https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4508

Mbecha (Suing as the Administrator of the Estate of the Late Grace Adisa Etyang) v Nyaberi & another (Enviromental and Land Originating Summons E003 of 2020) [2026] KEELC 4508 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4508 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Enviromental and Land Originating Summons E003 of 2020 CK Yano, J July 16, 2026 IN THE MATTER OF SECTIONS 7, 13, 17 & 38 OF THE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA AND IN THE MATTER OF ORDER 37 RULES 7, 8 AND 18 OF THE CIVIL PROCEDURE RULES 2010 AND IN THE MATTER OF LAND PARCEL NUMDER USAIN GISHU/KIMUMU/168 (CURRENTLY UASIN GISHU/KIMUMU SETTLEMENT SCHEME No. 3657) Between elina Kanaiza Mbecha (Suing as the Administrator of the Estate of the Late Grace Adisa Etyang) Plaintiff and Francis Pius Omweri Nyaberi 1st Defendant Ronald Onduko 2nd Defendant Ruling 1.This ruling relates to the application dated 22nd January, 2026 filed by the Plaintiff/Applicant, seeking for orders that:-1.Spent.2.Spent3.This Honourable Court be pleased to issue a temporary injunction restraining the Defendants, their agents, servants or anyone acting on their behalf from entering, occupying, interrupting, trespassing, transferring, wasting, encumbering or in any way interfering with the Plaintiff’s possession on the Land Parcel No. Uasin Gishu/Kimumu/168, now Uasin Gishu/Kimumu Settlement Scheme No. 3657 pending the hearing and determination of the originating Summons.4.In the alternative, there be an order for maintenance of status quo pending the hearing and determination of this application and thereafter hearing and determination of the suit5.Costs of this application be provided for. 2.The application is based on the grounds laid down in the Motion, as well as the Plaintiff/Applicant’s Supporting Affidavit of even date. The Plaintiff avers that she filed suit in her capacity as the Administrator of the estate of the late Grace Adisa Etyang. The Plaintiff’s case is that in 1994, the deceased purchased 0.5 Acres out of Land Parcel No. Uasin Gishu/Kimumu/168 from the 1st Defendant. That after purchase, she was given vacant possession and she immediately went into occupation thereof. She depones that on subdivision, the land purchased is currently known as Uasin Gishu/Kimumu Settlement Scheme No. 3657 (the suit property). 3.It is the Plaintiff’s case that the deceased occupied the land openly, peacefully, exclusively and continuously without interruption, force, secrecy or permission from the 1st Defendant through her lifetime, and upon her demise, through her estate. The Plaintiff claims that she has now discovered that the subdivision that gave rise to the suit property was irregular and malicious, without regard to longstanding occupation, and aimed at defeating the interests of the deceased’s estate. 4.The Plaintiff states that the sale and subdivision was without legal or equitable interest, as the 1st Defendant’s title had been extinguished by operation of the law. She claims that the deceased had extensively developed the land, even employed a caretaker, and remained on the land for over 30 years. The Plaintiff avers that the Defendants title and interest was extinguished in 2006, and he subsequently held the land subject to the Plaintiff’s overriding occupation. She claims that the 1st Defendant acquired eviction orders in Eldoret CM ELC Case No. E115 of 2025 without informing or involving the deceased’s estate. 5.It is the Plaintiff’s case that the 1st Defendant intends to execute the said orders pursuant to the said order dated 01.10.2025. She termed the eviction orders unlawful, unconstitutional and cannot defeat rights accrued through adverse possession. The Plaintiff adds that unless restrained, the Defendants will evict the Plaintiff from the suit land, thus it is in the interests of justice that the application be allowed. 6.The 1st Defendant opposed the application through his Replying Affidavit sworn on 3rd February, 2026. He claims that the parcel of land is occupied by the 2nd Defendant, who took possession from him. The 1st Defendant claims that he has been in possession since 1976. The 1st Defendant admits that the deceased did in fact purchase a portion of Uasin Gishu/Kimumu/168, but states that she never took possession. He claims that he is the one that undertook the developments on the land alongside the 2nd Defendant. 