https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3698

Mutembei v Mbijiwe & another (Environment and Land Appeal E004 of 2026) [2026] KEELC 3698 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3698 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E004 of 2026 BM Eboso, J June 9, 2026 Between Kelvin Mutembei Appellant and Martin Murithi Mbijiwe Respondent and Margaret Kabaka Mutwiri Interested Party Ruling 1.The appellant and the respondent in this appeal are son and father. Vide a plaint dated 22/12/2020, the appellant sued the respondent in Meru CMC E & L Case No E036 of 2020, seeking a declaration that the respondent held ½ acre portion of land parcel number Kibirichia/Kibirichia/6194 in trust for the appellant. He named Margaret Kabaka Mutwiri as an interested party in the suit. The lower court considered the claim and dismissed it for lack of merit vide a judgment dated 16/12/2025. 2.Aggrieved by the judgment of the lower court, the appellant brought this appeal through a memorandum of appeal dated 12/1/2026. Subsequent to that, the appellant brought a notice of motion dated 16/1/2026. 3.While the notice of motion dated 16/1/2026 was pending interpartes hearing on 29/4/2026, the appellant brought a second application dated 3/3/2026 seeking leave to amend the application dated 16/1/2026. In addition to seeking leave to amend the application dated 16/1/2026, the appellant sought interlocutory orders that were to abide the interpartes hearing of the said application dated 16/1/2026. No other order was sought in the application dated 3/3/2026. 4.The plea for leave to amend the application dated 15/1/2026 was granted by consent on 29/4/2026 and an amended application of even date was subsequently filed. Given the above context, the application dated 3/3/2026 is at this point of disposing the application dated 16/1/2026 spent. Consequently, the application dated 3/3/2026 is marked “spent”. Costs of the application shall be in the appeal. 5.What remains to be determined in this ruling is the amended application dated 29/4/2026. Through the application, the appellant seeks inhibition and interlocutory injunctive orders in the following verbatim terms.“ 4.That an order of temporary injunction be issued restraining the respondent and the interested party either by themselves, agents, servants, and/or anyone acting or claiming through and/or acting at their behest, direction or instructions from evicting or entering or dispossessing or otherwise whatsoever preventing the applicant or interfering with his peaceful, quiet, undisturbed, uninterrupted, and exclusive occupation, of the suit property, L.R NO Kibirichia/Kibirichia/6439 pending the hearing and determination of this appeal. 5.That an order of inhibition be issued and the same be registered against LR No. Kibirichia/Kibirichia/6439 to restrict any dealings or transfer or charging and the District Land Registrar, Meru Central District be directed to register the inhibition pending the hearing and determination of this appeal. 6.In The Alternative this court do issue an order that the parties herein to preserve the status quo prevailing as to the user and occupation of the suit property, LR No Kibirichia/Kibirichia/6439 pending the hearing and determination of this appeal.” 6.The application was premised on the grounds outlined in the motion and in the applicant’s two affidavits dated 3/3/2026 and 27/4/2026, respectively. It was canvassed through submissions dated 12/5/2026, filed by M/s John Muthomi & Co Advocates. The case of the applicant is that he moved the court for orders of injunction and inhibition relating to land parcel number Kibirichia/Kibirichia/6194. He sought to restrain the respondent and the interested party from evicting him. On 20/1/2026, the court issued an order barring dealings in the land register relating to the suit land, pending the interpartes hearing of the application. On 20/1/2026, he extracted the order and went to the Land Registry where he discovered that the register of the suit property had been closed pursuant to a subdivision of the suit land into six new parcels. 7.The applicant adds that the suit land had been surveyed as parcel number Kibirichia/Kibirichia/6439 and had been registered in the interested party’s name on 23/12/2025. He further discovered that on 16/1/2026, the interested party registered a restriction against the title. It is the case of the applicant that there is no guarantee that the status-quo will be maintained pending the hearing of the appeal. He is apprehensive that there is the risk of the interested party withdrawing the said restriction, thereby exposing the suit land to adverse dealings. 8.The respondent opposed the application through two replying affidavits dated 9/2/2026 and written submissions dated 20/4/2026, filed by M/s Peter Ruigu & Co Advocates. The case of the respondent is that the applicant is his son. Land parcel number Kibirichia/Kibirichia/6439 measures ½ of an acre and devolved to him as a subdivision of Kibirichia/Kibirichia/6194 through a succession cause relating to the estate of his late father, Magambo Gitunga. He sold the said parcel to the interested party and transferred the land to her on 23/12/2025 prior to the filing of this appeal. 9.The respondent adds that the applicant believes that he ranks higher in hierarchy than him in relation to the succession to the estate of his late father, the late Magambo Gitunga. He states that the appellant is a vexatious litigant who has no regard for court orders, adding that the application does not meet the threshold for granting the injunctive orders sought. 