https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3501

Marwa v Muhono (In His Capacity and as the Administrator of the Estate of Mwita Muhono) & another (Civil Suit E018 of 2025) [2026] KEELC 3501 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3501 (KLR) Republic of Kenya In the Environment and Land Court at Migori Civil Suit E018 of 2025 FO Nyagaka, J June 9, 2026 IN THE MATTER OF THE LIMIATION OF ACTIONS ACT AND IN THE MATTER OF TITLE NO. BWIREGE/BUHIRISENYE/142 AND IN THE MATTER OF A CLAIM FOR ADVERSE POSSESSION Between Consolata Gati Marwa Applicant and Kisiri Mwita Muhono (In His Capacity and as the Administrator of the Estate of Mwita Muhono) 1st Respondent Peter Mwita Getangita (As The Administrator Of The Estate Of Mwita Muhono) 2nd Respondent (on an application for an order of injunction and inhibition) Ruling 1.The applicant filed a notice of motion dated 29th January 2026. She brought it under Order 40 Rule1 and Order 51 of the Civil Procedure Rules, 2010, and Article 40 of the Constitution of Kenya. She sought the following Orders:1.…Spent.2.…Spent.3.That this Honorable Court be pleased to issue a temporary injunction restraining the respondents by themselves, their family members, servants or agents otherwise howsoever from trespassing and encroaching onto, wasting, disposing, alienating, subdividing and/ or in any other way interfering with title number Bwirege/Buhirisenye/142 where the applicant lives and farms pending the hearing and determination of the suit4.…Spent.5.That this honourable court be pleased to issue an injunction restraining the respondents by themselves, their family members, servants or agents or otherwise howsoever from evicting the applicant from 0.38 hectares of Bwirege/Buhirisenye/142 where the applicant lives and farms pending the hearing and determination of this suit.6.…Spent.7.That the Honorable Court does issue an order of inhibition against any transactions on Bwirege/Buhirisenye/142 or any resulting title deeds pending the hearing and determination of this suit.8.That costs of this application be provided. 2.The application was based on the grounds that the applicant had been in an open continuous and uninterrupted occupation of 0.38 hectares of suit parcel of land. The respondents had proposed to subdivide and distribute the Estate of Mwita Muhono without taking into account the applicant’s interest on the parcel. The grant in the Succession Cause was confirmed despite this court issuing Orders of stay. The applicant had a prima facie case that is judiciously enforceable given her continued and interrupted occupation of the land since 1995. The applicant would suffer prejudice if the order of injunction was not granted because she has an overriding interest on the suit property having built a permanent residential home on it. The interest of justice requires that the issuance of the order of inhibition would preserve the subject matter. The balance of convenience tilts in favor of the applicants who would stand to suffer greater loss than the respondent if the junction was not issued. That if the Order of inhibition is not granted the proceedings would be overtaken by events and rendered nugatory. In the interests of justice, the orders prayed ought to be granted. 3.The Applicant supported application with an affidavit she swore on 29th January 2026. To it she attached a copy of her Identity Card (ID card) which she marked as CGM 1. She deposed that she had been in occupation of the land since 1995. Further, that the respondents had disregarded the suit herein and taken it upon themselves to subdivide the property amongst themselves. She added that she and her husband bought the land but the respondents declined to complete the sale. She added that she would suffer loss if the orders were not granted. 4.The respondent did not file any response to the application but instead they filed submissions which were dated 19th February 2026. The Applicant also filed her submissions dated 16th February 2026. 5.The Applicant submitted, after giving the background to the application, that the issues for analysis were whether the Applicant had locus standi to institute a claim for adverse possession in her independent capacity; whether she had proprietary interest measuring 0.38 hectares within BWIREGE/BUHIRISENYE/142; and whether she was entitled to the reliefs sought. 6.On whether the Applicant has locus standi to institute a claim for adverse possession in her own independent capacity, she submitted that it was pursuant to Section 38 (1) of the Limitation of Actions Act, CAP 22 Laws of Kenya that she moved this Court, and not by virtue of being a beneficiary due to inheritance. Further, if the Applicant were claiming through her late husband’s estate, then indeed she would require letters of administration. She added that she entered into occupation of the land in the year 1995 and has remained in continuous occupation for a period of thirty (30) years, thereby extinguishing the owner’s title by lapse of time. She argued that she had demonstrated that she had been in actual possession of the suit property, openly, continuously and exclusively, in a manner adverse to the Respondent’s title for a period well beyond the statutory 12 years. She relied on the case of Kasuve vs Mwaani Investments Ltd & 4 Others (2004) eKLR 184. 