https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3153

Nkaabu (Suing as Legal Representative of Asenath Muthoni Jose Nkaabu alias Asenath Muthoni Joses – Deceased) v Muthoni (Sued as Legal Representative of Muthuri Kithuo – Deceased) (Enviromental and Land Originating Summons E001 of 2026) [2026] KEELC 3153 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELC 3153 (KLR) Republic of Kenya In the Environment and Land Court at Meru Enviromental and Land Originating Summons E001 of 2026 BM Eboso, J May 19, 2026 Between Ashford Mutuiri K Nkaabu (Suing as Legal Representative of Asenath Muthoni Jose Nkaabu alias Asenath Muthoni Joses – Deceased) Plaintiff and Irene Muthoni (Sued as Legal Representative of Muthuri Kithuo – Deceased) Defendant Ruling 1.On 19/1/2026, the estate of the late Asenath Muthoni Jose Nkaabu, through Ashford Mutuiri K Nkaabu, took out this originating summons inviting the Environment and Land Court to determine various questions relating to the doctrine of adverse possession in relation to a portion measuring 0.4 hectares (1 acre) out of land parcel number Abogeta/Lower Kithangari/840 [the suit land]. Together with the originating summons, the estate brought a notice of motion dated 19/1/2026 seeking the following interlocutory orders, pending the hearing and determination of the originating summons: (i) an order of inhibition relating to the suit land; (ii) an order of injunction barring the defendant and her agents against utilizing land parcel number Abogeta/Lower Kithangari/840; (iii) an order barring the defendant and her agents against interfering with the plaintiff’s utilization of land parcel number Abogeta/Lower Kithangari/840; and (iv) an order staying execution of the decree in Nkubu SPMC E & L Case No E055 of 2020 delivered on 17/9/2025. The said application is the subject of this ruling. 2.The application was premised on the grounds outlined in the motion and in the applicant’s two affidavits dated 19/1/2025 and 17/2/2026 respectively. It was canvassed through written submissions dated 11/3/2026, filed by M/s Kiogora Mugambi & Company Advocates. The case of the applicant is that Ashford Mutuiri K Nkaabu is the personal representative of the late Asenath Muthoni Jose Nkaabu [the late Asenath] while Irene Muthoni is the personal representative of the late Muthuri Kithuo [the late Muthuri]. Vide an agreement dated 3/5/2000, the late Muthuri sold to the late Asenath one (1) acre which was to be excised from land parcel number Abogeta/Lower Kithangari/840. The agreed purchase price was Kshs 100,000. The late Asenath finished paying the purchase price in 2005. The late Muthuri subsequently subdivided parcel number 840 to create the following two parcels: (i) Abogeta/Lower Kithangari/1296 measuring 0.4 hectares and Abogeta/Lower Kithangari/1297 measuring 2.09 hectares. The Registry Index Map (RIM) was similarly amended to reflect the above subdivisions. The parties subsequently procured consent of the Land Control Board authorizing transfer of parcel number 1296 to Asenath. At that point, Asenath fell sick and could not raise money to complete registration of the transfer. Asenath nonetheless took possession of the land. 3.The applicant adds that subsequent to that, Asenath died in March 2008 but her children continued to utilize the one acre. The applicant states that while aware that the late Muthuri sold the one acre to the late Asenath, the defendant has threatened to throw the family of Asenath out of the one acre. They urge the court to grant the above interlocutory orders, contending that the late Asenath had acquired the one acre through adverse possession. 4.The respondent opposed the application through her affidavit dated 16/1/2026 and written submissions dated 2/4/2026, filed by M/s Gichunge Muthuri & Co Advocates. The case of the respondent is that the late Muthuri never entered into any sale agreement with the late Asenath over a portion of parcel number 840. The respondent contends that, upon the death of Muthuri, his estate initiated Nkubu PMC Succession Cause No 123 of 2019 in which the applicant presented a protest which was fully considered and dismissed for lack of merit. Upon losing the protest in the Succession Cause, the applicant filed Nkubu SPMC E & L Case No 55 of 2020 claiming the one acre from the estate of the late Muthuri. The said suit was heard on merits and was conclusively determined through a merit judgment dated 17/9/2025 in which the Senior Principal Magistrate court dismissed the suit for lack of merit. 5.The respondent adds that, the applicant was not satisfied with the judgment of the Nkubu Senior Principal Magistrate Court and filed Meru ELC Appeal No E074 of 2025 in this court. The applicant subsequently withdrew the said appeal vide a notice of withdrawal dated 26/1/2026. The respondent points out that the present suit was filed on 19/1/2026 while the notice withdrawing the appeal was uploaded on 4/2/2026. 