https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3492

Enock v Enock (Land Case E018 of 2026) [2026] KEELC 3492 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3492 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Land Case E018 of 2026 LC Komingoi, J June 9, 2026 Between Benjamin Rotich Enock Plaintiff and Kibet Rotich Enock Defendant Ruling 1.The ruling is in respect of the Amended Notice of Motion dated 28th April 2026, brought Under S.5, 1A, 1B & 3A of the Civil Procedure Act, O.40 r.1 O51 r.1 of the Civil Procedure Rules) and the inherent of this Honorable Court). 2.It seeks orders: -1.Spent2.An injunction do issue prohibiting the Defendant, his agents, servants, assigns or anyperson claiming through the plaintiff from entering, cultivating and interfering with the Plaintiff adjacent properties LR. No. 9748/6 9741/3.3.A mandatory injunction do issue against the Defendant, his agents, associates, and any one claiming through him removing them from the Plaintiffs property Nyota/Langwenda Block 1/3 (formerly LR. No. 9748/5) and LR. No. 9748/6 9741/3.4.The Defendant be committed to civil jail for a period to be determined by court for violating the status quo order granted by court on the 31/03/2026.5.The Officer Commanding Sirikwa Police Division do provide security during enforcement of this orders.6.The Costs of the Application be in the cause. 3.The grounds are on the face of the Application and are set out in paragraphs a to l. 4.The Application is supported by the Affidavit of Benjamin Kipkech Kipkulei, the Plaintiff/Applicant herein, sworn on the 13th April 2026 and supplementary Affidavits sworn on the 27th April 2026 and the 30th April 2026. 5.The Application is opposed. There are Replying Affidavits sworn by the Defendant/Respondent on the 20th April 2026. 6.The application was canvassed by way of written submissions. The Plaintiff’s /applicant’s Submissions 7.They are dated 6th May 2026, counsel submitted that the law governing interlocutory injunction is set out under Order 40 (1) (a) & (b) of the Civil Procedure Rules and the conditions for consideration set out in the case of Giella Vs Cassman Brown & Company Limited (1973) EA 358. 8.It is submitted that the Plaintiff/Applicant has established a prima facie case with a probability of success. Reliance is placed on the case of Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others (2003) KECA 175 (KLR).It is further submitted that the Plaintiff/Applicant has produced the initial certificate of title which shows that LR No.97481/1 belongs to him by registration. He has annexed a copy of the title and the transfer to his affidavits. It is submitted that title LR No.9748/1 does not exist as the same has been replaced by LR.No.9748/5 which has also been extinguished by Nyota/Langwenda Block1/3 and L.R No. 9748/6 in which the Plaintiff has been farming uninterruptedly. 9.Counsel also submitted that no certified copy of Title has been produced to show the connection of L.R No. 9748/1 to Christopher Chetalam.It is clear that the Defendant /Respondent, filed his case against a former owner while fully aware that he has no interests in the said suit land 10.It is submitted that the allegation of occupation for 14 years from the year 2012 is fallacious on account of the fact that LR No.9748/1 was subdivided in 2012 to produce LR No.9748/5 and 9748/6. That it is clear that the sub division process is a mechanical process that involves physically surveying the land and marking the sub-divisions with beacons which process started in 2012 and was completed in 2023. 11.It is submitted that it was impossible to assert possession while the subdivision process was ongoing as it would be impossible to survey land that is under hostile occupation. Reliance is placed on the cases of Harrison Ngige Kaara Vs Gichobi Kaara & Another (1997) KECA 406 (KLR) ; Wilson Kazungu Katana & 101 others Vs Salim Abdalla Bakshwein & another (2015) KECA 728 (KLR); Charles Wahome Gethi Vs Angela Wairimu Gethi (2008) KECA 34 (KLR) . 12.It is also submitted that the photographs produced by the Defendant are these of recent built temporary houses. There is also evidence of the destruction of the Plaintiff’s farm house. 13.Counsel further submitted that the Plaintiff/Applicant has demonstrated that he is the registered proprietor of the said land measuring approximately 316 acres. He has further demonstrated the loss of 274 trees that were felled by the Defendant after misleading the court to grant him exparte orders to harvest and transport the trees. It is also the Plaintiff’s, case that he will suffer financial loss if he is unable to farm the whole season. 14.It is submitted that the balance of convenience tilts in favour of the Plaintiff who has a title in his name but the Defendant can be compensated should he succeed in his claim. 