https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3411

Biriri & another (Suing as the Administrators of the Estate of Francis Biriri Waihenya) v Ngugi (Environment and Land Appeal E001 of 2024) [2026] KEELC 3411 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEELC 3411 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Appeal E001 of 2024 JM Onyango, J June 3, 2026 Between Veronica Nyambura Biriri 1st Appellant Joseph Karonjo Biriri 2nd Appellant Suing as the Administrators of the Estate of Francis Biriri Waihenya and Francis Njoroge Ngugi Respondent (Being an appeal arising from the ruling and the consequential orders issued on 6/12/2023 by the Hon. P.O. Ooko -Senior Principal Magistrate in ELC Case No. E050 OF 2023- Chief Magistrates Court at Kiambu) Judgment Introduction 1.At the heart of this appeal lies a familiar, yet often decisive, question: whether a court, when first invited to intervene by way of temporary injunction, properly declined to do so. The Appellants by an application dated 13th June 2023 and filed on 22nd June 2023, sought, before the trial court, the equitable remedy of a temporary injunction to preserve the suit property known as Land Reference Ndumberi/Ndumberi/T51 situate within Kiambu County pending the determination of the suit. 2.By a ruling delivered on 6th December 2024 in ELC Case No. E050 of 2023 Chief Magistrates Court at Kiambu, the Honourable P.O. Ooko, Senior Principal Magistrate (SPM) declined to grant the orders sought, holding that the application did not meet the threshold for grant of a temporary injunction. 3.The Appellants, dissatisfied with the ruling, approached this Court by way of a Memorandum of Appeal dated 6th January 2024 advancing six (6) grounds as follows:1.The Learned Magistrate erred in law and in fact in finding that the appellant had not satisfied the principles applicable to issuance of a temporary injunction thereby dismissing the application dated 22/6/2023 (sic) with costs.2.The Learned Magistrate erred and fact (sic) when he made reference to the appellant’s claim being based on adverse possession and at the same time claiming a purchaser’s interest whereas the appellant was explaining the occupancy being for a long period.3.The Learned Magistrate erred in law and fact in making a finding that the appellant’s claim was based on adverse possession whereas the suit was not one for adverse possession rather it was based on purchase of the suit property and occupancy dating back over two decades.4.The Learned Magistrate misdirected himself when making a finding that the respondent was the registered proprietor and his title was indefeasible whereas disregarding that the title held was out of a process of transmission.5.The Learned Magistrate erred in relying on a wrong appreciation of the law on the applicability of adverse possession and whether it was in issue in the matter before court. Further the findings made ought to have required a full hearing of the parties’ cases.6.The Learned Magistrate erred by failing to consider the longevity in time the appellant had been on the suit property and the immeasurable loss or damage they were likely to suffer if a temporary injunction was not issued. 4.In essence, the grounds of appeal contend that the trial court misdirected itself in applying the principles of granting a temporary injunction; misapprehended the nature of the Appellants’ claim by treating it as one of adverse possession rather than a purchaser’s interest; and placed undue reliance on the Respondent’s registration, without adequately considering the Appellants asserted occupation and the question of potential prejudice at the interlocutory stage. Background 5.The dispute before the trial court arose from a suit dated 13th June 2023 in which the Appellants laid claim to the property known as Land Reference Ndumberi/Ndumberi/T51 (hereinafter ‘the suit property’), situate within Kiambu County. 6.The claim was anchored on asserted long occupation, the Appellants contending that they and their predecessors had been in continuous and uninterrupted possession of the suit property since 1958. It was further alleged that the property had been purchased in that year by Francis Biriri Waihenya (deceased) from Francis Makindu Gatoha (deceased). The Appellants were apprehensive that there was imminent danger that their family was at risk of being evicted from the suit property by the Respondent. Pending the determination of the suit, the Appellants moved the court by way of an application dated 13th June 2023 seeking interlocutory injunctive relief. 7.The application was vehemently opposed by the respondent’s vide the replying affidavit of Francis Njoroge Ngugi sworn on 31st July 2023 in which the Respondent denied the Appellants’ asserted interest in the suit property and maintained that he is the duly registered proprietor thereof. The Respondent contended that the suit property was previously registered in the name of his father, Ngugi Nganga (deceased) and that he subsequently acquired title thereto through transmission pursuant to succession proceedings relating to his father’s estate. 8.The Respondent further contended that the Appellant had failed to establish a prima facie case and that the conditions for the grant of a temporary injunction had not been met. 9.Upon consideration of the application and the rival affidavits, the learned trial magistrate, in a ruling delivered on 6th December 2023, dismissed the application, holding that the Appellant had not satisfied the threshold for the grant of interlocutory injunctive relief 10.Dissatisfied with that determination, and contending that it rests upon misdirection both in fact and in law, the Appellant has invoked the appellate jurisdiction of this Court, seeking to have the ruling set aside. 11.The appeal was canvassed by written submissions duly filed by both parties which I have given due consideration. Issues for Determination 12.Having considered the Memorandum of Appeal, the Record of Appeal, the filed submissions and the relevant authorities, the following key issue that emerges for determination is: Whether the learned trial magistrate properly applied the principles governing the grant of interlocutory injunctions Analysis and Determination 13.This being a first appeal, this Court is under a duty to re-evaluate and re-examine the entire record placed before the trial court and to draw its own independent conclusions therefrom, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses and must therefore make due allowance for that limitation. 