Otieno v Nyakongo (Enviromental and Land Originating Summons E023 of 2026) [2026] KEELC 5365 (KLR) (31 August 2026) (Ruling)

Otieno v Nyakongo (Enviromental and Land Originating Summons E023 of 2026) [2026] KEELC 5365 (KLR) (31 August 2026) (Ruling) Neutral citation: [2026] KEELC 5365 (KLR) Republic of Kenya In the Environment and Land Court at Migori Enviromental and Land Originating Summons E023 of 2026 FO Nyagaka, J August 31, 2026 Between William Nyangoya Otieno Plaintiff and Johannes Omolo Nyakongo Defendant Ruling Background 1.The parties herein have previously litigated over a portion measuring approximately 0.4 hectares comprised in a part of land parcel L.R. Kanyamkago/Kawere I/91. The entire parcel measures approximately 6.6 hectares. It was first registered on 23rd November 1974 in the name of Nyakongo Odero, deceased. The Respondent is his son who acquired registration of the property in his name through transmission upon conducting succession proceedings to his deceased father’s Estate. 2.The Applicant occupies the disputed portion. His case herein is that he purchased it from one Justo Were Odero, a brother of Nyakongo Odero. Thereafter, he had been in occupation since about the year 2008/2010. He claimed entitlement to the parcel by way of adverse possession. He alleged that the Respondent's predecessor held it in trust for him. 3.The Respondent previously sued the Applicant for trespass onto the said portion. That was in Migori CMELC No. 23 of 2020. The averments relating the proceedings in the previous suit were that the Applicant was served with Summons to Enter Appearance. He did not enter Appearance or file a Defence. But he attended the hearing and cross-examined the Respondent. Judgment was delivered on 31st August 2023. By it the trial court ordered the Applicant's eviction and granted a permanent prohibitory injunction. It also awarded costs to the Respondent. 4.The Applicant did not appeal. He subsequently instituted Migori ELCLOS No. E006 of 2023, claiming adverse possession over the same portion. He later withdrew the suit. He thereafter applied to the subordinate court to set aside the judgment. His application was dismissed on 18th March 2025. He did not appeal against the ruling. 5.On 29th June 2026, the Respondent applied in the subordinate court for execution of the judgment and the applicant’s eviction. He also sought the assistance of the auctioneers and police in that exercise. The application was served on him on 6th July 2026. Hot on the heels of that application, that is to say, on 13th July 2026, the Applicant instituted the present proceedings. Simultaneously, he filed the Notice of Motion now before the Court. The Application 6.The instant Notice of Motion, dated 13th July 2026. It is the one I am to determine now. It was brought under Articles 40 and 159 of the Constitution, Order 40(1) and Order 51(1) of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and the Land Registration Act (sic). 7.In substance, the Applicant sought an injunction restraining the Respondent from evicting him or interfering with his occupation of the disputed portion and an order staying implementation of the judgment and decree in Migori CMELC No. 23 of 2020 pending the hearing and determination of the suit. 8.The sixteen grounds on the face of the Motion are, in substance, that the Applicant had been on the land since 2010; he purchased the portion from Justo Were Odero; the registered proprietor holds the land in trust for him; that adverse possession rights had crystallised before the earlier suit was filed; and that eviction would render the present suit nugatory. 9.The Motion was supported by the Applicant's affidavit sworn on 13th July 2026 to which five annextures, WNO-01 to WNO-05. He deponed that he had been in actual and constructive possession of the portion since 2010 or thereabout. That he purchased it from Justo Were Odero. Further, that the registration of the entire parcel in Nyakongo Odero's name arose because Justo Were was a minor at adjudication hence/ consequently asserted a family trust created. 10.The Applicant deponed further that the Respondent succeeded to the whole parcel of land and excluded him. He also deponed that judgment was entered against him in 2023 because he did not know that he was required to file a defence. Further, that his application to set aside the judgment failed because the subordinate court considered that it lacked jurisdiction over an adverse-possession claim. He stated that the pending eviction threatened his rights under Article 40 of the Constitution. If allowed, it would render the suit nugatory. The Statement of Grounds of Opposition 11.The Respondent opposed the application through two sets of documents: Grounds of Opposition and a Replying Affidavit. The first one was a Statement of Grounds of Opposition dated and filed on 24th July 2026. They comprised twenty-five in number. 12.The substance of the objection was that there was already a lawful and regular judgment and decree of a competent subordinate court, delivered on the merits after hearing the matter. The Respondent contended that neither the present suit nor the Motion was an appeal or an application for stay pending appeal, yet the orders sought would have the effect of varying, setting aside, overturning or stalling the decree. He therefore contended that this Court had no jurisdiction to grant the reliefs sought. 