7.The 1st Defendant further claimed that the deceased declined to sign the application for Land Control Board (LCB) Consent, and requested for a refund, which he acceded to and paid her KShs. 200,000/- in April, 2005. The 1st Defendant denies that the deceased was ever in possession of the land, or that her family had been on the land. The 1st Defendant further denies that any such possession was adverse or that the deceased acquired any prescriptive rights, thereby, his title was never extinguished as claimed until he transferred the land to the 2nd Defendant. 8.The 1st Defendant asserts that he had a valid interest to pass to the 2nd Defendant, thus the transfer was lawful and valid. He claims that the beneficiaries of the Deceased’s estate were not on the land, so the eviction order was aimed at him, not the Plaintiff. The 1st Defendant states that the 2nd Defendant is a bona fide purchaser for value, and that the Plaintiff has not met the requirements for grant of an injunction, as an eviction order has no effect on someone not residing in the suit land. The 1st Defendant asked that the application be dismissed with costs. 9.The 1st Defendant also included an Affidavit sworn by one Medina Abrahaman Sheikh on 3rd February, 2026. She claims to have occupied the suit land between the years 1997-2000. That sometime in 2000-2001, she moved on to parcel no. Uasin Gishu/Kimumu/1929, which borders parcel no. Uasin Gishu/Kimumu/3657. She swore that the deceased never occupied the suit land or its mother title, and that the same was always occupied by the 1st Defendant since 1997 until he was recently removed. 10.The 2nd Defendant equally opposed the Application through his Replying Affidavit sworn on 10th February, 2026. He averred that he is the sole registered owner of the suit property, having purchased it from the 1st Defendant on 29.05.2025, and the same was transferred to him. He claims that prior to purchase, he conducted due diligence then visited the area and confirmed that the land belonged to the 1st Defendant. He avers that the developments on the land belong to him only. Further, that the application is an abuse of court process, is incompetent and ought to be dismissed with costs. 11.The 2nd Defendant has also included an Affidavit by Jackson Kipwambok Ngetich, who claims to have purchased Uasin Gishu/Kimumu/841, that borders Uasin Gishu/Kimumu/ 3657 in 1996. He claims that he moved into the land in 1996 and swore that the deceased has never occupied the suit property, as the same was occupied by the 1st Defendant since 1997 until he left recently. 12.Reacting to the 1st and 2nd Defendants’ responses, the Plaintiff filed a Supplementary Affidavit dated 17th April, 2026 denying the averments therein. The Plaintiff reiterated that upon purchase, the deceased was given vacant possession, took over actual occupation immediately and remained on the land until her demise. That the said actual possession continues through her estate, comprising caretakers and family members. The Plaintiff thus refuted the allegation that the 1st Defendant occupied the land since 1976, terming it false and inconsistent with his conduct of selling the land to the deceased in 1994. She deponed that the deceased had in fact constructed a residential house, planted trees, erected a perimeter fence and cultivated the land. 13.The Plaintiff reiterated that the deceased’s estate lawfully continues the open, peaceful, exclusive and uninterrupted possession that was commenced by the deceased. She denied the claim that the agreement of 1994 was rescinded or that the 1st Defendant refunded KShs. 200,000/- to the deceased in April, 2005. The Plaintiff further disputed the alleged acknowledgement note thereto. She urged that had the deceased vacated the land in 2005 as alleged, there would have been no need to require the eviction orders in 2025. The Plaintiff averred that the Defendants’ Affidavits contradict each other, and pointed out that the 2nd Defendant acquired the land after it had been developed by the Plaintiff. 14.The Plaintiff claims that the destruction and interference occasioned by the 2nd Defendant including damage to crops, trees and structures confirms the Plaintiff’s occupation. The Plaintiff further avers that the deceased’s rights crystallised in 2006, and any transfer thereafter was subject to her overriding interests, and transferred no legal interest. For this reason, the Plaintiff states that the 2nd Defendant cannot be a bona fide purchaser for value without notice. She insists that the eviction order was obtained without knowledge of the deceased’s estate, and is thus unconstitutional, unlawful and could not defeat her rights. 