https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4708

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLC E002 OF 2026** **MWANGI KAREMERI………………………................................PLAINTIFF/APPLICANT** **VERSUS** **PERIS WAMBUI MAINA (Sued as the administrator** **of the Estate of MAINA KAREMERI(Deceased) ...................DEFENDANT/RESPONDENT** **RULING** 1. This ruling is on the notice of motion dated 12-1-2026.. The motion which is by the Plaintiff is brought under Orders 53 rules 3 and 22 rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, the Constitution of Kenya, the Judicature Act and all other enabling provisions of the law. The motion seeks two(2) residual orders as follows. 4**. That pending the hearing and determination of this suit, this Court be pleased to issue temporary injunction restraining the Defendant whether by herself, her agents, servants or any other person claiming through her from evicting, interfering with, subdividing, transferring, alienating, charging or otherwise dealing with L.R. No. Mitubiri Wempa/Block 2/1228.** **5. That the costs of this application be in the cause.** 1. The motion is based on Seven(7) grounds and is supported by the affidavit of the Plaintiff dated 12-1-2026 and a summary of the same is as here below. Firstly, the Plaintiff has been in continuous, open and uninterrupted occupation and possession of the suit land for over 30 years. The said land is his ancestral home and belongs to his mother Virginia Muthoni Karemeri who acquired it from Mithi and Swani Society. It got registered in the name of Maina Karemeri, the Plaintiff’s brother, as a trustee as he was the elder son. Secondly, the Defendant got registered of the land as the wife of Maina Karemeri vide Kandara Magistrate’s Court Succession Cause No. 329 of 2024. She has now caused the suit land to be subdivided without consulting the Plaintiff and his sisters who are all entitled to a share of the land. She has also threatened to evict the Plaintiff and other beneficiaries of the suit land. This is despite the fact that two of the Plaintiff’s deceased brothers, Joseph Kariithi Karemeri and John Gichuki Karemeri are buried on the suit land which further affirms the long standing family occupation and attachment to the land. Neither the Defendant nor her late husband has ever occupied the land. It is only the Plaintiff and his sisters who have been in occupation of the suit land. Finally, unless the orders sought are issued, the Defendant may evict the Plaintiff and his sisters. 2. The motion is opposed by the Respondent who has sworn a replying affidavit dated 23-2-2026. Her first point is that the application is time barred under the Limitation of Actions Act. Secondly, the alleged trust is non-existent and it is baffling why the Plaintiff did not file a suit for its dissolution against her husband. Thirdly, the suit land belongs to Defendant husband absolutely. Fourthly, the Plaintiff filed an objection at Kandara SPMCC Succession Cause No. 329 of 2024 which he failed to prosecute and this suit amounts to forum shopping. Fifthly, the Plaintiff has become a vexatious litigant in that he filed a citation in Kenol Law Courts in Miscellaneous Succession Cause No. E068/2024 which was dismissed on 10-2-2025. For the above and other reasons, the Defendant prays that the motion be dismissed. 3. Counsel for the parties filed written submissions dated 22-4-2026 and 2-6-2026 respectively. The Defendant’s Counsel did not identify any issues for determination. On the other hand, the Plaintiff’s Counsel framed four (4) issues as follows. 4. **Whether the Applicant has proved the existence of a customary trust over the suit land.** 5. **Whether the Respondent has disproved the Applicant’s claim of a trust over the suit property.** 6. **Whether the Applicant is entitled to the orders of preserving the suit property pending the determination of this suit.** 7. **Who bears the costs.** 8. Since the motion seeks an order of injunction principally, the court will be guided by the principles applicable to the grant of an order of injunction as per the case of **Giella vs. Cassman Brown [1973] EA 358**. The suit being at the interlocutory stage and with all the issues not yet proved, I need not look at the two grounds of a prima facie case with a probability of success or the Applicant suffering loss that cannot be adequately compensated with an award of damages. I only need to look at the balance of convenience which I find tilts in favour of the Applicant for the following reasons. Firstly, he has proved that he is in occupation of the suit land and such occupation has been for long. He has annexed photographs of buildings, crops, trees and graves of relatives. Secondly, the Respondent has not controverted this evidence in any way. Thirdly, it is prudent to maintain the status quo until the suit is heard and determined. For the above stated reasons, I **allow** the notice of motion dated 12-1-2026 in terms of prayer 4. Costs in the cause. **It is so ordered.** **Dated, signed and delivered virtually at Murang’a this 20th day of July, 2026.** **M. N. GICHERU** **JUDGE** **Delivered online in the presence of:-** **Court Assistants – Antony and Jackline** **Plaintiff’s Counsel – Miss Waiyego** **Defendant’s Counsel – Mr. T.M. Njoroge**