7.On whether she had proprietary interest measuring 0.38 hectares within BWIREGE/BUHIRISENYE/142, she contended that she had moved this court requesting the court to determine the issue of proprietary interest over the portion measuring 0.38 hectares out of all that parcel of land known as BWIREGE/BUHIRISENYE/142 by way of adverse possession having had met all the threshold to wit, she has been in actual possession, open and continuous occupation, and exclusive use of the suit property for over 30 years now. She added that the initial sale transaction was never completed within the stipulated completion period. Consequently, the Applicant’s continued possession became adverse upon the lapse of the completion period and has remained so without interruption until recently, when the Respondents commenced the process of sub-dividing the entire suit property, to the detriment of the Applicant’s accrued interest. She added that she had demonstrated a prima facie proprietary interest arising from long, uninterrupted adverse possession, which deserves protection pending the hearing and determination of the main suit. 8.On whether she was entitled to the reliefs sought she submitted that having established a prima facie case in this matter by demonstrating thirty (30) years of uninterrupted occupation, the balance of convenience tilts in her favour, being in possession of the suit property, and it is trite law, that the court protects possession pending determination of a dispute. She prayed for the prayers sought given that she had fulfilled the requirements in GIELLA v CASSMAN BROWN & CO. LTD [1973] EA 358. 9.On their part the Respondents argued the Applicant was not a beneficial owner of land parcel known as L.R. NO. BWIREGE/BUHIRISENYA/142 or any other portion of land muted (sic) from the said land. Further, this Court did not issue any stay orders staying proceedings in Kehancha Succession Cause No. E071 OF 2023 as alleged by the Applicant. Further, the applicant failed to annexed such an order to her Applicant. The orders sought herein had already been over taken by events since the parent land parcel known as L.R NO. BWIREGE/BUHIRISENYA/142 has already been muted. The Applicant filed Notice of Motion dated 1st July,2025 seeking for stay orders and she abandoned it unheard and determined in this same matter and instead filed this instant Application. 10.They submitted further that the Applicant filed an Affidavit in opposition to summons for confirmation of Grant in respect to Kehancha Succession Cause No. E0071 OF 2023 and confirmed to Court that the claimed portion of land was purchased by her late Husband whose name remains unknown. They argued that the applicant has sworn an affidavit in the Succession cause that it was the applicant’s late husband who acquired the suit land by way of sale as a purchaser for value as hence she lacked locus standi to sue and/or to mount the instant claim on behalf of her un anonymous late husband whom she claims bought a portion of land parcel known as L.R NO. BWIREGI/BUHIRISENYE/142. 11.They reproduced paragraph 7 of the Applicant’s deposition and argued that the Applicant ought to have waited for the person who sold the claimed portion to her alleged late husband to get his tittle deed then file a land matter against him or her hence this entire case is premature on ground that the suit land is still registered in the names of a deceased person. They argued that the land in issue was acquired by the Applicant's late husband as alleged hence the Applicant has to capacity to mount this Case without grant of letter of administration intestate or Ad-litem. 12.Further, that the Applicant claimed she acquired a portion of the suit land jointly with her late husband by way of Sale from strangers who were no the registered owners of the suit land while knowing that the said people were never clothed with legal capacity to dispose of the said land to him since they were not the registered proprietors of the land nor were they duly appointed administrators of the estate of the late MWITA MOHONO. Further, the Applicant purchased the said portion of land after the death of the registered proprietor and before the confirmation of the Grant of Letters of Administration herein hence the purported vendors had no locus standi to sell the said portion of the estate of the late MWITA MOHONO -Deceased. 