Kanyakwamba v Kimori (Enviromental and Land Originating Summons E015 of 2026) [2026] KEELC 4307 (KLR) (30 June 2026) (Ruling)

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT** **HOMABAY ELC OS NO E015 OF 2026** **SHADRACK OGOLA KANYAKWAMBA ……………….……PLAINTIFF** **VERSUS** **SIMEON OLOO KIMORI …………………………………DEFENDANT** **RULING** **BACKGROUND INFORMATION** 1. The Applicant herein filed an Amended Originating Summons dated 3rd February, 2026 where he seeks for determination of several issues, *inter-alia:* 2. Whether the applicant has been in open, notorious, and uninterrupted adverse possession of the whole land parcel No. Gembe Waondo Wasaki /1289 measuring 0.5 hectares registered in the name of Kimori Pambo, the respondent herein, for a period exceeding twelve years. 3. Whether the applicant has been in occupation of the whole land parcel of Gembe Waondo Wasaki / 1289 measuring 0.5 of a hectare for a period exceeding twelve years without the permission of the Respondent. 4. The Originating Summons is supported by the affidavit of the applicant. 5. The Applicant has sued the Respondent in his personal capacity and as the representative of the Estate of Kimori Pambo alias Kimori Pamba. 6. Together with the Originating Summons, the applicant did file a certificate of urgency dated 3rd February, 2026 accompanied with a notice of motion of dated same date where he sought the following interim orders: 7. *Spent* 8. *That this Honorable Court be pleased to issue an injunction order restraining the respondent, his agents, servants, next of kin or other beneficiaries from obtaining authority from the Respondent transmitting from the name of the Deceased to the beneficiaries, transferring, subdividing, charging, or undertaking any other activity which may lead to disposal of Land Parcel No. Gembe Waondo Wasaki / 1289 in the name of the deceased to beneficiaries or third parties pending the hearing and determination of this application.* 9. *That this Honorable Court be pleased to issue an injunction order restraining the respondent, his agents, servants, next of kin or other beneficiaries from obtaining authority from the Respondent transmitting from the name of the Deceased to the beneficiaries, transferring, subdividing, charging, or undertaking any other activity which may lead to disposal of Land Parcel No. Gembe Waondo Wasaki / 1289 in the name of the deceased to beneficiaries or third parties pending the hearing and determination of the suit* 10. *That this Honorable Court be pleased to issue an order of inhibition restraining the respondent, his agents, servants, next of kin or other beneficiaries from obtaining authority from the Respondent transmitting from the name of the Deceased to the beneficiaries, transferring, subdividing, charging, or undertaking any other activity which may lead to disposal of Land Parcel No. Gembe Waondo Wasaki / 1289 in the name of the deceased to beneficiaries or third parties pending the hearing and determination of this suit.* 11. *Costs of the application to be borne by the Respondent.* 12. The application is premised on seven (7) grounds listed on the face of the application and supported by the replying affidavit of the respondent. 13. I have looked at the annexure marked "MRM 1" and which is grant of letters of Administration intestate in Succession Cause No E. 126 of 2025 in respect of the Estate of Kimori Pambo (Deceased) who died on 12/5/1985. **RESPONSE TO THE ORIGINATING SUMMONS AND APPLICATION** 1. On 24th February,2026 the Respondent filed response which is contained in his replying affidavit sworn the same day. 2. The respondent states that succession is ongoing but the applicant has been in occupation of Land parcel number Gembe/ Wasaki /1290 belonging to himself, that the family of Kimori are in occupation of land parcel number 1289 since time immemorial and that the application is a waste of court’s time. 3. The respondent has annexed a search certificate of parcel number 1290 in the name of the Applicant which confirms that the same was issued on 22nd September,1989 **SUBMISSIONS BY THE PARTIES.** 1. The applicant filed submissions dated 17th February, 2026 through his counsel wherein he states that he has made extensive developments on the land since the year 1995 and risks being evicted. On inhibition the applicant refers to Section 68 of the Land Registration Act, 2012 and relies on the decided cases of **Geofrey Kiania Kimwara v Mwikamaba Bagembe (2021) eKLR** **and Rosemary Wanjiku Njigi v Nancy Munjiru Ngige (2013) eKLR** which addressed the threshold for granting an inhibition or an injunction. 