10.The interested party opposed the application through a replying affidavit dated 14/4/2026 and submissions dated 17/4/2026, filed by M/s Kanyi Kiruchi & Co Advocates. The case of the interested party is that she purchased ½ of an acre from the respondent, which was excised from land parcel No. Kibirichia/Kibirichia/6194. She states that in December 2025, the title deed was processed and issued to her. The interested party adds that her parcel is Kibirichia/Kibirichia/6439. She contends that soon after the Lower Court rendered its judgment, the applicant started trespassing on her land. 11.The interested party adds that she lodged a complaint against the applicant for trespass. She urges the court not to grant the orders sought because the applicant has approached it with unclean hands. She urges the court to dismiss the application. 12.The court has considered the application, the response to the application, and the parties’ respective submissions. Through the application, the applicant seeks an interlocutory injunction and an inhibition. By and large, an inhibition is an interlocutory injunctive order barring the registration of dealings in a land parcel register. Consequently, the key issue to determine in this ruling is whether the application satisfies the criteria upon which a first appellate court exercises jurisdiction to issue an interlocutory injunctive order under Order 47 rule 6(6) of the Civil Procedure Rules. 13.It is important to observe from the onset that, although the applicant did not cite Order 42 rule 6(6) of the Civil procedure Rules, it is clear from the prayers in the motion that he invited the court to exercise the jurisdiction granted to the court under the above provisions. Order 42 rule 6(6) provides as follows:“Notwithstanding anything contained in subrule (1) of this rule, the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just, provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” 14.Over the years, Kenya’s superior courts have developed principles that guide the exercise of the above jurisdiction (see (i) Madhupaper International Limited Vs Kerr [1985] KLR 840; (ii) Venture Capital & Credit Limited Vs Consolidated Bank of Kenya Ltd; Civil Application No. 349 of 2003 (174 of 2003 UR); and (iii) Butt V Rent Restriction Tribunal (1982) KLR 417). 15.Suffice it to state that, the jurisdiction of a first appellate court to grant an interlocutory injunction under Order 42 Rule 6(6) of the Civil Procedure Rules is a discretionary and equitable one. Secondly, the discretion will not be exercised in favour of an applicant whose appeal is frivolous; the applicant must demonstrate that a reasonable argument can be put forward in support of his appeal. Thirdly, the discretion should be refused where it would inflict greater hardship than it would prevent. Fourthly, the applicant must show that refusal to grant the injunction would render his appeal nugatory. Fifth, the court is to be guided by the principles in in Giella Vs Cassman Brown & Company Ltd [ 1973] EA 358. Lastly, whenever disposing a plea for an interlocutory injunction, the court does not make definitive or conclusive pronouncements on the key issues in the dispute. 16.It does emerge from the materials presented in the present application that the appellant and the respondent are son and father. The land that is the subject matter of this appeal is ancestral land. The respondent inherited the said land from his late father as a subdivision of parcel number Kibirichia/Kibirichia/6194 through succession. At this point, there is evidence that the suit land was transferred to the interested party in December 2025 immediately after the Lower Court rendered the impugned Judgment. 17.The applicant/appellant faults the trial court’s judgment and contends that it misapprehended the doctrine of customary trust. It is his case that the land may be disposed by the interested party. Neither the respondent nor the interested party has contested the fact that the suit land is inherited land. 18.Taking the above into account, the court comes to the finding that the applicant has demonstrated an arguable ground of appeal relating to the application of the doctrine of customary trust. The court also finds that the application satisfies the first and second limbs of the requirements in Giella v Cassman Brown (Supra) in so far as there is need to preserve the suit land. 19.Given the fact that the suit land is now registered in the name of the interested party, the best the court can do at this point is to preserve the status-quo in terms of the current registration. The balance of convenience does not favour injuncting a registered proprietor against accessing land that is registered in her name. Consequently, prayers 4 and 6 are declined. Costs of the application shall be in the appeal. 20.In the end, the amended application dated 29/4/2026 and the application dated 3/3/2026 are disposed as follows:a.The application dated 3/3/2026 is marked “spent” and costs of the said application shall be in the appeal.b.Pending the hearing of this appeal, an order of inhibition is hereby issued maintaining the status-quo relating to the current registration of land parcel number Kibirichia/Kibirichia/6439.c.Unless extended by the court, the inhibition shall lapse on expiry of nine (9) months from today.d.Costs of the two applications shall be in the appeal. DATED, SIGNED AND DELIVERED AT MERU THIS 9TH DAY OF JUNE, 2026.B M EBOSO [MR]ELC JUDGE