13.It is also clear that the Applicant is claiming a purchaser's interest and that they purchased a portion of the said land from strangers and not from the deceased of which renders the entire Application a bogus one and illegal. The Sale of part of the Estate violated the provisions of Law of Succession Act as it was pure intermeddling with the deceased estate contrary to the law of Succession. They too relied on Giella v Cassman Brown (supra) and Joel Kipkurui Arap Koech V Alice Wambui Magandu & 3 OTHERS (2018) EKLR; and the Court of Appeal case of Mrao Ltd vs First American Bank Of Kenya Ltd & 2 Others 2003 KLR 125. 14.They then argued that the Applicant had terribly failed to present to this Court a prima facie evidence to warrant issuance of injunctive orders sought herein, or loss that she would suffer. They prayed that the application be dismissed. Issue, Analysis And Determination 15.The law on the grant of temporary injunctions is enunciated in the case of Giellav. Cassman Brown & Co. Ltd(1973) EA 358. In it the court held that for a party to succeed for the grant of such an order he should satisfy 3 conditions, namely, he has a prima facie case with a probability of success, and even when he demonstrates this, he has to show that without the injunction in place he will suffer loss which may not be compensated by way of damages. In case the facts leave the Court in doubt it should decide the matter on a balance of convenience. 16.This position is restated in many cases. For instance, in Nguruman LimitedV. Jan Bonde Nielsen & 2 Others,CA NO. 77 OF 2012, the Court emphasized the importance of satisfying all the three requirements in sequence, for an order of injunction to issue. It stated: -“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;(a)establish his case only at a prima facie level,(b)demonstrate irreparable injury if a temporary injunction is not granted, and(c)ally any doubts as to (b) by showing that the balance of convenience is in his favour.These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.” (Emphasis added). 17.Lastly, in the case of SHOWIND INDUSTRIES V GUARDIAN BANK LIMITED & ANOTHER (2002) 1 EA 284, Ringera J. (as he was then was) stated as follows:-“...an injunction is granted very sparingly and only in exceptional circumstances such as where the Applicant’s case is very strong and straight forward. Moreover, as the remedy is an equitable one, it may be denied where the Applicant’s conduct does not meet the approval of Court of equity or his equity has been defeated by laches”. 18.In applying the above steps, it is clear to me that the applicant’s contention which is not controverted because of lack of any replying affidavit thereto is that she has been in open, uninterrupted occupation of 0.30 Ha of land parcel No. Bwirege/ Buhirisenye /142 from the year 1995 and she has built a permanent home on it. This, when compared with the applicant’s claim of adverse possession makes this Court to find that she has established a prima facie case with a probability of success. Further, the establishment of a permanent home on the suit land exposes her to damage which cannot be compensated by way of damages in case it is destroyed for it will cause mental anguish to both the applicant and the family given family attachment thereto. Moreover, the balance of convenience tilts in favour of the applicant. I thus grant the injunction as prayed in prayer 4. 19.Regarding the prayer for an order of inhibition, Section 68 of the Land Registration Act, 2012 gives this court the power to inhibit registered dealings in land in the following terms:‘‘68 power to inhibit registered dealings(1)The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.(2)A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register.’ 20.Thus, in the interest of preservation of the subject matter, a court can issue an order of inhibition. Section 76 of the land registration provides for restrictions and is couched as hereunder:6.Restrictions(1)For the purposes of compulsory acquisition the prevention of any fraud or improper dealing or for any other sufficient cause, the Registrar may, either with or without the application of any person interested in the land, lease or charge, and after directing such inquiries to be made and notices to be served and hearing such persons as the Registrar considers fit, make an order (hereinafter referred to as a restriction) prohibiting or restricting dealings with any particular land, lease or charge. 21.Inhibitory orders are necessary to safeguard dealings in the subject matter of the suit pending further orders by the court. Granting such an order would ensure that future orders of the court will not be in vain. This position was affirmed by the court in Miriti & another v Kalayu (Civil Appeal E013 OF 2023) [2023] KEHC 26632 (KLR) (14 December 2023) (Ruling) where it held that:“Section 68(1) of the Land Registration Act,2012, gives this court the discretion to inhibit registered dealings on land for a particular time or until the occurrence of a particular event. As such, an inhibition order is an order which is in the nature of a prohibitory injunction restraining dealings on land pending further orders by the court. The purpose of the said order is to preserve the property from acts that would otherwise render a court order incapable of being executed and/or to give an opportunity to hear and decide the matter....’’ 