Rules. She seeks a temporary injunction restraining the respondents from interfering with her occupation and use of land parcel **Tiriki/Tigoi/1208**, disposing of it, commencing construction, accumulating construction materials or otherwise dealing with it. She also seeks a prohibitory order against registration of any transaction over the parcel and confirmation of those orders until determination of the originating summons. 2. For clarity, the matter presently before the Court for determination is the Notice of Motion dated 19 March 2026. The Originating Summons dated 11 March 2026 constitutes the substantive suit through which the applicant seeks title by adverse possession; it is not before the Court for final determination at this stage. When the motion first came before the Court on 25 March 2026, interim orders were issued preserving the property. The respondents and the interested party have since opposed confirmation of those orders and, on two occasions, orally asked the Court to vacate them. Those oral requests were not presented or directed to be heard as a separate application under Order 40 rule 7 of the Civil Procedure Rules. I therefore treat them as part of the opposition to the motion. Determination of the motion will necessarily determine whether the interim orders should be confirmed, varied or discharged. 3. The motion is supported by the applicant’s affidavit sworn on 19 March 2026. It is opposed through the replying affidavit of Millycent Kavoki Kidiga sworn on 30 April 2026 and the interested party’s replying affidavit sworn on 12 May 2026. I have considered those affidavits, their annexures, the parties’ respective positions and the record. **The parties’ cases** 1. The applicant is 78 years old. She states that the parcel is registered in the name of the late Herman Kidiga Manyulu, who died on 18 November 1992. According to her, Herman was an uncle to her late husband, Joseph Andiga Amaya, and placed the land in her husband’s care in 1973. She maintains that Herman never resided on the parcel; that she and her husband cultivated it; and that she erected temporary rental premises which remained there until the interested party allegedly entered the land and demolished them between January and March 2026. 2. The applicant further states that her occupation was open, peaceful, continuous and known to the respondents for more than 56 years. She says the respondents sold the property to the interested party while succession proceedings were pending; that she objected in the succession cause; and that the interested party, who had previously been her tenant, knew of her asserted interest but nevertheless fenced the land, demolished structures and began assembling materials for construction. 3. The respondents’ account is materially different. They state that the applicant’s late husband was the vendor who transferred the parcel to Herman Kidiga Manyulu in 1989. They contend that the parcel is a small commercial plot at Boyani Shopping Centre; that it remained vacant, uncultivated and undeveloped; and that the applicant’s husband’s alleged role, if any, was permissive caretaking and therefore incapable, without a demonstrated repudiation of that permission, of founding adverse possession. 4. The respondents also contend that the structures relied upon by the applicant stood on the road reserve in front of the parcel rather than on the parcel itself. They say that when the family resolved to sell the land to meet medical expenses, the applicant knew of and initially supported the sale, proposed the interested party as a local purchaser, and only asserted adverse possession after a dispute arose over the sale proceeds. They rely on the register, survey material, photographs, correspondence and the succession documents. 5. The interested party states that she purchased the parcel under an agreement dated 6 September 2025 and paid Ksh 800,000 as a deposit pending completion of succession. She says the parcel was vacant when she first became the applicant’s tenant on the neighbouring property in 2023 and remained so until her purchase. Following survey work in February 2026, she fenced the parcel and commenced a three-level commercial building in early March 2026. By the time the suit was served, she says the foundation had already been constructed. She has since suspended the development in obedience to the interim orders. **Issues for determination** 1. The issues falling for determination are: 2. whether the applicant has established the requirements for a temporary injunction pending determination of the originating summons; 3. whether a prohibitory or preservation order should nevertheless issue over the register; and 4. what orders should be made concerning the interim orders of 25 March 2026 and costs. **Whether a temporary injunction should issue** 1. The established principles are that an applicant must demonstrate a prima facie case with a probability of success; that, unless the injunction issues, she is likely to suffer injury which cannot adequately be compensated by damages; and, where the Court remains in doubt, that the balance of convenience favours the order. In ***Nguruman Limited v Jan Bonde Nielsen & 2 others, Civil Appeal No. 77 of 2012 [2014] eKLR***, the Court of Appeal emphasised that the requirements are distinct and sequential. If no prima facie case is established, the Court need not proceed as though the remaining limbs can cure that deficiency. 2. A prima facie case is not established by showing merely that there is an arguable dispute. As explained in ***Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KLR 125***, the material must disclose an apparently infringed right calling for an answer from the opposite party. At this stage, however, the Court must not conduct a trial or finally determine disputed questions of credibility and title. 3. The substantive claim is adverse possession. The applicant will ultimately have to establish possession which was open, continuous, exclusive and adverse to the title of the registered proprietor for at least twelve years. Possession which is attributable to permission, licence or some other consensual arrangement is not adverse while that basis continues. The inquiry is therefore not confined to the length of physical presence; its character and the point at which it became inconsistent with the registered owner’s title are equally material. 