6.It is the case of the respondent that this suit is res judicata because Nkubu SPMC E & L Case No 55 of 2020 involved the same parties and the same subject matter. The respondent contests the mutation forms and the consent of the Land Control Board presented by the applicant. She denies the allegation that the family of the late Asenath has been in possession of the suit land. She invites the court to visit the locus-in-quo, insisting that the suit land is bushy and unutilized. She urges the court to dismiss the application. 7.The court has considered the application, the response to the application, and the parties’ respective submissions. The court has also considered the relevant legal frameworks and jurisprudence. By and large, an inhibition is an interlocutory injunctive order barring dealings in a land register relating to a registered land parcel. Consequently, the three key questions that fall for determination in the application under consideration are: (i) Whether this court has jurisdiction to grant an order of stay of execution relating to the Judgment and decree in Nkubu SPMC E & L Case No 55 of 2020 on the platform of this originating summons; (ii) Whether the application under consideration meets the criteria for granting an order of stay of execution by this court; and (iii) Whether the application under consideration meets the criterial for granting an ordinary interlocutory injunction. The first and the second questions are intertwined and will therefore be disposed simultaneously. 8.Does this court have jurisdiction to grant an order of stay of execution relating to the judgment and decree in Nkubu SPMC E & L Case No E055 of 2020 on the platform of this suit? Has the criteria for granting an order of stay of execution by this court been met? This court is seized of an originating summons that was filed as an original suit. It is not seized of an appeal against the judgment in Nkubu SPMC E & L Case No E055 of 2020. The stay order which the applicant seeks relates to a final judgment and decree of the Nkubu Senior Principal Magistrate Court rendered on 17/9/2025 in Nkubu SPMC E & L Case No 55 of 2020. The applicant filed Meru ELCL Appeal No. E074 of 2025 challenging the said judgment and decree but subsequently withdrew the appeal. 9.This court’s jurisdiction to grant an order of say of execution is exercised only in two scenarios. The first scenario is when this court is seized of an appeal and is exercising appellate jurisdiction. The platform on which that jurisdiction is exercised is the appeal case that is before the court. The second scenario is when the court has rendered a decision in exercise of either its primary or appellate jurisdiction and the aggrieved party has filed or intends to file an appeal in the Court of Appeal to challenge the decision of this court. The platform on which that jurisdiction is exercised is the case file in which this court’s decision was made. 10.Kenya’s civil legal system does not grant this court jurisdiction to issue an order of stay of execution targeting a judgment or a decree that is not the subject of an appeal before it. Consequently, this court does not have jurisdiction to entertain or grant an order of stay of execution of the decree in Nkubu SPMC E & L Case No 55 of 2020 on the platform of this originating summons. In the absence of jurisdiction, the court is required to down its tools in relation to the plea without venturing into the merits of the plea [See Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) (1989) KECA 48 KLR]. 11.Does the application under consideration meet the criterial for granting an ordinary interlocutory injunction? The relevant criteria was outlined by the Court of Appeal for East Africa in the case of Giella v Cassman Brown (1973) EA 358. First, the applicant is required to demonstrate a prima facie case with a probability of success. Second, the applicant is required to demonstrate that if the plea for an interlocutory injunction is declined, he will stand to suffer injury that may not be adequately indemnifiable through an award of damages. Thirdly, should the court have doubt on either or both of the above, the application is to be determined on the basis of the balance of convenience. 12.Over the years, our superior courts have developed a fourth principle to the effect that, at the stage of disposing the plea for interlocutory injunction, the court should refrain from making conclusive or definitive pronouncements on the key issues in the dispute. The courts have emphasized that definitive and conclusive pronouncements/findings should be reserved for the final disposal of the dispute. 13.Has the applicant demonstrated a prima facie case with a probability of success? The Court of Appeal defined a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) (2003) KECA 175(KLR) as follows:“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case......It is a case 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 as to call for an explanation or rebuttal from the latter.” 