13.The Respondent further contended that the limitation defence and rights said to arise under Sections 7, 13, 17 and 38 of the Limitation of Actions Act could and ought to have been raised in Migori CMELC No. 23 of 2020 but they were not. He consequently pleaded res judicata under Section 7 of the Civil Procedure Act. 14.The Respondent also pointed out that the Applicant did not allege that the earlier proceedings, judgment or decree were unconstitutional, unlawful, irregular, null or void, nor he allege he was denied a fair hearing. He contended that execution of the decree was a lawful process undertaken by the court which issued it, under Order 22 of the Civil Procedure Rules. 15.Finally, the Respondent contended that the application was founded on an unlawful sale agreement. It was barred by the doctrines of ex turpi causa non oritur actio and ex turpi causa ex dolo malo. He characterized the Motion as vexatious, scandalous and an abuse of the process of the Court. He contended that the Applicant had not established a prima facie case, or irreparable loss or any balance of convenience in his favour. The Replying Affidavit 16.The Respondent subsequently filed a Replying Affidavit sworn on 11th August 2026. It ran to ninety paragraphs. It contained 26 annextures, being JON-1 to JON-26. 17.The Respondent deponed that he served the Applicant with a Demand and Notice of Intention to Sue. They were dated 18th December 2019. The Applicant signed for them but did not vacate the land. He filed the Plaint (in the lower court) on 29th March 2020 and served summons on 4th June 2020. He subsequently amended the Plaint in August 2020 and June 2021. 18.He deponed that the Applicant neither entered Appearance nor filed a Defence. He was served with a hearing notice in the suit on 22nd April 2023. The hearing proceeded on 26th April 2023. The Applicant attended court and cross-examined him. However, he was not allowed to testify or produce exhibits because he did not file a defence. 19.The Respondent relied further on the judgment and decree of 31st August 2023. He also relied on the dismissal of the Applicant's application to set aside on 18th March 2025, the absence of any appeal, and the execution proceedings commenced on 29th June 2026. He contended that the Applicant's occupation had neither been peaceful nor uninterrupted for the twelve years period before the earlier suit was filed. 20.The Respondent also relied on the Applicant's different pleaded dates of entry onto the land, the demand of 18th December 2019, the filing of the recovery suit, and the Applicant's continued occupation despite the eviction decree being issued. He contended that these circumstances defeated the claim of uninterrupted adverse possession at the interlocutory stage. The Applicant's Submissions 21.The Applicant filed Written Submissions dated 17th August 2026. Although the submissions contain incorrect references to the case number and dates of the processes, I have read them holistically and in the interest of justice considered them as being in support of the applicant’s contention in the Motion dated 13th July 2026. 22.Learned Counsel submitted that this Court had jurisdiction and discretion to grant a stay and injunctive relief. He relied principally on Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR). He argued that he had resided on the land for more than twelve years. Further, that as such he had an adverse-possession claim which would be frustrated by eviction. 23.On substantial loss, his learned counsel relied on Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR) and Pan African Insurance Co Ltd v International Air Transport Association. He submitted that the Applicant's home was on the land, and demolition or eviction would materially affect his claim. 24.On the injunction, counsel submitted that the Applicant had established a prima facie case. Further, he would suffer irreparable loss if evicted before the Originating Summons was heard. He relied, among other authorities, on Giella v Cassman Brown & Co Ltd [1973] EA 358, Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), Belgo Holdings Ltd v Lakeview Development Ltd & another [2022] KECA 1291 (KLR), and Joseph Siro Mosioma v Housing Finance Company of Kenya & 3 others [2008] KEHC 3673 (KLR). 25.Counsel submitted that the suit would otherwise be rendered academic and asked that the Motion be allowed pending hearing and determination of the suit. The Respondent's Submissions 26.The Respondent filed Written Submissions dated 27th August 2026. Counsel first submitted that, in substance, only the prayers seeking injunctive protection and a stay were for determination. 