15.Counsel submitted that a Court Order is binding on the Party against whom it is addressed and until it is set aside, it remains valid and is to be complied with. Reliance is placed on the case of Cecil Miller Vs Jackson Njeru & Another (2017) KEHC 1499 (KLR) where the Court outlined the ingredients citing the book titled “Contempt in Modern Newzealand” as :-a.“The term of the order/or injunction or undertaking, were a clear and unambiguous and were binding on the defendants.b.the defendant has knowledge of or proper notice of the term of the order.c.the defendant has acted in breach of terms of the order and;d.The defendant’s conduct was deliberate.” 16.It is submitted that the order was clear that the status quo was to be preserved. The Defendant had knowledge of the Court order.Reliance is placed on the case of Shimmers Plaza Limited Vs National Bank of Kenya Limited (2015) KECA 945 (KLR).It is further submitted that the Defendant in further breach of the court order has erected an additional temporary structure in contravention of the court order. 17.Counsel also submitted that planting on the suit land by use of force was provocative, deliberate and disrespectful. 18.It is submitted that the Plaintiff has demonstrated that there are special circumstances that warrant the issuance of a mandatory injunction as the Defendant entered the Plaintiffs Land with force. Reliance is placed on the case of Kamau Mucuha Vs Ripples Ltd (1993) KECA 82 ( KLR) .That the Defendant has not shown any evidence that discounts the Plaintiff as the owner of the suit properties.Further, that time could only start running against the Plaintiff when he became aware the Defendant had invaded his land. Reliance is placed on the case of Wines & Spirits, Kenya Limited & another Vs George Mwachiru Mwango (2018) KECA 293 ((KLR); Muhiddin Mohammed Muhiddin (Suing for and on behalf of the Estate of Mohammed Muhiddin Mohamed Hatimy) Vs Jackson Muthama & 168 others (2014) KECA 61 ( KLR) 19.It is submitted that the Defendant has admitted the use of force which he claims was a self defence. He prays that the application be allowed. The Defendant/respondent’s Submissions 20.They are dated 21st April 2026. They raise three (3) issues for determination.i.Whether the Plaintiff’s Amended Motion meets the threshold for grant of a temporary injunction as established in Giella Vs Cassman Brown & Co. Ltd (1973) EA 358;ii.Whether the Plaintiff has made material non- disclosure to this Honorable Court, thereby disentitling him to the equitable remedy of injunctioniii.Whether the Plaintiff has established any recognizable interest in the suit property, being LR No.9748/1, to sustain an application for injunction; 21.Counsel submitted that the Plaintiff/Applicant has failed to establish a prime facie case as he has adduced no evidence to demonstrate any recognizable interest on LR No.9748/1 which is the subject of the status quo order issued on the 31st March 2026. It is submitted that the Plaintiff/Applicant exhibited a certificate of Title relating to LR No.9748/3 a different parcel entirely. 22.It is also submitted that the Defendant has been in open, continuous, exclusive, uninterrupted and notorious possession of LR No.9748/1 since 2012, a period exceeding 14 years. That he has constructed a residential dwelling, cleared, fenced, tilled and cultivated the land season after season and invested substantial resources into improving the same as his primary home and source of livelihood. Reliance is placed on the case of Hanningtone Oloo Ogumbo Vs Albert Makau Kyambo & Another (2021) KEELC 2508 (KLR). 23.It is submitted that the Plaintiff/Applicant has not demonstrated the element of irreparable harm.That his claim that he (defendant) has cultivated approximately 150 Acres on LR 974813 is exaggerated. Further that any harm allegedly suffered by the Plaintiff is quantifiable and can be adequately compensated by an award of damages.The Defendant is a farmer with substantial developments on LR No.9148/1. It is submitted that the balance of convenience tilts in favour of the Defendant who has been in possession of LR No. 9748/1 since 2012. 24.It is also submitted that the Plaintiff/applicant has made material non- disclosure to this Honorable Court. That the Defendant has been in open, Continuous and exclusive possession of LR No.9748/1 since the year 2012, a period of over twelve (12) years.That this material non-disclosure is sufficient to warrant the discharge of any exparte orders and dismissal of the Amended Notice of Motion. 25.It is also submitted that the Plaintiff’s attempt to litigate over land which he has no registrable or recognizable interest is a misjoinder and abuse of the Court Process.Further that the registered proprietor is Christopher Cherop Chetalam. 