[2025] KEELC 88 (KLR)

Mbugua v Issa & Muhia Administrators of the Estate of Issa Mbugua Salim & 2 others (Application E066 of 2024) [2025] KEELC 88 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 88 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Application E066 of 2024

JO Mboya, J

January 16, 2025

Between

Leonard Munyua Mbugua

Plaintiff

and

Halima Issa & Mohamed Mbugua Muhia Administrators of the Estate of Issa Mbugua Salim

1st Defendant

Kassim Kariuki Issa

2nd Defendant

Salim Issa Nganga (Administrator of the Estate of Hawa Njeri Issa

3rd Defendant

Ruling

Introduction And Background: 1. The Plaintiff/Applicant [hereinafter referred to as the Applicant] has approached the court vide Notice of Motion Application dated the 5th November 2024 brought pursuant to inter-alia the provisions of Order 40 Rule 1; Order 51 Rule 1 of the Civil Procedure Rules 2010; Section 1A, 1B, 3, 3A and 63 of the Civil Procedure Act, Chapter 21, Laws of Kenya; and wherein the Applicant has sought for the following reliefs;i.That the Application be certified urgent and service thereof be dispensed with in the first instance.ii.That an Interim Injunction be issued against the Defendants by themselves , servants, employees and or agents from sale, eviction, transfer, disposal, wasting, damaging, alienation and or any other dealing whatsoever of that property in occupation of the plaintiff known as Dagoretti/Riruta/854 [now converted to NAIROBI/BLOCK66/854) (Proposed subdivision described as PLOT C) Measuring 0. 08Ha or thereabouts (hereinafter referred to as the suit property) pending hearing and determination of this application.iii.That an injunction be issued against the defendants by themselves, servants, employees and or agents from sale, eviction, transfer, disposal, wasting, damaging, alienation and or any other dealing whatsoever of that property in occupation of the plaintiff known as Dagoretti/Riruta/854 (now converted to NAIROBI/BLOCK66/854) (Proposed subdivision described as PLOT C) Measuring 0. 08Ha or thereabouts pending hearing and determination of this case.iv.That costs of this Application to the Applicant against the Respondents

2. The instant application is anchored on numerous grounds [totalling 16 in number] which have been enumerated in the body thereof. In addition, the application is supported by the affidavit sworn by one Leonard Munyua Mbugua [the deponent] sworn on the 5th November 2024 and to which the deponent has attached a total of 12 annexures including a copy of the sale agreement dated the 30th November 2001.

3. Upon being served with the subject application, the Respondent filed a Notice of preliminary objection and a Replying affidavit sworn on the 27th November 2024. In particular, the Respondent has contended that the Applicant herein has neither established nor demonstrated the existence of a prima facie case. In any event, it has also been contended that the impugned sale agreement was entered into with a person [vendor], who had no title to and in respect of [sic] the suit property.

4. The subject application came up for hearing on the 20th November 2024 wherein the advocates for the respective parties covenanted to canvass and dispose of the application by way of written submissions. To this end, the court proceeded to and circumscribed the timeline[s] for the filing and exchange of the written submissions.

5. The Applicant herein filed written submissions dated the 30th November 2024; whilst the Respondent filed written submissions dated the 10th December 2024. For coherence, the two [2] sets of written submissions do form part of the record of the court.

Parties’ Submissions: Applicant’s Submissions: 6. The Applicant herein filed written submissions dated the 30th November 2024 and wherein the Applicant has reiterated the grounds at the foot of the application. On the other hand, the Applicant has also adopted the averments contained at the foot of the supporting affidavit sworn on the 5th November 2024 and the supplementary affidavit sworn on the 29th November 2024.

7. Furthermore, learned counsel for the Applicant has highlighted and canvassed two [2] salient issues for determination by the court. Firstly, learned counsel for the Applicant has submitted that the Applicant herein entered into and executed a sale agreement with one Abdul Rahaman Issa Mbugua [vendor], now deceased. Besides, the Applicant has contended that the sale agreement under reference was reduced into writing and thereafter executed by both himself [Applicant] and the vendor.

8. Additionally, learned counsel for the Applicant has submitted that even though the vendor was not the registered owner of the suit property, the vendor was one of the beneficiaries of the estate of Hawa Njeri Issa [now deceased]. To this end, learned counsel has posited that the vendor was selling plot number D being a segment of the suit property measuring 50/100 feet.

9. Other than the foregoing, learned counsel for the Applicant has submitted that the portion of the suit property which the vendor was selling which constituted the portion which had been allocated to the vendor and thus the vendor had the capacity to sell the designated portion.

10. Arising from the foregoing, learned counsel for the Applicant has therefore submitted that the vendor sold unto him his [vendors] interests over the segment known as plot D, which forms part of the suit property.

11. Secondly, learned counsel for the Applicant has submitted that upon entry into and execution of the sale agreement and following the payments of the purchase price, the vendor allowed the Applicant permission to enter upon and occupy the sole portion of the suit property. In this regard, it has been contended that the Applicant indeed entered upon and took possession of the designated plot. To this end, learned counsel for the Applicant has invited the court to take cognizance of the various photographs annexed to the supporting affidavit and which evidences the developments/structures constructed by the Applicant.

12. On the other hand, learned counsel for the Applicant has submitted that the possession and occupation of a portion of land by the Applicant is not in dispute. In any event, learned counsel for the Applicant has submitted that one Muhamed Mbugua [the 1st Defendant herein] filed an application before Nairobi High Court Succession Cause No. 1746 of 1999 and wherein same [Muhamed Mugua] conceded that the Applicant had been in occupation of a portion of the suit property since the year 2001.