22.Similarly, in Githinji v Mararo (Environment and Land Appeal E026 of 2021) [2025] KEELC 6941 (KLR) (9 October 2025) (Ruling), the court outlined the conditions necessary for the grant of inhibitions. It held that:The conditions necessary for the grant of an order of inhibition were set out in the case of Japhet Kaimenyi M'Ndutho v M'ndatho M'Mbwiria(2012)eKLR, which are:“In an application for orders of inhibition, in my understanding, the applicant has to satisfy the following conditions: -a) That the suit property is at the risk of being disposed of, alienated or transferred to the detriment of the applicant unless preservatory orders of inhibition are issued b) That the refusal to grant orders of inhibition would render the applicant’s suit nugatory c) That the applicant has an arguable case.The court has the power to grant orders of inhibition against a suit land restricting registration of any dealing with suit land for a particular time or until the occurrence of a particular event or generally until further orders." 23.This Court has considered the application in entirety. It notes that the applicant’s claim over the respondents’ parcel of land is adverse possession thereof. Equally, the respondents have not demonstrated they are not the registered owners of the suit property as of now, which the Applicant has proved on a balance of probability. 24.From their submissions the Respondents argue that the Applicant has no locus standi to institute the suit given that she is not a beneficial owner. The plaintiff’s claim as I understand it is that she claims the suit land by virtue of adverse possession, having bought the same in an incomplete transaction in 1995 and having resided thereon since. 25.Further, the Respondents submit that the applicant intermeddled with the Estate of the deceased person and therefore was not entitled to the orders are sought. They also argue that her occupation of the land is tantamount to intermeddling with the estate. My understanding of her claim is that she bought he suit land. As to whether her occupation thereof is intermeddling with the estate, it is an issue of evidence to be adduced at the trial. Moreover, the Respondents do not dispute the that they intend to subdivide the land and/ or deal with it in any other manner detrimental to its existence. It is for that reason that this Court hereby grants an order of inhibition to be registered on land parcel No. Bwirege/Buhirisenye/142 pending the hearing and determination of this suit. And if for any reason the parcel of land has been subdivided and then the order of inhibition be registered on each and subsequent parcels of land that arose from the subdivision of the said parcel of land Bwirege/Buhirisenye/142 or other subsequent ones as long as their parent title was Bwirege/Buhirisenye/142, in order to prevent further disposition or subdivision thereof. 26.The upshot is that the application succeeds and there be and is hereby issued the following orders:a.That this Honorable Court hereby issues a temporary injunction restraining the respondents by themselves, their family members, servants or agents otherwise howsoever from trespassing and encroaching onto, wasting, disposing, alienating, subdividing and/ or in any other way interfering with the portion of land over title number Bwirege/Buhirisenye/142 where the applicant specifically occupies or lives and farms pending the hearing and determination of the suitb.That this honourable court be pleased to issue an injunction restraining the respondents by themselves, their family members, servants or agents or otherwise howsoever from evicting the applicant from the specific portion measuring approximately 0.38 hectares of Bwirege/Buhirisenye/142 where the applicant lives and farms pending the hearing and determination of this suit.c.That the Honorable Court does issue an order of inhibition to be registered against any transactions on Bwirege/Buhirisenye/142 or, if the parcel of land has been subdivided, to be registered on any resultant titles (of the subdivision or their subsequent ones, pending the hearing and determination of this suit.d.The Respondents to bear the costs of this application. 27.This Originating Summons be mentioned on 30th July 2026 for compliance with Order 11 of the Civil Procedure Rules. The parties to file trial bundles within the next 30 days and exchange. Mention Notice to issue in seven days. 28.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 09TH DAY OF JUNE 2026.HON. DR. IUR NYAGAKAJUDGEFrom 09:46 AM, in the presence ofMs. Onyangore for the ApplicantNo appearance for Respondent though served.