14.The plea for interlocutory injunctive orders in this originating summons are anchored on a claim of adverse possession. The estate of the late Asenath wants a determination to the effect that the late Asenath acquired one acre out of land parcel number Abogeta/Lower Kithangari/840 through adverse possession. The estate has come to this court after it initiated, prosecuted and procured a judgment in Nkubu SPMC E & L Case No 55 of 2020 in which it sought orders declaring Asenath to be the legitimate owner of the one acre that is the subject matter of the originating summons. The Senior Principal Magistrate Court rendered a merit judgment in which it rejected the applicant’s claim for lack of merit. Dissatisfied with the judgment of the Senior Principal Magistrate Court, the applicant filed Meru ELC Land Appeal No 74 of 2025 which it subsequently withdrew after filing the present originating summons. 15.The respondent has pointed out that the originating summons and the application under consideration are untenable because of the doctrine of res judicata. The court has reflected on the arguments that were presented. Without making conclusive or definitive pronouncements, it does emerge at this interlocutory stage that the parties and the subject matter in this originating summons are the same as the parties and the subject matter in Nkubu SPMC E &L Case No 55 of 2020. It does also emerge that in the preceding suit, the applicant sought to be determined and decreed to be the legitimate owner of one acre out of parcel number Abogeta/Lower Kithangari/840. So does she seek in the present originating summons. 16.The court in the English Case of Henderson v Henderson (1843) 67 ER 313 emphasized that the doctrine of res judicata applies not only to issues on which the court was actually required by parties to make pronouncements, but also to every issue which properly belonged to the subject of litigation in the previous suit and which the parties, exercising reasonable diligence, might have canvassed in the preceding suit. The court stated thus:“Where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case and will not (except in special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence, or even accident omitted part of their case. The plea of res judicata applies except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment but to every point which properly belonged to the subject of litigation, and which parties exercising reasonable diligence, might have brought forward at the time.” 17.The above principle is the prevailing law in relation to the application of the doctrine of adverse possession, I will say no more on this aspect of the claim because res judicata was only raised as a ground of opposition to the application. 18.Secondly, the estate claims that the late Asenath finished paying purchase price for the land in 2005. It is not clear who received purchase price in 2005 because according to the grant which the applicant exhibited, Muthuri died on 4/9/2003. 19.Thirdly, having paid purchase price in 2005, Asenath was a purchaser up to that time [2005]. She was not an adverse possessor. She subsequently died in 2008. Assuming that she became an adverse possessor after 2005, there could only have been approximately 3 years of adverse possession prior to her death. Succession relating to her estate was not initiated until 2019. The exhibited grant was issued in 2019 and was limited to the filing of a suit, meaning that after Asenath died in 2008, there was no legally recognized personal representative for the purpose of continuity of adverse possession. 20.Fourthly, it does emerge from the exhibited mutation forms that the forms are dated 2005 and they were not registered. Going by the grant which the applicant exhibited, Muthuri died in 2003. If that is the factual position, Muthuri could not have been privy to the mutation and the consent of the Land Control Board that are dated 2005. These are inconsistences that appear to defeat the applicant’s case at this interlocutory stage. 21.The totality of the foregoing is that the applicant has failed to demonstrate a prima facie case with the probability of success. 22.On the aspect of irreparable damage and inadequacy of damages, the applicant has not presented evidence of any developments on or occupation of the one acre. Put differently, the applicant has not demonstrated evidence of the likely irreparable damage that he would stand to suffer if the interlocutory injunctive orders are declined. 23.The court has no doubt on the applicant’s failure to demonstrate a prima facie case with the probability of success at this interlocutory stage. It also has no doubt about the applicant’s failure to satisfy the second limb of the requirement in Giella v Cassman. 24.In the end, for the above reasons, the application dated 19/1/2026 is rejected and dismissed for lack of merit. In tandem with the general principle in Section 27 of the Civil Procedure Act – that costs follow the event, the applicant shall bear costs of the application. DATED, SIGNED AND DELIVERED AT MERU THIS 19TH DAY OF MAY, 2026.B M EBOSO [MR]ELC JUDGE