27.Learned Counsel submitted that the Applicant's processes offended Order 9 Rule 1 of the Civil Procedure Rules because the pleadings were drawn in the name of M/s Kerario Marwa & Company Advocates while filing and payment on the Case Tracking System were undertaken through M/s B.D. Achola Law & Associates Advocates. He urged that the Motion and submissions be struck out. 28.On the merits, counsel submitted that the Motion was in truth an attempt to stay execution of the subordinate court's decree. He relied on Section 34 of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. He argued that execution-related questions belong to and lie before the executing court and not another, but that there was no appeal before this Court which is seized of a new matter. 29.Learned Counsel submitted that the Applicant had not established twelve years of uninterrupted adverse possession. He relied on Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR); Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] KECA 161 (KLR);Lewa v Mwagandi [2015] KECA 532 (KLR); Grace Wairimu Sorora v Chaka Limited & 6 others [2017] KECA 549 (KLR); and Njami v Njami [2025] KECA 492 (KLR). He contended that the demand of 18th December 2019 and the subsequent recovery proceedings interrupted the running of time. 30.Counsel further submitted that the Applicant had not shown irreparable loss. Further, that the balance of convenience favoured the Respondent as the registered proprietor holding a subsisting decree, and that no security had been offered. He argued that the Motion was filed only after the Applicant was served with the eviction application and amounted to an abuse of the process of the Court. He sought dismissal with costs. Issues for Determination 31.Having considered the Motion, affidavits, Statement of Grounds of Opposition and the rival submissions, I consider the following issues to arise:a.Whether the Applicant’s pleadings and application are incompetent for want of compliance with Order 9 Rule 1 of the Civil Procedure Rules;b.Whether the judgment and decree in Migori CMELC No. 23 of 2020 has any effect on the present application;c.Whether the decree remains valid and enforceable;d.Whether the matters raised in the instant Motion are barred for being res judicata;e.Whether this Court can stay or restrain execution of the decree in a different suit through the present proceedings;f.Whether the Applicant has established a prima facie case warranting grant of a temporary injunction; andg.Who should bear the costs. Analysis and Determination 32.I now set forth to determine the issues in sequence. a. Whether the Applicant's Pleadings and Application are Incompetent 33.The Respondent raised a pertinent legal question regarding the applicant’s representation by counsel. He premised his contention on Order 9 Rule 1 of the Civil Procedure Rules, 2010. He contended that the Plaint was drawn by a different law firm yet the payment for it was made by another law firm. Therefore, to him, the applicant was not properly represented. 34.Order 9 Rule 1 of the Civil Procedure Rules provides that an act required or authorised to be done in court may be done by the party in person, a recognised agent or an advocate duly appointed to act on his behalf. 35.I have carefully analysed the pleadings herein and the record as to the payments thereto. The Applicant's pleadings are drawn and signed in the name of M/s Kerario Marwa & Company Advocates. The Respondent does not allege that the Applicant did not instruct that firm, and has not provided to the contrary. His complaint is that the filing of the pleadings and the payment of the sum due as evidenced on the Case Tracking System show that they were effected differently, particularly, by the payment being made through the account of M/s BD Achola Law & Associates Advocates. 36.Those circumstances, without evidence that the latter firm purported to act for the Applicant or that the named advocates who signed the pleadings lacked authority, do not establish non-compliance with Order 9 Rule 1. Representation of a party has to do with which law firm or party signs and files the pleadings that the party relies on. It is not the payment of money to the court that signifies an instructed counsel or party but the documents he signs in that behalf. Thus, the issue herein basically concerns the ‘mechanics’ of filing documents rather than the identity of the advocate who has instructions on the pleadings, which are mere technicalities rather than substance. 37.Article 159(2)(d) of the Constitution requires the Court to administer justice without undue regard to procedural technicalities. I therefore find no merit in the argument. I decline to strike out the Motion and the pleadings herein on this ground. b. Whether the Judgment and Decree in Migori CMELC No. 23 of 2020 has any Effect on the Present Application 38.I am alive to the fact that I am called upon, at this stage of proceedings, to determine an interlocutory application and not the Originating Summons. By considering the effect of the previous judgment at this point of proceedings I must be careful not to determine the suit. I proceed on those premises. 