2. The respondent through his Counsel did file submissions dated 29th May ,2026.Counsel states that the attached structures is not sufficient evidence that the developments are situated on the land parcel number Gembe/Waondo /Wasaki /1289 as opposed to Gembe /Waondo/Wasaki /1290 , that in the case of Monga (Suing on behalf of **Samson Malinde ) versus Masero (2025) KEELC1750 (KLR)** the court held that for an applicant to succeed in his application he must appear to have lived and or utilized the suit property at the time of the application ; that the balance of convenience tilts in favor of the Respondent as the Administrator of the Estate; that section 68 of the Land Registration Act, 2012 allows inhibition only where alienation is imminent and on this aspect Counsel relies on the case of **Geofrey Kania Kamwara versus Mwakamba Kagembethe** where it was held that an order of inhibition is essentially a prohibitory injunction issued by the court to stop registration of any dealings in respect of the subject matter as intimated in the case of **Ongany (Suing as the personal representative of the Estate of** **Tibias Ongany Okuom (Deceased ) V Administrator of the Estate of Nyateng Muga & 4 Others [2025]KEELC 4076 (KLR);**that the Respondent has only been appointed Administrator and land is yet to be subdivided ,that no prima-facie case has been established , and lastly, that the applicant has not proved exclusive occupation or development on the suit land. **ISSUES FOR DETERMINATION** 1. Upon considering the application, responses, and submissions, I narrow the issues for determination as hereunder, namely: (i) What are the conditions for granting a temporary injunction? (ii) Whether the Applicant has met those conditions. (iii) What orders should be made in the interest of justice. 1. The locus classicus on the granting of interim injunctions is the celebrated **case of Giella v Cassman Brown & Company Limited [1973] EA 358** where the court pronounced the test: ***First, an applicant must satisfy the court that he has 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 be adequately compensated by an award of damages.*** ***Thirdly, if the court is in doubt, it will decide the application on the balance of convenience.*** 1. In the case of **American Cyanamid Co. v Ethicon Limited [1975] AC 396**, Judgment of **Lord Diplock in the Local Privy Council decision of NCB limited versus Olint Corporation** the court gave guidelines for granting an injunction: 2. **Is the claimant’s case frivolous or vexatious? Meaning is there a serious issue to be tried.** 3. **If the answer to the above is no, then the injunction ought not to be granted. If the answer is yes, it must consider whether or not damages would be an adequate remedy.** 4. **If there is no clear answer to the question of whether or not damages would be an adequate remedy to compensate either the Plaintiff or the Defendant, then I will go to examine the balance of convenience generally.** 5. **If after considering the balance of convenience generally the court is still unable to come to a definitive conclusion, and there are no special factors, it is advisable to have the status quo remain.”** 6. On the principles of a prima facie case, the **Court of Appeal in Mrao versus First American Bank of Kenya Ltd & 2 Others [2003] KLR** 125 defined it as: ***"A prima facie case in a civil application includes but is not confined to a genuine and arguable case ‘’ it is a case which on the material presented to the court, a tribunal properly directing itself will conclude that there is a right which has apparently been infringed by the opposite party as to require an explanation or rebuttal from the latter."*** 1. These three principles set out in **Giella and American Cynamid (Supra**) need all the present in an application for the court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out in the **Appeal case of Nguruman Limited v Jan Bonde Nielsen & Others [2014] eKLR** where it was held thus ***“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct, and logically, hurdles which the applicant is expected to surmount sequentially.*** **ANALYSIS AND DETERMINATION.** 1. The application has been made under Order 40 Rule 1 of the Civil Procedure Rules and Section 68 of the Land Registration Act. 2. Order 40 Rule 1 provides that where it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongly sold in execution of a decree, the court may grant a temporary injunction to restrain such acts. 3. Section 68 of the Land Registration Act states that 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 registered land, lease or charge. 4. The applicant seeks orders of injunction restraining the respondent from proceeding with confirmation of the ‘Estate of the deceased pending hearing and determination of the suit herein. 5. The Applicant states that the Respondent is the Administrator of the Estate and is in the process of transmitting land parcel number **Gembe/ Waondo /1289** to himself and other beneficiaries in succession cause Number 126 of 2025. 