https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5112

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELCLOS NO. E005 OF 2025** **IRENE INAMBALI MASIKA….……………………..…… APPLICANT** **-VERSUS-** **JOSHUA DANG’ANA………………………………….... RESPONDENT** **RULING** **Introduction** 1. Before court is a Notice of Motion application dated20th May 2026 filed by the applicant seeking the following orders: 2. **Spent.** 3. **That pending the hearing and determination of this application inter-partes this honourable Court be pleased to issue a temporary injunction restraining the defendant/ respondent whether by himself, servants, agents, or any person acting under him from entering upon, evicting the plaintiff and restrain the respondent from alienating, selling, transferring, changing, subdividing, fencing, constructing on or in any manner whatsoever interfering with the plaintiff’s quiet possession and occupation of the defined portions on the ground constituting part of title L.R No. Lugari/ Likuyani/Block 1 ( Vihiga) 194.** 4. **That pending the hearing and determination of this application inter-partes, this honourable Court be pleased to issue an order of inhibition inhibiting the registration of any dealings whatsoever in respect of L.R no. Lugari/ Likuyani/Block 1 ( Vihiga) 194.** 5. **That upon determination of this application, prayers (b) and (c) above be confirmed pending the hearing and determination of the main suit.** 6. **That the costs of this application be provided.** 7. The application is supported by the applicant’s affidavit sworn on 20th May 2026. She depones that she has been in occupation and use of two portions each measuring 100 x 100 feet, forming part of L.R. No. Lugari/Likuyani/Block 1 (Vihiga)/194, since 1978. Although the respondent is the registered proprietor of the entire parcel, she contends that her proprietary interests were recognized in Butali MCLE No. 10 of 2020, where the respondent’s suit seeking her eviction was dismissed on 8th August 2023. She states that no appeal or review was preferred against that decision. She further avers that the respondent has recently sent strangers onto the suit property and, being the registered proprietor, she may alienate or otherwise deal with the land to her prejudice unless preservatory orders are granted. 8. The respondent opposes the application through a replying affidavit sworn on 30th June 2026. He depones that he became a member of Vihiga Farmers Company Limited in 1976 and was allocated the suit property in 1978. He states that he developed the land by constructing permanent structures and that the company’s allocation process was later upheld in Kakamega High Court Civil Case No. 334 of 1988, paving the way for issuance of title deeds. He explains that although his title was initially delayed, he eventually acquired title to L.R. No. Lugari/Likuyani/Block 1 (Vihiga)/194 on 8th April 2014 following proceedings before the Likuyani Divisional Land Disputes Tribunal, which found that the previous registration in the name of Jeremiah Lumwagi Asami was unlawful. He therefore maintains that his title is valid and conclusive evidence of ownership. 9. The respondent further avers that the applicant only entered the suit property in the year 2000 after seeking his permission to bury her deceased daughter there. He denies that she has occupied the land since 1978, contending that she has failed to produce evidence supporting that claim. He states that after she declined to vacate the property, he filed Butali MCLE No. 16 of 2020 seeking her eviction, whose dismissal has since been appealed. He also relies on a survey report prepared by the Kakamega County Government Surveyor on 29th April 2026, which allegedly established that developments belonging to the applicant exist on parcel No. 194. He denies sending strangers onto the land and urges the Court to dismiss the application. 10. In her further affidavit sworn on 6th July 2026, the applicant reiterates that her claim is founded on the doctrines of adverse possession and trust, issues which can only be conclusively determined upon a full hearing. She contends that the respondent’s admission that she occupies the suit property supports her prayer that the prevailing status quo be preserved pending determination of the suit. 11. The applicant further depones that the dispute between the respondent and Jeremiah Lumwagi Asami does not affect her claim, which is founded on her own occupation of the land. She also disputes the respondent’s assertion that she first entered the property in 2000, maintaining that she buried other family members on the land before then and has annexed burial permits in support of her claim. She further states that the respondent’s appeal arising from the dismissal of the eviction suit was struck out, thereby leaving her in occupation of the disputed property. 12. The application was canvassed by way of written submissions. The Court has considered the applicant’s submissions dated 6th July 2026 and the respondent’s submissions dated 14th July 2026, both of which are on record. **Analysis and determination** 1. Having carefully considered the Notice of Motion, the affidavits sworn in support thereof and in opposition thereto, together with the rival submissions by counsel, the Court is of the considered view that the sole issue for determination is whether the applicant has satisfied the legal threshold for the grant of a temporary injunction and an order of inhibition pending the hearing and determination of the suit. 2. Order 40 Rule 1 of the Civil Procedure Rules empowers this Court to grant temporary injunctive relief where it is proved that any property in dispute is in danger of being wasted, damaged, alienated, wrongfully sold in execution of a decree or otherwise disposed of, or where the defendant threatens or intends to remove or dispose of his property in circumstances likely to obstruct or delay the execution of any decree that may ultimately be passed against him. The grant of a temporary injunction is an exercise of judicial discretion which must be exercised on established legal principles. 