https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/502

**REPUBLIC OF KENYA** **IN THE MAGISTRATE COURT OF KENYA AT UASIN GISHU COUNTY** **COURT NAME: ELDORET MAGISTRATE COURT** **CASE NUMBER: MCELC/E108/2026** **WYCLIFF MUTHIGIA KIMANI VS EUNICE ADHIAMBO AMOLO** **RULING** Applicant’s case 1. Before me for determination is the Notice of Motion application dated 12th June, 2026 brought by the plaintiff/Applicant under Section 1A, 3 and 3A of the Civil procedure Act, Order 40Rule 1,2 and 3 of the Civil Procedure Rules, and article 159 and 162(2) of the Constitution, seeking the following orders: a. Spent. b. That a temporary order of injunction do issue restraining the defendant/respondent, either by himself, his agents or servants, employees and/or any other person acting on her behalf from encroaching, trespassing into, alienating, occupying, cultivating, developing, claiming , leasing or interfering with the applicant/plaintiff peaceful possession and use and/or in any other way whatsoever dealing with the plaintiff's portion of land measuring an 1/8 of an acre of parcel of land known KIPLOMBE/KIPLOMBE BLOCK 2 (KAPSANG SUGE)8 pending the hearing and determination of this application. c. That a temporary order of injunction do issue restraining the defendant/respondent, either by himself, his agents or servants, employees and/or any other person acting on her behalf from encroaching, trespassing into, alienating, occupying, cultivating, developing, claiming , leasing or interfering with the applicant/plaintiff peaceful possession and use and/or in any other way whatsoever dealing with the plaintiff's portion of land measuring an 1/8 of an acre of parcel of land known KIPLOMBE/KIPLOMBE BLOCK 2 (KAPSANG SUGE)8 pending the hearing and determination of the main suit. d. That costs be provided for. 1. The application is premised on the grounds set out on the body of the Notice of Motion and is supported by the affidavit of the Plaintiff/ applicant. In substance, the plaintiff/Applicants contends that sometime on 23rd January, 2023 he purchased a parcel of land from one Noah Lagat who is the beneficial owner of land parcel number KIPLOMBE/ KIPLOMBE BLOCK 2 (KAOSANG SUGE) 8. He deposes that the entire portion of land is registered in the names of Stephen Some Lagat but he bought land measuring approximately an eighth of an acre (!/8) at an agreed price of ksh 430,000/-. He constructed thereon a dwelling house, a a latrine and fenced the plot. The applicant avers that later around the month of January, 2026, the respondent started laying claim over his portion of land together with the development. Respondent’s case 1. In response, the defendant/Respondent filed a replying affidavit sworn on 6th July 2026. The respondent deponed that land parcel no. KIPLOMBE / KIPLOMBE BLOCK 2 (KAPSANG SUGE) 8 remains registered in the names of the late Stephen Some Lagat who is now deceased, that no grant of letters of administration has been issued in respect of the estate of the deceased and the property has never been transmitted to any beneficiary. 2. The defendant /Respondent further deposes that the applicant relies upon a sale agreement relied upon allegedly executed by Noah Kiprotich Lagat and Abraham Kipkosgei Yego who are not the registered proprietors of the suit property, that during the lifetime of the late Stephen Some Lagat, the respondent averred that she paid part of the agreed purchase price directly into his bank account and after his demise, the respondent together with Fanice Enocka completed the payment of the agreed purchase price to Noah Kiprotich Lagat and Abraham Kipkosgei Yego 3. She further deposes that upon acknowledgement of the payment, and following the delivery of possession of the jointly purchased 1/8 of an acre, the land was physically shared between Fanice Enocka and the respondent with each of then taking a1/16 of an acre, FANICE has since taken developed and continued to occupy her portion peacefully , while the respondent remained in exclusive possession of her share and the adjoining 1/16 of an acre she later purchased separately making it 1/8 of an acre. It was the respondent’s evidence on oath that she is the one who has developed the suit property. There exists a competing purchaser’s interest over the suit property and the respondent has been in occupation of the same. Issues for determination 1. The principles regulating the grant of a temporary injunction in this jurisdiction are by now firmly settled. The locus classicus remains the decision of the Court of Appeal for East Africa in Giella –Vs- Cassman Brown & Co Ltd [1973] EA 358, where Spry V-P, at page 360, distilled the threefold test in terms which have since been faithfully applied by our courts: "The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show 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 adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience." These conditions are conjunctive rather than disjunctive, and the Applicant must surmount each of them sequentially before an injunction can issue. 2. Whether the Applicant has established a prima facie case 3. The Applicant's case is founded upon a sale agreement dated 23rd January 2023, entered into between himself and Noah Kiprotich Lagat for the purchase of approximately 1/8 of an acre out of land parcel number KIPLOMBE/KIPLOMBE BLOCK 2 (KAPSANG SUGE) 8 at a consideration of Kshs.430,000/-. The agreement acknowledges receipt of the purchase price by the vendor. 