https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3919

Wamiya v Wamiya (Sued as Administrator of the Estate of Josiah Dianga - Deceased & 7 Others) (Environment and Land Case E034 of 2025) [2026] KEELC 3919 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3919 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Case E034 of 2025 A Nyukuri, J June 17, 2026 Between Dickson Walter Wamiya Applicant and Dickson Walter Wamiya (Sued as Administrator of the Estate of Josiah Dianga - Deceased & 7 Others) Respondent Ruling Introduction 1.Before court is a Notice of Motion application dated 27th October 2025 filed by the applicant seeking the following orders:a.Spentb.Spentc.That a temporary injunction be and is hereby issued against the 1st, 2nd, 3rd, 4th, and 5th respondents the estate of the late Josiah Dianga, Amos Odendi Dianga, Lazarus Okumbe Dianga, Timothy Oyier Wagwana And Andrea Walwanga their agents, assignees and or servants selling, ploughing, bringing third parties, encroaching, constructing, fencing off, moving the boundaries and or dealing in any other way with that parcel of land known as L.R KISA/DOHO/195 whole measuring 0.16 Ha and part of KISA/DOHO/197 pending the hearing and determination of this suit.d.That the costs of this application be provided for. 2.The application is predicated on the supporting affidavit by the applicant sworn on 27th October 2025. The applicant’s case is that the 1st to 5th respondents are his neighbours. That the late Josiah Dianga was the father of the 2nd and 3rd respondents and was registered as proprietor of parcel of land known as KISA/DOHO/195 measuring 0.16 Ha on 11th February 2015. That the applicant has lived on the suit property all his life as he was born there. 3.That the 4th and 5th defendants live on part of parcel No. KISA/DOHO/197 which is registered in the name of Andrea Walwanga the 5th respondent. That the other part of parcel KISA/DOHO/197 is occupied by the applicant and his family. 4.Further that he has lived on the whole of parcel KISA/DOHO/195 and part of KISA/DOHO/197 for over 40 years. That his father passed away in March 2020 and from that time, the 1st, 2nd, 3rd, and 4th, defendants began moving their boundary and tried to fence and plough their side of the land on parcel No. KISA/DOHO/197 and have been harassing his workers. That there is a fence dividing his portion from the 4th and 5th respondents’ potion on parcel KISA/DOHO/197 which the said respondents are trying to move. That the 1st to 5th respondents have never occupied, utilized or planted crops on the suit properties. That neither him, his father or mother have been asked to vacate the suit property. 5.That his father established their home on the suit property in 1970 and that he has been living there ever since and that there are houses and graves of his family members on the property where he lives. That his father and mother were buried on the suit property. 6.He attached the official search certificates for the two suit properties; letters by the area chief; and several photographs. 7.The application was opposed. The 2nd and 3rd respondents filed replying affidavit sworn by Amos Odendi Dianga dated 13th February 2026. He stated that Josiah Dianga died on 13th October 2013 and that before his demise, he was proprietor of parcel KISA/DOHO/195, where he was farming till he passed on and thereafter his children continued with the farming. That although they do not reside on parcel KISA/DOHO/195, they have been in lawful occupation of the same by consistently farming the same. 8.The 2nd and 3rd respondents maintained that by the time of filing the instant application, he has already ploughed the land. That they reside on parcel KISA/DOHO/224 but that that does not negate the fact that they are in possession of parcel KISA/DOHO/195. That it was not true that the applicant’s parents and family members were buried on the suit property. That the applicant has never occupied the suit property and that it is the respondents who have been in uninterrupted possession thereof. That no proof that boundaries have been interfered with has been availed. 9.The 4th and 5th respondents filed replying affidavit sworn by the 4th respondent on 13th February 2026. He deponed that the 5th respondent was his brother and that Stephen Wangwane his late father died on 13th June 1982. That they filed Succession proceedings vide Butere MC Succ No. 175 of 2018 in regard to parcel No. KISA/DOHO/197 That the said property was thereafter transmitted to the 5th defendant his elder brother. That the applicant did not file objection to the succession proceedings. 10.Further that in the early 1970s their late father Stephen Wangwane and the applicant’s late father James Wamiya Ondoro entered into an informal understanding where James Wamiya agreed to secure employment for the sons of Stephen Wangwane in exchange for a small portion of land to be excised from parcel KISA/DOHO/197, but failed to perform his part of the bargain. That the two fathers agreed that James will retain the portion of land if his children compensate him before ownership is granted. 11.It was their position that James Wamiya was their neighbor and his parcel of land is KISA/DOHO/196 which is adjacent to parcel KISA/DOHO/197. That James established a homestead on his parcel KISA/DOHO/196 which extended slightly into parcel KISA/DOHO/197, but was buried on KISA/DOHO/196 for reasons that the 4th respondent’s father is yet to be compensated. That the applicant and his brothers have established their home on parcel KISA/DOHO/196 and not on KISA/DOHO/197. That in January 2021, the children of the late James and Stephen met and agreed that the family of James will compensate the family of Stephen in the sum of Kshs. 1, 200, 000/=, which amount has not been paid to date. 12.In a rejoinder, the applicant swore a further affidavit dated 13th March 2026. He stated that together with his family, they have lived on parcel KISA/DOHO/195 all their lives since birth. That it was not true that the 2nd respondent had ploughed the suit property. That in 2021, the 2nd respondent tried to occupy parcel KISA/DOHO/195 but was repulsed by the area Chief. He denied the 4th respondent’s assertion that there was an agreement for compensation of Kshs. 1, 200, 000/= terming it an afterthought. 