3. The Court of Appeal in **Patricia Njeri & 3 Others v National Museum of Kenya [2004] eKLR** held as follows: "***The purpose of an interlocutory injunction is to preserve the subject matter pending the hearing and determination of the suit."*** 1. The principles governing the grant of interlocutory injunctions were settled in **Giella v Cassman Brown & Co. Ltd [1973] EA 358,** where the Court held that an applicant must establish: a prima facie case with a probability of success; that he or she stands to suffer irreparable injury which cannot adequately be compensated by an award of damages if the injunction is not granted; and where the Court is in doubt, the application should be determined on a balance of convenience*.* 2. The meaning of a prima facie case was authoritatively considered by the Court of Appeal in **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125,** where the Court stated: *“****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.”*** 1. The Court of Appeal further expounded on the principles governing interlocutory injunctions in **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR,** holding that the three conditions set out in **Giella v Cassman Brown** are distinct, sequential and mandatory hurdles by stating as follows; *“****These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent… 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. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise.”*** 1. In **Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] 1 EA 86,** theCourt of Appeal emphasized that an applicant must satisfy all the Giella principles before an injunction may issue by stating as follows: "***The sequence of granting an interlocutory injunction is that the applicant must first establish a prima facie case. Secondly, the court must consider whether damages would be an adequate remedy. If damages are adequate, no injunction should normally issue."*** 1. The fact that the applicant has been on the suit property for a considerable period of time is undisputed. While the applicant alleges to have been on the suit property since 1978, the respondent argues that her occupation began in the year 2000. A claim for adverse possession is based on continous occupation by a trespasser without the owner’s permission for a period of 12 years. Therefore, I am persuaded that the applicant having been in occupation of the suit property for some time, has established a prima facie case with chances of success. 2. Regarding whether the applicant shall suffer irreparable loss, the fact that she is in occupation when title is in the respondent’s name, demontrate a likelihood of disposal of the suit property before determination of the suit. The balance of convenience tilts in favour of the applicant who is in occupation. Therefore, the applicant is entitled to an order of temporary injunction. 3. Section 68(1) of the Land Registration Act, No. 3 of 2012 empowers the Court to issue an inhibition order to preserve the suit property for a period of time. It provides that: ***“(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.”*** 1. The purpose of an inhibition order is preservation of the suit property so that the subject matter of litigation is not rendered unavailable before the Court determines the dispute. 2. In **Dorcas Muthoni & 2 Others v Michael Ireri Ngari [2016] eKLR,** the Court held: ***“An order of inhibition issued under Section 68 of the Land Registration Act is similar to an order of prohibitory injunction... The Court issuing such an order must be satisfied that the applicant has good grounds to warrant the issuance of such an order because, like an interlocutory injunction, such an order preserves the property in dispute pending trial.”*** 1. Similarly in**Terer v Jepchirchir [2024] KEELC 14197 (KLR),** observed that: ***“Like an interlocutory injunction, an order of inhibition preserves the property in dispute pending its hearing and determination.”*** 1. These authorities underscore that an inhibition order is intended to preserve the suit property pending the hearing and determination of a dispute. 2. As the respondent holds title and the applicant is in occupation and is pursuing a claim under adverse possession, it is imperattive that an order of inhibition is issued to preserve the suit property during the pendency of this suit. 3. In the premises, I find and hold that he application dated 20th May 2026 is merited and the same is hereby allowed as follows; 4. **That an order of temporary injunction is hereby issued restraining the defendant/ respondent whether by himself, servants, agents, or any person acting under him from entering upon, evicting the plaintiff and restrain the respondent from alienating, selling, transferring, charging, subdividing, fencing, constructing on or in any manner whatsoever interfering with the plaintiff’s quiet possession and occupation of the defined portions on the ground constituting part of title L.R no. Lugari/ Likuyani/Block 1 ( Vihiga) 194 pending the hearing and determination of this suit.** 5. **That an order of inhibition is hereby issued inhibiting the registration of any dealings whatsoever in respect of L.R no. Lugari/ Likuyani/Block 1 ( Vihiga) 194 pending the hearing and determination of this suit.** 6. **Costs of this application are hereby awarded to the applicant** 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 29TH DAY OF JULY 2026.** **A. NYUKURI** **JUDGE** **In the presence of;** No appearance for the applicant Mr. Kimaiyo for the respondent Court Assistant: Delphine