https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3402

Migosi v Chege & 3 others (Enviromental and Land Originating Summons E001 of 2026) [2026] KEELC 3402 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3402 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Enviromental and Land Originating Summons E001 of 2026 J Omange, J May 28, 2026 Between Geoffrey Nyachieo Migosi Applicant and Caroline Njeri Chege 1st Respondent George Chege Kamau 2nd Respondent Rose Wairimu Chege 3rd Respondent Land Registrar, Kajiado 4th Respondent Ruling 1.The Applicant vide an Originating Summons dated 28th January 2026 seeks the court to determine whether he has acquired title to Kajiado / Ntashart/ 637 now sub divided into Kajiado/ Ntashart /35540 and Kajiado/ Ntashart 35541 by reason of adverse possession the year 2012. 2.In the meantime, vide an application dated 28th January 2026 the applicant seeks issuance of a temporary injunction and inhibition orders restraining the 1st, 2nd and 3rd Respondents or any persons claiming under them, from using parcels of land known as Kajiado/Ntashart/35540 and Kajiado/Ntashart/35541, both being subdivisions of the original parcel Kajiado/Ntashart/637. 3.Premised on the grounds on its face and in the Affidavit, the Applicant avers that he entered and took possession of property Kajiado/Ntashart/637 registered in the 3rd Respondent’s name in 2012 and has maintained open, peaceful, continuous and exclusive possession since then. He avers that he has farmed on the land and erected structures including shops and at no time did the Respondents disrupt his possession. He further avers that sometime in between December 2025 and January 2026, the Respondents made attempts at evicting him from the suit property and upon conducting a search, he discovered that parcel Kajiado/Ntashart/637 had been subdivided to parcels Kajiado/Ntashart/35540 and 35541 and titles issued to the 1st and 2nd Respondents sometime in 2025. He contends that this subdivision and the consequential issuance of titles were unlawful and a nullity, given that the 3rd Respondent’s title had already been extinguished by dint of Section 7 and Section 13 of the Limitation of Actions Act. Therefore, absence of conservatory orders expose him to threat of irreparable loss and damage. 4.The 3rd Respondent on behalf of the 1st and 2nd Respondents opposed the Applicant’s claim, deponing that she had been in possession of the suit property from 1987 when she purchased it. She subsequently charged it to Barclays Bank for a loan facility. It was her averment that the Applicant had not been in possession of the property for over 12 years as claimed and that it was until about two years ago when the Applicant trespassed on the land and put up a structure. Upon enquiry, the Applicant claimed that his parcel of land extended to her land, which was false. Following this trespass, she referred the dispute for boundary determination and it was established that the Applicant’s land as per his title deed and area map was not adjacent to her parcel. She also indicated that she had leased part of the land to a tenant who was undertaking farming activities, and not the Applicant as claimed. Therefore, the Application should be dismissed. 5.In reply, the Applicant filed a Supplementary Affidavit in which he countered that he was the one who leased part of the land for farming to a third party (one Musa Okinyi) from the year 2023. He also added that a charge could not stop time from running and he was entitled to the suit property by way of adverse possession. 6.Both counsels filed submissions. Counsel for the Applicant submits that the Applicant has been on the suit property for over 12 years without interruption and the eviction notice served by the 3rd Respondent as well as the Surveyor’s report is evidence of his presence on the suit property citing Samuel Miki Waweru v jane Njeri Richu [2007] eKLR. On the test of irreparable damage, it was submitted that the Respondents’ attempt at evicting the Applicant would cause him irreparable damage since he would lose his property and the developments thereon. As such, the balance of convenience tilted in his favour and the injunctive order as well as inhibition order should be granted in his favour. 7.The Respondents’ opposed the Application submitting that the Applicant’s claim was founded on trespass and encroachment and the threshold set by Giella vs Cassman Brown has not been met and the Application should be dismissed with costs. 8.The sole issue for determination at this stage is whether the applicant has made out a case for grant of an injunction. 9.The law on grant of interlocutory injunctions is set out under Order 40 Rule 1 (a) and (b) of the Civil Procedure Rules as follows:“Where in any suit it is proved by affidavit or otherwise –a.That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; orb.That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in execution of any decree that may be passed against the defendant in the suit;the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 10.The principles for grant of injunction are well settled by the locus classicus of Giella Vs Cassman Brown & Company Limited [1973] E.A. 358., where the court stated thus:“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 11.The Applicant claims that he has established a prima facie case of his presence on the suit property for over 12 years. However, the Respondents contested the presence arguing that it was one of encroachment and trespass for not more than two years. The question of possession of the suit property and grounds leading to the said claim of adverse possession is in contention. At this interlocutory stage the parties have not yet had a chance to have their averments tested by cross examination hence any findings of fact should be made with a lot of caution if at all. 12.In the circumstances I find that the Applicant has not met the threshold for grant of an interlocutory injunction. However the parties are before the court and the court should hear the matter on merit before action such as the eviction is carried out. 13.This court has previously cited with approval the case of Mombasa Misc. Civil Application (JR) No.26 of 2010 Republic –vs- The Chairperson Business Premises Rent Tribunal at Mombasa (Bench Mochache) Exparte Baobab Beach Resort (Mombasa Limited) & Monica Clara Schriel in which Muriithi J distinguished between an injunction as a substantive equitable remedy and status quo as an ancillary order that does not depend on proof of right or wrong. 14.The court depending on the circumstances of each case can issue a status quo order so as to ensure that the ends of justice are met for the parties. Given that it is not in contention that the Applicant is the one in possession at this time I find that it is appropriate that this status quo be maintained. Similarly the status quo as to title should be maintained. In order to ensure that the order is not used to delay the matter endlessly the status quo orders are to remain in place for one year only. However, should the delay be occasioned by the Respondents the court shall be at liberty to extend the Status Quo orders. 15.Ultimately the court issues the following orders;i.The status quo obtaining as at 28th May 2026 as to possession and title is issued in respect of Kajiado/Ntashart/35540 and Kajiado/Ntashart/35541.ii.That the status quo order shall remain in place for one year unless the delay in concluding the matter is occasioned by the Respondents in which event the Court shall be at liberty to extend the status quo orders.iii.Costs shall abide the outcome of the suit. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 28TH MAY 2026.JUDY OMANGEJUDGE.In the presence of:Mr Kigen for Applicant.Mr Gatumuta for 1st, 2nd 3rd Respondent.Peter – Court Assistant.