4. The applicant’s claim of more than 56 years is immediately confronted by the register showing that Herman Kidiga Manyulu acquired the parcel from her late husband in 1989. Her own account is that Herman had entrusted the land to her husband to take care of it. On its face, that account describes a permissive origin. The supporting affidavit does not identify when or by what unequivocal act that permission was repudiated and possession became hostile to the registered proprietor’s title. 5. There is also a substantial dispute over the land actually occupied. The applicant says that she cultivated the parcel and erected temporary rental structures upon it. The respondents and the interested party say that the parcel itself remained vacant and that the temporary structures were on the road reserve. The applicant did not place before the Court, in support of this motion, tenancy records, rent receipts, contemporaneous photographs or other material distinctly locating those structures within parcel 1208. The respondents, on the other hand, produced a detailed competing account supported by survey material and photographs. Those matters will require testing at the trial. 6. It would be improper to conclude at this stage that the applicant’s originating summons must fail. She has raised a bona fide controversy requiring determination. But the question under the first limb is more exacting: whether the material presently shows that her asserted right is more likely than not to succeed and therefore calls for the broad protection sought. In view of the permissive origin disclosed by her own account, the absence of a pleaded or demonstrated point of repudiation, and the unresolved question whether her activities occurred on parcel 1208 or the road reserve, I am not satisfied that she has established that threshold. 7. That conclusion is sufficient to dispose of the prayer for a broad temporary injunction. Nevertheless, because the orders sought have remained in force for several months and their practical effect is contested, I consider the remaining factors to ensure that the resulting order is proportionate. 8. The threatened injury identified by the applicant is alteration of the land through construction and possible transfer. A transfer during the suit could complicate or frustrate the eventual decree and calls for preservation of the register. Construction stands differently. The interested party had fenced the land and laid a foundation before service of the proceedings. Any expenditure made after notice of the applicant’s claim would be undertaken at her own risk. If the applicant ultimately succeeds, the existence of improvements cannot extinguish title acquired by adverse possession; nor may the interested party found upon self-induced expenditure an equity superior to the eventual decree. 9. The balance of convenience does not favour continuation of the interim order in its present breadth. The evidence common to the competing accounts is that parcel 1208 is a small commercial property and has remained substantially unused for a long period. A restraint against alienation is necessary to keep the decree effective. A blanket prohibition against access, use, materials and all construction, however, imposes continuing economic prejudice while the applicant’s own evidence of present occupation is disputed. Interim relief must protect the suit, not provide either party with the practical equivalent of final judgment. **Preservation of the register** 1. The parcel remains registered in the name of a deceased person and is the subject of succession proceedings and a disputed sale agreement. Although the applicant has not met the threshold for the broad injunction, allowing a transfer or further registrable disposition before the originating summons is determined could multiply the parties and impair the Court’s ability to grant effective relief. 2. The appropriate balance is therefore to preserve the register while lifting the restraint that has sterilised all use of the land. This protects the subject matter without making a preliminary finding that the applicant is in possession or entitled to exclude the registered proprietor’s estate and the purchaser. 3. For avoidance of doubt, permission to resume access or development does not determine ownership or possession. Any works carried out after the date of this ruling shall be entirely at the interested party’s risk. They shall not create an entitlement to compensation, confer priority, defeat the applicant’s claim if ultimately established, or be relied upon to resist implementation of the final decree. **Disposition** 1. In the result, I make the following orders: 2. The Notice of Motion dated 19 March 2026 succeeds only to the limited extent stated below. 3. The temporary injunction issued on 25 March 2026 is discharged insofar as it restrains access to, occupation, use, accumulation of construction materials upon, or development of land parcel Tiriki/Tigoi/1208. 4. Pending the hearing and determination of the originating summons, the Land Registrar, Vihiga shall not register any transfer, charge, lease, subdivision or other disposition affecting land parcel Tiriki/Tigoi/1208, except with leave of this Court. 5. The respondents and the interested party shall not sell, transfer, charge, lease, subdivide or otherwise create any third-party interest over land parcel Tiriki/Tigoi/1208 pending determination of the originating summons. 6. Any access, use, construction or development undertaken upon the parcel before determination of the suit shall be undertaken wholly at the interested party’s risk and shall not confer any equity, priority or right to compensation against the applicant should the originating summons ultimately succeed. 7. No party shall threaten, harass, evict or forcibly remove another from any portion actually occupied as at the date of this ruling without an order of the Court. 8. The parties shall, within thirty days, complete all pre-trial steps necessary for the expeditious hearing of the originating summons, including filing any further affidavits, witness statements, agreed or contested issues, and paginated bundles upon which they intend to rely. 9. The matter shall be mentioned on 29 October 2026 for confirmation of compliance and allocation of a hearing date. 10. Costs of the application shall be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED AT VIHIGA THIS 27TH DAY OF JULY 2026. P. MUSYIMI JUDGE **In the presence of:** Court Assistant: Mr. Kevin Injene Mr. Obandia h/b for Mr. Olando for applicant Mr. Wekesa h/b for Mr. Daniel Chitwah for respondents and interested party