6. Having carefully looked at the 2nd and 3rd limb of the application, I note that it raises a jurisdictional issue which this court needs to determine before making other orders. 7. Basically, what the applicant is seeking is an order stopping the Chief Magistrates Court from distributing the Estate based on the fact that the applicant has filed a claim for adverse possession in court. 8. The jurisdictional question is best understood or addressed by first laying a basis on the constitutional and legislative mandate of this court. 9. UnderArticle 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, the Environment and Land Court have original and appellate jurisdiction to hear and determine disputes relating to land administration and management, title, tenure, boundaries, valuation, land use, planning, and natural resources. 10. The question of jurisdiction is a subject of great controversy upon which the court has been called upon to make a determination on whether it has jurisdiction at the preliminary stage of the proceedings. Though the issue has not been raised with regard to the application before this court, the court properly directing itself, with abundance of caution, is enjoined to make a determination on the basis of material placed before it, right away without any hesitation. 11. Nothing has vexed the courts and practitioners more recently than the question as to which court, between the Environment and land Court and the Succession court ,has jurisdiction to determine the issue of ownership where a claim is brought against the Estate. 12. In the light of the above, I take refuge in often quoted authority of **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1:** *"Jurisdiction is everything. Without it, a court has no power to make one more step..."* 1. In HCC Succession No 864 Of 1996[2015] the High Court found that it had no jurisdiction to resolve the proprietary interest based on the alleged trust and the appropriate forum was the Environment and land court, and in passing the Judge observed: ***‘’ The mandate of the probate and the probate court under the law of Succession Act is limited, it does not extend to determining issues of ownership of property and declaration of trust. It is matter of the probate court being incompetent to deal with the issues but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for the determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land court.”*** 1. In **In Re Estate of Monica Wangari Njiri & 4 Others versus Eunice Wanjiru Igamba & Another [2016] eKLR,** the court made a distinction between a claim against the estate of a deceased person and a claim for inheritance. The Objectors there were not claiming as dependents but asserted proprietary rights over the land. 2. Similarly, in Re Estate of Njuguna Igwima [2017] KEHC, the court held that where there is a dispute as to ownership of a title arising from a contest of what assets are available for distribution, the confirmation proceedings in the succession court may grind to a halt pending the outcome of the determination of ownership and title by the Environment and Land Court. 3. In the light of the above, I find and hold that I am seized of jurisdiction. I note that jurisdiction is not for the sake of the Judge but the litigant. 4. In considering whether to grant an injunction, one of the considerations to be borne in mind is the threatened violation of legal rights. Court have held that when the Offending party has behaved in a high-handed manner, money or monetary compensation may not be sufficient, and this is, on the basis that financial compensation can settle legal debts but it cannot undo the emotional or moral damage caused by a wrong (**The case of Lucy Njoki Waithaka v Industrial and Commercial Development Corporation [2001] KLR)** 5. In the decision of Lucy Njoki Waithaka, the court held: ***"As regards damages, I must say that it is an understanding of the law, an inexorable rule, that damages may not always be an appropriate remedy. An interlocutory injunction should never issue if damages are adequate. If that were the rule, the law would unduly lean in favor of those rich enough to pay damages for all manner of trespasses. That would not only be unjust but it would also be seen to be unjust."*** 1. The applicant states that he entered the suit land in 1995, occupied, and settled openly on the 0.5-hectare portion while the deceased was still alive, and has continued to be in open possession with the knowledge of the beneficiaries. He has made extensive developments thereon and risks being evicted. 2. In support of his claim the Applicant has attached a grant of letters of Administration in favour of the respondent, an extract of title, a survey map and photographs. 