39.Section 2 of the Civil Procedure Act defines a decree as the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy. Once a court has pronounced judgment, whether on merits or for other consideration, it is functus officio save for the limited powers conferred to it by law, of post judgment procedures such as execution or assessment/ taxation of costs. The Court of Appeal restated the principle of functus officio in Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR). I adopt it. 40.In the previous suit between the parties, the court delivered judgment on 31st August 2023. It was between the parties, litigating over the same land in the same capacities save that in the suit, the Applicant was the Defendant and the Respondent the Plaintiff. The issue was that the applicant was in occupation of the Respondent’s land illegally or a trespasser and ought to be evicted. Thus, the trial court determined the two relevant issues: who owned the suit land herein and whether the applicant herein was a trespasser thereon or not. Trespass has to do with whether a nonowner of a property is legally in occupation or not. 41.Section3(1) of the Trespass Act, Cap 294 provides that;Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence. 42.I take note that the provision is specific as to the land being private, for an act of trespass to have been committed. The suit land herein is private. The two issues presented for determination in MCLEC No. 23 of 2020 are now settled meritoriously. The Court found the owner of the suit land was the respondent, and the applicant was a trespasser on it. It ordered the eviction of the latter. The Judgment has not been set aside. The Applicant's application to set it aside was dismissed on 18th March 2025. No appeal has been preferred from that ruling. The judgment therefore remains valid and binding. 43.The Applicant now seeks that this Court stays the eviction lawfully ordered by a court of competent jurisdiction through a suit which is subsequent to the said judgment, and which is not seeking to disturb the findings of the lower court by way of an appeal. One legal point, as stated above is that the judgment is binding on the parties in that suit. These parties are the applicant and respondent herein. In my humble view, the applicant cannot obtain through interlocutory proceedings in a fresh suit that which he failed to obtain by defending his rights in that other suit, and not appealing or succeeding to set aside the decree issued in Migori CMELC No. 23 of 2020. The trial court pronounced itself on the merits of the controversy. That decree remains binding until lawfully disturbed. 44.The Respondent's submission that the Applicant has not challenged the legality or regularity of the earlier judgment is also material. There is no allegation before this Court that the decree is a nullity or that its execution is founded on an invalid order. Even if that would be, the proper procedure is for the applicant to move the court in that matter or in an appeal therefrom. The present Motion is therefore not a challenge to the validity of the decree but an attempt to restrain its implementation. That is unprocedural and yet the decree is binding on the parties. c. Whether the Decree Remains Enforceable 45.As stated above, the decree in Migori CMELC No. 23 of 2020 is binding. Is it still alive? Section 4(4) of the Limitation of Actions Act provides that an action may not be brought upon a judgment after twelve years from the date it was delivered, subject to the statutory qualification concerning judgments for payment or delivery or any orders made subsequent to the decree. 46.The judgment was delivered on 31st August 2023. Twelve years from that date have not elapsed. The Respondent commenced execution proceedings on 29th June 2026 which was three years within the delivery of the judgment. The decree is therefore not statute-barred or stale. This court is alive to the fact that there are procedures for execution of decrees at various stages of their ‘age’. Indeed, there is a procedure which the Respondent ought to follow if he wishes to execute it. This, perhaps is the step the Respondent has taken in that matter. It is not within the powers or jurisdiction of this court to direct how he will execute the decree in a matter that does not directly stem from the instant one. That is a procedural protection available to the Applicant before the executing court. The law does not confer jurisdiction on this Court to take over the execution proceedings of another through his one. d. Whether the application is Res Judicata 47.Res judicata is a principle that settle and if proved ends the life of a matter adjudicated to be as such. The Respondent herein invokes Section 7 of the Civil Procedure Act. The provision bars a court, in a subsequent action, from trying a suit or issue which was directly and substantially in issue in a former suit/ matter between the same parties, litigating under the same title, where the former matter was heard and finally determined by a competent court. 