13.He insisted that his family members and his father were buried on parcel KISA/DOHO/197 as can be seen from the photographs he availed. That his father established his homestead on parcel KISA/DOHO/197 where his homestead is also situated. That in 2021, he complained to his area chief of being harassed by the respondents. That he was not aware of the succession proceedings by the 4th respondent. That together with his family they have developed the suit property to the tune of Kshs. 4, 000, 000/=. He attached photographs. 14.The application was disposed by way of written submissions. On record are submissions filed by the applicant dated 13th March 2026 which the court has duly considered. Analysis and determination 15.The court has carefully considered the application, the replying affidavits as well as submissions. The issue that arises for this court’s determination is whether the applicant has met the conditions for grant of temporary injunction pending hearing and determination of this suit. 16.Order 40 Rule 1 of the Civil Procedure Rules grants this court the jurisdiction and discretion to grant orders of temporary injunction where it is shown that the subject matter of the suit is at risk of waste, damage, alienation, disposal or sale in execution of a decree; and where it is demonstrated that if an injunction is not granted, there would likely be a delay or obstruction in the execution of any decree that may eventually be passed in favour of the plaintiff. 17.To obtain a temporary injunction, it is trite that an applicant ought to demonstrate that they have a prima facie case with chances of success; that they stand to suffer irreparable loss that may not be compensated in damages and where the court is in doubt, it ought to decide on a balance of convenience. (See Giella v Cassman Brown [1973] EA 158). 18.A prima facie case was described in the case of Mrao Ltd v First American Bank of Kenya and 2 Others (2003) KLR as follows;“A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 19.In the instant case, the application herein is predicated on a claim of land under the doctrine of adverse possession. The applicant alleged to have occupied the whole of parcel KISA/DOHO/195 and a portion of parcel KISA/DOHO/197 together with his father’s family. The occupied area/acreage of the latter is not defined. 20.The 2nd to 5th respondents vehemently denied the applicant’s allegation of occupation of the two suit properties. They insisted that the applicant’s family’s home is on parcel No. KISA/DOHO/196 which belong to the applicant’s father. In rebuttal, the applicant provided photographs to allegedly demonstrate that his home is on parcels KISA/DOHO/195 and 197 and not on parcel No. KISA/DOHO/196. 21.At this stage the court does not make conclusive determinations on matters of fact, but it ought to be satisfied that the applicant has established a prima facie case with chances of success. A claim for adverse possession is based on adverse occupation by a trespasser on another’s land for a period of 12 years. Therefore, the applicant was obligated to demonstrate that apparently, his occupation as pleaded is on parcel Nos. KISA/DOHO/195 and 197. To show the alleged occupation he provided photographs. This court takes the view that photographs of houses cannot show whether they are parcel No. KISA/DOHO/195, KISA/DOHO/196 or KISA/DOHO/197. 22.Regarding occupation, the onus of proof was on the applicant, yet no survey or valuation reports were availed to rebut the respondents’ assertions that the applicant’s houses and or occupation was on parcel KISA/DOHO/196. Besides, no specific acreage occupied has been stated in regard to the applicant’s alleged possession of part of parcel KISA/DOHO/197. Court orders are not made for speculations. From the applicant’s narration of his case, the impression created is that he was unwilling to make relevant disclosures. 23.A party approaching the court for an equitable remedy of temporary injunction ought to make disclosure of all relevant material. The applicant stated that he was born on the suit property which is registered in the respondents’ fathers’ names. He however does not give any background or circumstances that led to that state of affairs. Ordinarily, people do not just find themselves born or occupying land owned by other people who have no relation or transaction with them. There would normally be circumstances leading to such state of affairs. Courts deal with real issues touching on matters that ordinarily happen in society. However, the applicant’s narration herein in my view, leaves serious gaps which point to a likelihood that he was unwilling to let the court know what really transpired. In short, the applicant has not approached this court with clean hands. 24.Therefore, I am not persuaded that the applicant has established a prima facie case to warrant grant of an order of temporary injunction. As there is no demonstration of prima facie case, the questions of irreparable damage and balance of convenience are now rendered moot. I therefore find no merit in the application dated 27th October 2025, which I dismiss with costs to the 2nd to 5th respondents. 25.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 17TH DAY OF JUNE 2026A. NYUKURIJUDGEIn the presence of;Ms Okeyo holding brief for Mr. Kabue for the applicantMs. Nafuye for the 1st to 5th respondentsCourt Assistant: Delphine