3. Indeed, the Respondent acknowledges that a succession case is ongoing but denies that the applicant is occupation of the suit land. He qualifies this position by saying the applicant's developments are on his own title, Gembe Waondo Wasaki /1290, and not on 1289, that if orders are made it will injunct them from using the land, that it will be in the interest of justice for the court to visit the land, and that orders sought cannot obtain. 4. It is instructive to note that adverse possession arises from failure on the part of the owner to remove an intruder after lapse of 12 years. 5. For a claim of adverse possession to succeed, the intruder must demonstrate exclusive, open, and undisturbed occupation without secrecy or interruption for a continuous period of 12 years (JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419). 6. However, the so-called intruder has an onerous responsibility of demonstrating date of entry, nature of possession, knowledge of possession, duration of possession, open and undisturbed occupation without secrecy, permission or interruption. Actual possession must be established. (See Situma versus Cherono Civil Appeal number351 of 2002). 7. Based on the documents and rival representations, I find that the Applicant has established a prima facie case with a probability of success. He states that he is indeed in occupation. Though the Respondents say the developments are on a different plot, they have not availed any evidence to support that position. This would have been done by taking photographs or carrying out a survey, which has not been done. 8. As regards the second condition, the applicant is apprehensive that if the grant is confirmed and the land is transferred to the names of the beneficiaries, it is likely to be transferred onwards, hence resulting in his eviction by strangers who are not party to this suit. The transmission of titles may also necessitate amendment to the pleadings which will definitely be an expensive affair in terms of time and money. 9. The respondents says that if an injunction is issued they will be stopped from utilizing the land .I note from the application that the Applicant seeks to stop transmission of the land by way of succession, and, if indeed the beneficiaries are entitle to a fair share, save for the portion occupied by the Applicant on account of adverse possession, obviously the remainder will be theirs. I also find that the Respondent is economical with information regarding the Estate as he has not put forth how he is proposing to distribute the estate, and, also demonstrate the manner of occupation or distribution to the said beneficiaries. 10. In my view, damages would not adequately compensate the Applicant, taking into account that he occupies the property and has made substantial investments. If left in the hands of the gods the Estate may go up into flames as it will be beyond the reach of this Court. 11. Consequently, the balance of convenience tilts in favor of preserving the subject matter herein pending the final determination of the suit. ORDERS 32. Final orders are issued as follows: a) *The Notice of motion dated 3rd February,2026 is hereby allowed* *b)That an injunction order is hereby issued restraining the respondent, his agents, servants, next of kin or other beneficiaries from obtaining authority from the Respondent, transmitting from the name of the Deceased to the beneficiaries, transferring, subdividing, charging, or undertaking any other activity which may lead to disposal of Land Parcel No. Gembe /Waondo Wasaki / 1289 in the name of the deceased to beneficiaries or third parties pending the hearing and determination of the suit.* 1. *That an order of inhibition is hereby issued restraining the respondent, his agents, servants, next of kin or other beneficiaries from obtaining authority from the Respondent transmitting from the name of the Deceased to the beneficiaries, transferring, subdividing, charging, or undertaking any other activity which may lead to disposal of Land Parcel No. Gembe/ Waondo Wasaki / 1289 in the name of the deceased to beneficiaries or third parties pending the hearing and determination of this suit.* 2. *costs shall be in the cause* 3. *The injunction shall be in force for a period of* ***One Hundred and Eighty (180)*** *days only to facilitate a speedy trial.* 4. To expedite the hearing there shall be a mention for purposes of pretrial on 27th July, 2026. RULING DELIVERED THROUGH MICRSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT HOMABAY THIS, 30TH DAY JUNE OF 2026 **In the Presence of;** **Advocates :** Kimberly for the Respondent (present) later not seen. Adhiambo and Company, for the Applicant. **Court:** Since M/s Kimberly Advocate was present but muted, the Deputy Registrar shall Serve all Parties with a mention notice to attend Court for Compliance. JUSTICE J.W WANYONYI -JUDGE 30/6/2026