26.Finally, it is submitted that the status quo order did not freeze the defendant’s legitimate preexisting and ongoing occupation and use of his own claimed property. He prays that Amended Notice of motion be dismissed with costs. Analysis And Determination 27.I have considered the Amended Notice of Motion, the Affidavits in support and the responses thereto. When the application came up for hearing, counsel agreed to file written submissions. In the written submissions Counsel substantiated their clients’ respective positions stated in their respective affidavits. I have considered the same together with the authorities cited. 28.Having done so, it is now appropriate to consider the facts that have emerged and the legal principles applicable. The issues for determination are: -i.Whether the Plaintiff’s/Applicant’s Amended Notice of Motion has met the threshold for grant of orders of a temporary injunction.ii.Is he entitled to the grant of a mandatory injunction?iii.Is the Defendant/Respondent in contempt of the order of status quo issued on the 31st March 2026.iv.Who should bear costs of this Application? 29.The principles were laid down in the precedent setting case of Giella Vs Cassman Brown & Company Limited (1973) EA 358. They are as follows:-“First, the applicant must show that he has a prima facie case with a probability of success at the trial,Secondly, normally an injunction will not be granted unless the applicant shows that damages would not be an adequate remedy for injury suffered unless the injunction is granted.Thirdly, if the court is in doubt, it will decide the application on a balance of convenience.” 30.The court of Appeal in the case of Mrao Ltd Vs First American Bank of Kenya & 2 Others (2003) KECA 175 (KLR) stated what amounts to a prima facie case. 31.It is the Plaintiff/Applicant’s case that he was the registered owner of the LR No.9748/1. He annexed a copy of the certificate of Title and transfer to his supplementary affidavit.It is further his case that LR No. 9748/1 does not exist as the same was subdivided to give rise to LR No. 9748/5 and 9748/6 respectively.That LR No. 9748/5 was further sub divided to give rise to a parcel known as Nyota/Lagwenda Block 1/3. The plaintiff maintains that he is undertaking farming on LR. 9748/6 and Nyota/Langwenda Block1/3. 32.The Defendant /Respondent’s case is that he has been in occupation of LR. No.9748/1 since the year 2012. This amounts to a total of fourteen (14) years hence he is entitled to be registered as the owner of the land by dint of adverse possession. In his Affidavit he admitted that he filed a suit in Molo Court MCELC E012 of 2025 (OS) against Christopher Cherop Chetalam . He also filed molo MC ELC E004 OF 2026 against Agricultural Development Corporation and Kenya Forest Service where he got orders to fell 276 trees that were on the land. It is upon realizing that the Magistrate’s Court lack jurisdiction that he filed Nakuru ELC OS E001 of 2026 Kibet Rotich Enock Vs Christopher Cherop Chelatam. It is important to note that the defendant /Respondent has not annexed copy of extract of Certificate of Title in the name of Christopher Cherop Chetalam, the alleged registered proprietor of LR No. 9748/1 which he claims. It is also not in dispute that the court is yet to determine if his rights as an adverse possessor have crystallized. 33.The Plaintiff/Applicant has annexed documents to show that that the land was transferred to him on 13th November 1998 and a certificate of title issued. It is not in dispute that the land ceased to belong to Christopher Cherop Chetalam way back in 1998. 34.The Defendant/Respondent initiated the suits in 2025 and 2026. He ought to have done a search at the Land Registry to confirm the registered owner of the land which he claims. I agree with the plaintiff/Applicant’s submissions that the fact that sub division commenced in the year 2012, and was completed in the year 2023, meant that the Defendant/Respondent could not assert possession while the sub division process was ongoing. 35.I will be cautions not to delve into issues that will be dealt with at the trial, but it is important to state that the Defendant/Respondent occupation must have been with the knowledge of the registered owner in this case the Plaintiff/Applicant. In the case of Harrison Ngige Kaara Vs Gichobi Kaara & Another (1997) KECA 406 (KLR) the court of Appeal stated :-“The Law on adverse possession is clear. S.7 of the Limitation of Actions Act, Cap 22 Laws of Kenya, provides for a 12 years limitation period for action to recover land. That period does not start running unless the land is in possession of some person or persons whose interest in it is hostile to that of the owner thereof. Possession is hostile if it is open, without right, without force or fraud and exclusive. In other words the adverse possessor must be shown to be using the land as though it is solely his own before a right of action to recover it can be said to have accrued for the limitation period to start running.” 