48.The Court of Appeal in Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR) held that the elements of res judicata are conjunctive. The Supreme Court in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) emphasised the public policy that litigation must come to an end. 49.The explanation in (c) above to Section 7 is equally material. A matter which might and ought to have been made a ground of defence or attack in the former suit is equally deemed to have been directly and substantially in issue in that suit. 50.The Applicant was served in Migori CMELC No. 23 of 2020. He participated in the hearing by cross-examining the Respondent. The plea that the Respondent's right to recover possession had already been extinguished by limitation was a matter that could have been raised as a defence to the trespass and eviction claim when it was alive. The court pronounced itself in that matter. 51.To that extent, the Applicant cannot use this interlocutory Motion to reopen the question whether he was entitled to remain in possession contrary to the decree. That issue was determined by the subordinate court and the decree remains in force. 52.However, being alive to the fact that this issue is being raised in response to an interlocutory application for injunction and not as a substantive issue, it (res judicata) is premature and misplaced. The plea could have only been properly raised is the applicant had sought an injunction against the Respondent in that other matter and he court rendered itself on it on merits. It is not the case herein in the instant application for inunction. As to whether the entire Originating Summons is itself barred by being res judicata, that can only be brought through a substantive application which will be determined on its merits. e. Whether this Court May Stay or Restrain Execution 53.I remind the parties once more of the fact that there is a binding decree in Migori CMELC No. 23 of 2020. The prayers herein seeking a stay of the decree of that court and those restraining the Respondent from eviction are, in substance, directed at preventing execution of the decree in the previous suit. 54.Order 42 Rule 6 of the Civil Procedure Rules is the one regulates stay of execution pending appeal while Order 11 and Order 21 Rule 7 provide for setting aside judgments or rulings or orders, and in cases of setting aside, and both Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure rules provide for review and setting aside. All these yield prayers for stay of execution of the impugned decisions. Herein, though, there is neither appeal before this Court nor any application to set aside or review the judgment in the previous suit. Therefore, to grant the prayer sought would be farfetched. In any event, the Applicant did not appeal against the judgment of 31st August 2023 or the ruling of 18th March 2025. The appellant court would have been better placed at deciding on that issue. 55.More importantly, Section 34(1) of the Civil Procedure Act provides that all questions arising between parties to the suit in which a decree was passed and relating to its execution, discharge or satisfaction shall be determined by the court executing the decree and not by a separate suit. This principle has consistently been applied to prevent collateral attacks on execution proceedings. The Court of Appeal affirmed that principle in Adiel Muriithi Philip v Thomas Maingi [2017] KECA 650 (KLR). 56.The decree on the applicant’s occupation of the suit land herein is being executed before the Chief Magistrate's Court at Migori. It is the proper court seized of the matter then. The Applicant has already appeared in those proceedings and had an opportunity to raise before that court any issue concerning the manner or legality of the execution process, including any statutory requirements governing eviction. He has so done. This Court cannot convert the present suit into an alternative forum for supervising or staying execution of the subordinate court's decree. To do so would circumvent section 34 and undermine the finality of the decree. Thus, the prayers seeking to stay or otherwise restrain execution therefore fail. f. Whether a Temporary Injunction should Issue 57.The Applicant also seeks an injunction independently of the prayer for stay. The principles are now settled. In Giella v Cassman Brown & Co Ltd [1973] EA 358, the applicant must establish sequentially or in hurdles a prima facie case with a probability of success, and then demonstrate that he would suffer irreparable injury not adequately compensable by damages and, if the Court remains in doubt, establish that the balance of convenience favours the grant. 58.In Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR), the Court of Appeal emphasised that the three requirements are separate and sequential. If a prima facie case is not established, the Court need not proceed to the other limbs. A prima facie case is more than an arguable case, see Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). 59.The Applicant's asserted right is principally based on adverse possession under Section 38 of the Limitation of Actions Act. In Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] KECA 161 (KLR) the Court of Appeal held that a claimant must prove exclusive possession, openly and as of right, without interruption for twelve years. See also Wambugu v Njuguna [1983] KLR 172 and Lewa v Mwagandi [2015] KECA 532 (KLR). 