14.That duty of reconsideration was succinctly stated in Selle v Associated Motor Boat Co. Ltd [1968] EA 123 where it was emphasised that a first appellate court is required to reconsider the evidence afresh, evaluate it itself, and draw its own conclusions. 15.The same principle has been elaborated in later decisions. In Ng’ati Farmers’ Co-Operative Society Ltd v Ledidi & 15 Others [2009] KLR 331, the Court reiterated that:“An appeal to this Court from a trial by the High Court is by way of re-trial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that, this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witness and should make due allowance in that respect. In particular, this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 16.Similarly in Kenya Ports Authority vs. Kuston (Kenya) Limited [2009] 2 EA 212 it was reiterated that:“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 17.The foregoing authorities establish a consistent thread. A first appellate court is enjoined to undertake a fresh and independent evaluation of the evidence on record, draw its own conclusions therefrom, and only interfere with the findings of the trial court where it is apparent that such findings are not supported by the evidence, are based on a misapprehension of the material, or are otherwise plainly wrong. At the same time, the Court must remain within the confines of the record and exercise due caution, particularly in matters where the trial court had the advantage of observing the witnesses. 18.In the application before the trial court, the Appellants questioned the propriety of the registration of the suit property in the name of Ngugi Nganga (deceased) contending that the circumstances surrounding that registration called for interrogation, and that, absent such scrutiny, there was a real risk of injustice to the current occupants of the suit property. 19.The Appellants further asserted that there had been prior proceedings over the suit property with one abating after the death of the Respondent’s father, Ngugi Nganga (deceased) and another case being HCCC 3867 of 1982 which was dismissed in 2001 for want of prosecution. 20.The Appellants submit that the application sought the injunctive relief pending the determination of the registration of the Respondent as the proprietor. 21.The Appellants also assail the learned magistrate’s foray into the doctrine of adverse possession. It is contended, first, that the question of adverse possession did not arise for determination on the application before the court; and, secondly, that in any event, the trial court lacked jurisdiction to pronounce itself on that issue. 22.The Appellants have also invited this Court to consider whether the learned trial magistrate had jurisdiction to pronounce herself on the question of adverse possession and urges this Court to be guided by the decision of the Court of Appeal in Sugawara v Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) 23.This Court, sitting as a first appellate court, is not only entitled but duty-bound to interrogate the question of jurisdiction, even where it was not fully ventilated below. As was underscored by the Court of Appeal in Sugawara (supra):“As to whether the first appellate court rightly concluded that the Magistrates’ Court did not have jurisdiction to hear claims for adverse possession, we begin from the standpoint that questions of jurisdiction can be raised at any time, since it is trite law that jurisdiction is everything.” 24.Essentially, a court of appellate jurisdiction is not constrained by the posture in which the issue was taken before the trial court. Once jurisdiction is implicated, it must be confronted at the threshold, for a court acting without jurisdiction acts in vain. 25.The question that therefore falls for determination is whether, in addressing the issue of adverse possession, the learned trial magistrate ventured into a matter that was either not properly before him or lay beyond the scope of his jurisdiction at that interlocutory stage. 26.In Sugawara (supra) the Court of Appeal held that, on a proper construction of section 38 of the Limitation of Actions Act, claims for adverse possession fall within the jurisdiction of the Environment and Land Court to the exclusion of the Magistrates’ Courts. The Court reasoned that had Parliament intended otherwise, it would have said so expressly, and further noted that the pecuniary basis of magistrates’ jurisdiction renders such claims unsuitable, given that the value of land is often indeterminate at the point of filing. 27.Jurisdiction is not a matter of convenience; it is a matter of command. A court either has it or it does not. Where it does not, even the most careful reasoning cannot cure the defect. 28.It follows that, to the extent that the trial court’s treatment of adverse possession assumed a determinative character, it traversed ground it was not entitled to occupy. 29.That conclusion, nevertheless, must be situated within the central question in this appeal, namely whether the learned trial magistrate properly applied the principles governing the grant of interlocutory injunctions 30.Applications for temporary injunctive relief are anchored in the court’s discretionary jurisdiction under Order 40 of the Civil Procedure Rules. 31.The principles governing the grant of an interlocutory injunction were set out in Giella v Cassman Brown & Co. Ltd [1973] EA 358, where the Court articulated the guiding threshold in clear terms. First, an applicant must establish a prima facie case with a probability of success. Secondly, the applicant must demonstrate that, unless the order is granted, they stand to suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, where the Court is in doubt, it will determine the application on a balance of convenience. 32.In the present matter, the Appellant’s asserted interest in the suit property was premised on two related assertions. First, that they had been in continuous and uninterrupted occupation of the suit property for a prolonged period, allegedly dating back to 1958. Secondly, that such occupation was traceable to a historical purchase transaction involving the original proprietor. The Respondent, in opposition, denied the Appellant’s claim and relied on his registration as proprietor of the suit property. 