36.From the foregoing, I am satisfied that the Plaintiff/applicant has established a prima facie with a probability of success at the trial. 37.It is the Plaintiff/applicant’s case that he has already lost 274 trees that were felled by the Defendant/Respondent. He has also stated that as a large-scale farmer, he will not be able to undertake his farming activities unless the Defendant/Respondent is restrained.I have considered the averments of the Defendants/Respondent in his affidavit where he stated that his workers acted in self defence against (the Plaintiffs/Applicant’s agents). They confirm the Plaintiff’s/Applicant’s claim that he is keen in preventing (the Plaintiff) from accessing his land. 38.I am satisfied that the Plaintiff/Applicant has demonstrated that he will suffer irreparable harm that cannot be compensated by an award of damages unless the orders of injunction is granted. 39.The plaintiff /applicant is the registered owner of the suit land, while the Defendant/Respondent’s rights are yet to be confirmed by the Court. I find that the balance of convenience tilts in favour of the Plaintiff/Applicant as he is the registered owner of the suit properties. 40.It is the Plaintiff/applicant’s case that after being served with the Court Order, the Defendant /Respondent has embarked on a violent process of stealing a match against the plaintiff by planting in areas already ploughed by the Plaintiff while preventing the plaintiff from accessing his land through hired goons. In the case of Washington Jalango Okumu Vs Boffar Ltd (2005) eKLR, the court stated thus;“A Mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear. Cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied on where the Defendant has attempted to steal a match on the Plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear, that the injunction has rightly been granted and that being a different and higher standard than was required for prohibitory injunction” 41.I am guided by the above authority in finding that a mandatory injunction ought to be granted at this stage to prevent the Defendant/Respondent from stealing a match against the Plaintiff/applicant. It is also the Plaintiff/Applicant’s case that the Defendant/Respondent actions amounts to contempt of the orders of the status quo granted on the 31st March 2026.On the 31st March 2026 Hon M A Odeny (Dr.) (J) granted the following orders:“ 4.That the status quo be maintained pending inter parties hearing of this application.” 42.In the case of Cecil Miller Vs Jackson Njeru & Another (2017) KEHC 1499 (KLR) the court outlined the ingredients needed to be proved against a contemnor citing the book Titled “contempt in Modern Newzealand” as:(a)“the terms of the order/or injunction or undertaking, were clear and unambiguous and were binding on the defendants.(b)The defendant has knowledge of or proper notice of the term of the order.(c)The defendant has acted in breach of terms of the order and;(d)the defendant’s conduct was deliberate.” 43.It is clear from the orders of 31st of March 2026 that status quo was to be preserved. I agree with the Defendant/Respondent’s submission that the Court did not define what was the status quo prevailing at the issuance of the order. It was important for the Plaintiff /applicant to bring to the attention of the Court what were the prevailing circumstances on the ground.I am unable to find the Defendant/Respondent in contempt of the orders issued on 31st March 2026. 44.The upshot of the matter is that I find merit in this application and grant the orders sought namely: -a.That an order of temporally injunction is hereby issued restraining the Defendant / Respondent his agents, associates and or anyone claiming through him from entering, cultivating and interfering with the plaintiff’s adjacent properties LR No 9748 and 9741/3 pending the hearing and determination of the suit herein.b.That a mandatory injunction is hereby issued directing the Defendant, his agents, associates and anyone claiming through him to forthwith vacate the Plaintiffs parcel of land known as Nyota Lagwenda Block 1/3 (formerly L.R No.9748/5) and L.R No.9748/6.c.That the OCS Sirikwa Police Post do ensure compliance of orders (a), (b) above. In order to maintain Law and Order.(d)That cost of this Application do abide the outcome of the main suit. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 9TH DAY OF JUNE 2026.L KOMINGOIJUDGEIn the presence of:-Mr. Odhiambo for the Plaintiff/ApplicantMr. Kimunya for Defendants/RespondentCourt Assistant: Derrick/Irene