60.Whereas the applicant is in possession of the suit land. His occupation thereof has been ordered terminated through a lawful decree of the Court. This Court is beholden of the prayer to halt an execution of a lawful decree of a court through a subsequent and different suit. His occupation is this shaky and cannot found a prima facie case. 61.The Respondent served the Applicant a Demand and Notice of Intention to Sue on 18th December 2019 and thereafter instituted proceedings seeking recovery and eviction. The execution of a decree issued on merit precludes a prima facie reason of stopping the eviction. The Court of Appeal held in Grace Wairimu Sorora v Chaka Limited & 6 Others [2017] KECA 549 (KLR) that proceedings by the registered proprietor seeking recovery of possession interrupt the running of time for adverse possession. The instant case mirrors an interruption of the occupation. This court cannot deny the Respondent that opportunity. 62.The more recent decision in Omare v Githinji & 3 others [2025] KECA 1976 (KLR) clarifies that mere institution of a suit is not by itself enough, the recovery proceedings must be pursued so as to assert the owner's right and obtain an order for possession. That requirement is satisfied on the present facts. The Respondent's 2020 suit was prosecuted to judgment and resulted in an eviction decree and permanent injunction. 63.There is a further difficulty. The Applicant has remained on the land after the judgment of 31st August 2023 notwithstanding the order for his eviction and the permanent injunction restraining his occupation. He is acting in disobedience of a lawful decree of the court. I do not consider occupation maintained contrary to a subsisting court order capable, without more, of strengthening an interlocutory claim to a right of occupation. 64.The Applicant also relies on an alleged trust and a sale agreement. Those matters go to the merits of the Originating Summons. I decline to make a final determination of them at this stage. The applicant having failed to establish a prima facie case, he does not cross the first threshold of the Giella (supra) and Nguruman (supra) cases. It is therefore unnecessary to undertake an extended inquiry into irreparable loss or the balance of convenience. 65.For completeness of understanding the finding herein, the fact that eviction may render the Applicant's suit practically more difficult does not, by itself, justify an injunction. The Court must still act within its jurisdiction. A party cannot use interlocutory relief in a fresh suit to suspend execution of a decree which remains valid and which the Applicant did not appeal. 66.The Respondent also pointed out that one of the injunction prayers refers to the 'deceased's property' although the property is presently registered in the Respondent's name and the Applicant does not sue as a personal representative of a deceased person. 67.A court is bound by the pleadings and cannot grant a remedy that has not been sought or determine an unpleaded issue. See David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR). The prayer is therefore inelegantly framed. I do not, however, rest the dismissal of the Motion on that defect, having already found that the substantive requirements for the relief have not been met. 68.Finally, as I draw to a close, the applicant argued that the instant application was barred by the doctrines of ex turpi causa non oritur actio and ex turpi causa ex dolo malo. It is worth noting that the doctrine of ex turpi causa non oritur actio which is borrowed from the Latin phrase means “from a dishonourable cause, an action does not arise”. I understand the Respondent to mean that the applicant is barred from relying on an agreement that arises from an illegality. If that be the argument, then that is a matter of evidence whose merits will be determined at the trial, if the suit proceeds. On the other hand, the phrase ex turpi causa ex dolo malo means “an action does not arise from fraud or wrongdoing.” It translates to the same contention as the previous phrase hence validity of both arguments can only be determined at the trial. Conclusion 69.Independently, the Applicant has not established a prima facie case warranting a temporary injunction. The present ruling does not finally determine the merits of the Originating Summons, including the Applicant's allegations concerning adverse possession, trust or the sale agreement or the respondent’s plea of the Origination Summons being res judicata. Accordingly, the Notice of Motion dated 13th July 2026 is dismissed. Costs 70.Costs follow the event under section 27 of the Civil Procedure Act. I find no reason to depart from that principle and unction. The Respondent shall therefore have the costs of the application. 71.This suit shall be mentioned on 29th October 2026 to confirm compliance with Order 11 of the Civil Procedure Rules, and making of further directions. Therefore, the parties ought, by then to have filed their pleadings, documents and trial bundles and exchanged them. 72.It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 31ST DAY OF AUGUST 2026.HON. DR. IUR NYAGAKAJUDGEIn the presence of:Mr. B. Achola Advocate for the ApplicantMr. M. Odero Advocate for the RespondentCourt Assistant: Arthur