15.The Plaintiff deponed that on 19.01.2026, she was summoned to the Chepkoilel Area Chief’s Office to attend a meeting relating to the suit land. That being unable to attend, she sent her cousin who was residing on the land and her advocate to represent her. That it became clear at the meeting that the Respondent sought to evict the Plaintiff’s caretakers from the land, and her advocates presented the necessary documents evincing the deceased’s interest and occupation. Further, that despite this, the Defendants still intend to evict the Applicant and destroy the remaining developments on the land, thus occasioning irreparable loss and rendering the suit nugatory. She urged that it is thus equitable and in the interest of justice that the orders sought in the present application be granted. 16.The Plaintiff also filed an Affidavit dated 7th April, 2026 sworn by one Martha Kichwa, who deponed that she is a caretaker on behalf of the Plaintiff. She confirmed attending the meeting at the Chief’s office on 19th January, 2026. She asserts that she has lived on the suit land with her parents and their entire family for over 30 years. She confirmed that they have been in actual occupation of the suit land and developed and cultivated it, and that they have never vacated it at any time. Submissions: 17.The court directed that the present Application be canvassed by way of written submissions. In compliance with the said directive, the Plaintiff filed her written submissions dated 17th April, 2026 in support of her Motion. The 1st and 2nd Defendants filed joint submissions dated 23rd April, 2026 opposing the Motion. Analysis and Determination: 18.This court has considered the Application herein alongside the Affidavit in support thereof and the Replying Affidavits by the Defendants. The Court has also read and duly considered the competing Submissions filed by Counsel on behalf of their respective parties in support of their various positions. The issues arising are whether the Plaintiff’s present Application is merited. 19.Without a doubt, an order of temporary injunction as sought in the present application is an equitable remedy granted at the court’s discretion. The correct principles in granting an interlocutory order of injunction were laid down in the case of Giella vs Cassman Brown & Co Limited (1973) EA 358, where the Court held that:-“The conditions for the grant of an interlocutory injunction are 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.” 20.The question which therefore arises is whether the application meets the threshold set for the granting of orders of temporary injunction. To do so, the court must interrogate the Plaintiff’s case, and determine whether she has satisfied the above three conditions. 21.First, an Applicant must establish that they have a prima facie case with a probability of success. As to what constitutes a prima facie case, in Mrao Ltd vs First American Bank of Kenya & 2 Others (2003) KLR 125, the Court of Appeal defined a prima facie case as:-“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” 22.In addition, the Court of Appeal in Nguruman Limited vs Jan Bonde Nielsen & 2 others (2014) eKLR, further expounded on the issue of prima facie case as follows:-“ 32.… The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.” 23.An injunction therefore, is granted very sparingly and only in exceptional circumstances such as where the Applicant’s case is very strong and straight forward. In this case, the Plaintiff has annexed an agreement for sale dated 10th May, 1994 showing that the deceased indeed purchased a portion of Uasin Gishu/Kimumu/168 measuring 0.5Acres from Francis Pius Omweri Nyaberi, the 1st Defendant herein. The agreed consideration was KShs. 130,000/-. She also annexed a copy of a Land control board Application form duly signed by 1st Defendant as the owner. 24.The Defendants both deny the Plaintiff’s claim of being in possession of the land. The first Defendant further claims to have refunded the consideration by paying the deceased an agreed sum of KShs. 200,000/- evidenced by an acknowledgment slip annexed to his Affidavit. This is denied by the Plaintiff who has also disowned the acknowledgment note. 25.The Plaintiff has, however, annexed photographs showing a house standing on what she alleges to be the suit land. The photographs also show that the land is fenced and there are trees and crops growing thereon. In short, the land is indeed occupied as alleged by the Plaintiff. 