33.The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR elaborated on the meaning of prima facie case as follows:“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.” 34.From the foregoing, it is clear that a prima facie case is not established by a mere assertion of rights or a contested narrative. It must disclose an arguable right, threatened or infringed, which calls for judicial protection at the interlocutory stage, without descending into a conclusive examination of the merits of the dispute. 35.The learned trial magistrate found that the Appellant had not established a prima facie case and placed weight on the Respondent’s registered title. That approach, however, required careful calibration. 36.Registration of title is prima facie evidence of ownership under section 26(1) of the Land Registration Act, but it is not, at the interlocutory stage, an unassailable answer where competing claims are asserted and require interrogation at trial. 37.Equally, the Appellant’s assertion of long occupation and purchaser interest could not, at that stage, be treated as determinative of rights. The court was required to assess whether those assertions, taken at their highest, disclosed a legally cognisable claim capable of being sustained at trial. That is the proper province of the prima facie inquiry: not resolution, but evaluation of sufficiency. 38.It is apparent from the ruling that the learned trial magistrate placed decisive reliance on the Respondent’s registered title and treated it as conclusive evidence of ownership. While such registration is prima facie evidence of proprietorship, it does not, at the interlocutory stage, extinguish the need to assess whether the Appellant’s competing claim raises an arguable case. 39.To the extent that the learned trial magistrate treated the Respondent’s title as dispositive and thereby declined to interrogate the Appellant’s competing claim within the limited confines of a prima facie assessment, the court misdirected itself in principle. 40.I have carefully examined the trial record. this Court is persuaded that the Appellant’s claim disclosed an arguable right warranting interrogation at trial. The asserted long occupation, coupled with the alleged purchaser’s interest and the competing claim grounded on registered title, raised triable issues that could not properly be resolved at the interlocutory stage. Without determining the merits of the competing positions, the Court finds that the threshold of a prima facie case, as contemplated under Giella, was satisfied. 41.Turning to the second limb, the Court must establish whether the Appellants stand to suffer irreparable injury which would not adequately be compensated by an award of damages. 42.The Court in Nguruman (Supra) similarly expounded on what constitutes irreparable injury as follows:“Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy." 43.In essence, irreparable injury is not presumed; it must be specifically demonstrated on the basis of material before the court, and not on conjecture or apprehension 44.On irreparable injury I turn to what constitutes the Appellants’ claim. In the supporting affidavit of Joseph Karonjo Biriri sworn on 13th June 2023 the appellants averred as follows:-“ 6.…the occupation of our families on the suit property dates back to the colonial period. The suit property was originally sold to my father and his brother by Paris Makindi Gatoha (deceased) in1958. 10.……. The families have each developed, improved on and cultivated their respective portions of land on the suit property. 11.The occupation of these families is at risk of eviction by the administrator who could render them impecunious, destitute, internally displaced and/or evictees in their only known abode or homes.” 45.The Appellants’ claim of long occupation of the suit property, alleged to be their residence, places the matter within the realm of harm that is not easily reduced to monetary compensation. Dispossession in such circumstances, if ultimately found to be unjustified, would amount to injury of an enduring character. The threshold of irreparable harm was therefore met. 46.The Appellants submit that the trial court misdirected itself in dismissing the application and accordingly beseeches this Court to set aside the impugned ruling and allow the appeal. 47.This Court must emphasise, as a matter of settled principle that it will not interfere with the exercise of discretion by a trial court merely because it might itself have reached a different conclusion. It will only do so where it is shown that the decision was plainly wrong, whether by reason of a misdirection in law, a failure to take into account relevant considerations, the taking into account of irrelevant matters, or some other error which renders the decision unsustainable. 48.Every exercise of discretion carries with it a presumption of correctness, and that presumption is not displaced save upon clear demonstration that the discretion was exercised on wrong principles or in a manner amounting to an abuse of that discretion. See: Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR; United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd[1985] eKLR. 49.Looking at the matter as it stood before the trial court, there were plainly competing claims which called for careful restraint: questions of occupation, of asserted interest, and of the legal effect of registration. These were live issues, not conclusions. 50.The trial court, by treating registration of the Respondent as the proprietor as determinative and thereby shutting the door on a fuller inquiry into whether a prima facie case had been shown, stepped outside the proper bounds of discretion. In doing so, it entered upon disputed questions of ownership and adverse possession which were for trial, not premature resolution. 51.In such circumstances, this Court is not only entitled, but bound, to intervene. 52.Accordingly, the appeal succeeds. The ruling of the trial court delivered on 6th December 2024 is hereby set aside and substituted with an order allowing the Appellant’s application for a temporary injunction pending the hearing and determination of the suit. 53.The costs of this appeal shall be awarded to the Appellants. It is so Ordered. DATED, SIGNED AND DELIVERED, AT THIKA THIS 3RD DAY OF JUNE 2026........................J. M. ONYANGOJUDGE