4. The Respondent, on the other hand, has placed before the Court a sale agreement also dated 23rd January 2023, entered into between the same vendor, Noah Kiprotich Lagat, and herself for the sale of approximately 1/8 of an acre out of the same parcel of land. The Respondent has further exhibited an acknowledgement dated 15th May 2023 confirming payment of the purchase price. 5. I have carefully considered the rival agreements and the other material placed before the Court. It is not disputed, at least at this interlocutory stage, that the two agreements bear the same date, were executed by the same vendor and relate to the sale of approximately 1/8 of an acre out of the same parcel of land. Both parties therefore assert a purchaser's interest arising from transactions with the same vendor. 6. The position is further complicated by the competing evidence concerning possession and development of the suit property. The Applicant asserts that he took possession and constructed a dwelling house, a latrine and fenced the property. The Respondent, however, asserts that she is the one in possession and that she undertook the developments appearing in the photographs annexed to her affidavit. The affidavit of Fanice Enocka and the photographic evidence placed before the Court further demonstrate that the question of who purchased, took possession of and developed the disputed portion is itself contested. 7. At this stage, the Court is not called upon to determine conclusively which of the two purchasers acquired the superior contractual or proprietary interest. That is a matter which requires evidence at the hearing of the suit. What is required at this stage is for the Applicant to demonstrate a right which has apparently been infringed so as to call for an explanation or rebuttal. 8. In my view, the existence of the Respondent's competing agreement, executed on the same date by the same vendor and relating to the same portion of land, creates a substantial dispute as to the Applicant's alleged exclusive right over the suit portion. The material presently before the Court does not enable the Court to find, with sufficient clarity at this interlocutory stage, that the Applicant's asserted right is superior to that of the Respondent. I therefore find that the Applicant has not established a prima facie case with a probability of success within the meaning of the principles in Giella v Cassman Brown & Co. Ltd [1973] EA 358 and Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125. 9. Irreparable injury 10. Having found that the Applicant has not established a prima facie case, the second limb of the Giella test does not strictly arise for determination. Nevertheless, I note that the alleged injury relates principally to competing claims to ownership, possession, use and development of the suit property. The evidence before the Court is itself contradictory as to which party is in possession and which party undertook the developments appearing on the suit property. The question of the parties' respective rights over the disputed portion is therefore one that is better resolved upon hearing the substantive evidence. I am consequently unable, at this interlocutory stage, to conclude that the Applicant has demonstrated an injury incapable of adequate compensation by an award of damages should he ultimately succeed. 11. Balance of convenience and preservation of the suit property 12. The Court is not, at this stage, called upon to determine which of the two competing purchasers has the superior right to the disputed portion. To do so on the basis of affidavit evidence would risk determining the substantive dispute before the parties have had an opportunity to present their evidence at trial. The balance of convenience therefore favours preservation of the suit property rather than granting an order which would, in practical terms, confer an advantage upon either purchaser before the substantive dispute is determined. 13. The appropriate course is to preserve the property and prevent any further alienation, transfer, charging, disposal or material alteration thereof pending the hearing and determination of the suit. Such an order does not determine the rights of either party but merely ensures that the subject matter of the litigation remains available for the Court's determination. 14. In the circumstances, I find that the Applicant has failed to satisfy the first limb of the test for the grant of a temporary injunction as set out in Giella v Cassman Brown & Co. Ltd. Accordingly, the Notice of Motion dated 12th June 2026 is hereby dismissed. However, in order to preserve the subject matter of the suit and prevent either party from gaining an undue advantage pending the determination of the substantive dispute, the parties, their agents, servants and/or persons acting through them are hereby directed to maintain the status quo obtaining as at the date of this ruling. In particular, neither party shall sell, transfer, charge, alienate, develop, dispose of or materially alter the suit property or the disputed portion thereof pending the hearing and determination of the suit. The costs of the application shall abide the outcome of the main suit. 15. The matter shall proceed to hearing on its merits without undue delay. Mention on 14th October 2026 for compliance with Order 11 of the CPR. Signed, dated and delivered in Eldoret on this 14th day of August, 2026. M. E. ALIGULA- RM In the presence of: C/A Lepatoiye