26.What does not add up at this preliminary stage are the contradicting claims by the Defendants. Medina Abrahaman and Jackson Kipwambok Ngetich support the Defendants’ claim that the deceased never occupied the land, and that the 1st Defendant was in possession thereof from 1997 until he was removed. I however note that the 1st Defendant claims to have been in possession of the land since 1976, and not 1997 as claimed. In addition, how can the said Medina Abrahaman have occupied the land in 1997-2001 if the 1st Defendant was in occupation of the land? 27.Moreover, although the Defendants claim to be the ones who developed the land, none of them have annexed proof of their alleged occupation of the land. I am aware that these are matters that will be fully dealt with at the trial, and the Defendants may have a plausible explanation for these inconsistencies. Nevertheless, under the prevailing circumstances at this preliminary stage, I find the Plaintiff’s account more believable. The Plaintiff has therefore established a prima facie case. 28.Secondly, a party needs to establish that they might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. In Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR, the court explained this condition of irreparable injury as follows:-“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury. The defendant has been collecting rent since the year 2005 and therefore the issue of irreparable harm if injunction is not granted should not arise so long as the matter is fast-tracked for hearing.” 29.In the case herein, the Defendants denied this, and instead submitted that if the order sought is denied, the Plaintiff stands to suffer no demonstrable harm. They further submitted that no irreparable harm has been demonstrated by the Plaintiff. 30.The Plaintiff has, however, submitted that she faces an imminent and real risk of grave prejudice which includes eviction from a long standing home occupied for over three decades, demolition of permanent residential structures erected on the suit property, destruction of trees, crops, fencing and other developments forming the Applicant’s livelihood and dispossession from land for which rights have already accrued by operation of law. 31.Having seen that there are structures on the land which are claimed to belong to the deceased’s estate, it is indeed possible that not issuing the injunction will mean that they may be evicted from the suit land before this suit is heard and determined. The risks outlined by the Plaintiff are, to me, indeed real and imminent. For this reason, I find that the Plaintiff has met the requirement of irreparable harm. 32.Finally, where the court is in doubt, it is to determine the matter on a balance of convenience. Under the condition of balance of convenience, a court has to balance and weigh the mischief or inconvenience to either side before granting or withholding an injunction. This concept was well explained in the Pius Kipchirchir Kogo Case (supra), in the following words:-“… The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.” 33.The Plaintiff has satisfied the first two limbs of prima facie case and irreparable injury. In the circumstances of this case, I am convinced that the balance of convenience tilts heavily in favour of the Plaintiff/Applicant. Having met all three conditions, I do hereby find that the Plaintiff’s prayer for a temporary injunction is merited. 34.On the alternative prayer for an order of status quo, I am of the view that the temporary injunction issued herein does suffice to protect the Plaintiff’s interests herein as regards her interests over the suit property. In any event, since it is an alternative relief, and the main prayer herein has been granted, I see no need to further issue an order of status quo. 35.The Application thus succeeds in terms of the order of temporary injunction. As to costs of the Application, since this matter is yet to be heard, I do direct that costs thereof will abide the outcome of the suit. Orders: 36.In the end, the following orders issue with respect to the Plaintiff’s Notice of Motion Application dated 22nd January, 2026:-a.An order of temporary injunction be and is hereby issued restraining the Defendants, their agents, servants or anyone acting on their behalf from entering, occupying, interrupting, trespassing, transferring, wasting, encumbering or in any way interfering with the Plaintiff’s possession on the Land Parcel No. Uasin Gishu/Kimumu/168, now Uasin Gishu/Kimumu Settlement Scheme No. 3657 pending the hearing and determination of the originating Summons.b.The costs of the Application shall abide the outcome of the main suit. 37.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET ON THIS 16TH DAY OF JULY, 2026 VIDE MICROSOFT TEAMS.HON. C. K. YANOELC, JUDGEIn the virtual presence of:-Mr. Momanyi for Defendants/Respondents.Mr. Chirchir for Plaintiff/Applicant.Court Assistant - Laban.