13. Arising from the foregoing, learned counsel for the Applicant has submitted that the Applicant has been in occupation of the sole portion of the suit property since the year 2001. To this end, it has been contended that the Applicant thus has a good case premised on the basis of adverse possession.

14. Secondly, learned counsel for the Applicant has submitted that despite the fact that the Applicant has been in possession and occupation of the designated portion of the suit property for more than 23 years, the Respondent[s] herein have since commenced a process which is intended to evict the Applicant from the designated portion of the suit property. In this regard, the Applicant has contended that the imminent eviction is likely to subject him [Applicant] to undue prejudice and irreparable loss.

15. Flowing from the foregoing submissions, learned counsel for the Applicant has invited the court to find and hold that the Applicant has since established a prima facie case with probability of success.

16. In addition, learned counsel for the Applicant has also posited that unless the orders sought are granted, the Applicant shall be exposed to suffer irreparable loss. In a nutshell, learned counsel for the Applicant has invited the court to find and hold that the application beforehand is merited and thus same [application] ought to be allowed.

Respondent’s Submissions: 17. The Respondent filed written submissions dated the 10th December 2024; and wherein same [Respondent] has reiterated the contents of the Replying affidavit sworn on the 27th November 2024. In addition, the Respondents have highlighted four [4] salient issues for consideration by the court.

18. First and foremost, learned counsel for the Respondents has submitted that the Applicant suit is incontestably and irredeemably bad in law. In particular, it has been contended that the Applicant cannot approach the court on the basis that same entered into a sale agreement on the 30th November 2001 and at the same time seek to foster a claim based on adverse possession. In this regard, it has been contended that the claim based on contract and adverse possession are mutually inconsistent and exclusive.

19. In a nutshell, learned counsel for the Respondents has submitted that the Applicant’s claim before the court is therefore barred in law and cannot found [sic] a prima facie case as known to law, or at all.

20. To support the foregoing submissions, learned counsel for the Respondents has cited and referenced inter-alia the case of Richard Wefafwa Songoi v ben Munyifwa Songoi [2016]eKLR; Samuel Kihamba v Mary Mbaisi [2013]eKLR and Paulin Mpaka v Mark Mungiria Muguna [2018]eKLR, respectively.

21. Secondly, learned counsel for the Respondent has also submitted that the sale agreement which is being relied upon by the Applicant was entered into with one Abdul Rahaman Issa Mbugu. However, it has been contended that the said vendor was not the registered owner of the suit property or better still the portion of the suit property which was [sic] being sold to the Applicant.

22. To the extent that the vendor was neither the registered owner nor the proprietor of the suit property or the designated portion, it has been contended that the Applicant herein acquired no lawful rights and/or interests to the designated portion of the suit property.

23. Thirdly, learned counsel for the Respondents has submitted that the suit property which was the subject of the sale agreement was registered in the name of Hawa Njeri Issa, now deceased. Furthermore, it has been contended that by the time the Applicant and the vendor were entering into and executing the sale agreement, no grant of letters of Administration had been issued and/or granted. To this end, learned counsel for the Respondents has invited the court to find and hold that the impugned sale agreement was therefore, illegal, unlawful and void.

24. In support of the foregoing submissions, learned counsel for the Respondent has cited and referenced inter-alia the decision in the case of Virginia Mwari Thuranira v Purity Nkirote Thuranira [2017]eKLR; Joseph Oginga Onyoni & 2 Others v Attorney General & 2 Others [2016]eKLR; Daniel Gituma Merete v Franklin Mutwiri [2017]eKLR and Mcfoy v United Africa Company Ltd [1961] 3 ALL 1169.

25. Fourthly, for the Respondents has submitted that the Applicant’s occupation over and in respect of plot D, which forms a portion of the suit property has been the subject of various interruptions by the Respondents and hence the Applicant herein cannot lawfully stake a claim based on adverse possession.

26. Arising from the foregoing, learned counsel for the Respondents has contended that the application beforehand is devoid of merits and thus same [application] ought to be dismissed with costs.

Issues For Determination: 27. Having reviewed the application dated the 5th November 2024, and the Replying affidavit in opposition thereto and upon consideration of the written submissions filed on behalf of the respective parties, the following issues do emerge and are thus worthy of determination;i.Whether the Applicant has established and demonstrated the existence of a prima facie case with probability of success or otherwise.ii.Whether the Applicant shall be disposed to suffer irreparable loss, if the order sought are not granted or otherwise

Analysis And Determination Issue Number 1 Whether the Applicant has established and demonstrated the existence of a prima facie case with probability of success or otherwise. 28. The Applicant herein has contended that same [Applicant] entered into a sale agreement with one Abdul Rahaman Issa Mbugua [now deceased]. In addition, it has been contended that the sale agreement was reduced into writing and duly executed by both parties.

29. Additionally, the Applicant has contended that even though the vendor was not the registered proprietor of the suit property or the portion of the suit property which was being sold, the vendor [now deceased] was however a beneficiary of one Hawa Njeri Issa [deceased] who was the registered owner of the suit property.

30. Furthermore, the Applicant has contended that the vendor [now deceased] was selling the designated portion which had been allocated to him [vendor]. Suffices it to state that the Applicant has contended that same paid the requisite purchase price and thereafter took possession of the sold portion of the suit property.

31. Other than the foregoing, the Applicant has since contended that same [Applicant] has been in occupation of the sold portion of the suit property from the year 2001. To this end, the Applicant has posited that same has been in possession of the suit property for more than 23 years.

32. At any rate, the Applicant has also contended that his occupation over and in respect of a portion of the suit property has been known to the Respondents herein. In particular, the Applicant has cited and referenced an application that was filed vide Succession Cause No. 1746 of 1999 wherein one Muhamed Issa Mbugua conceded that the Applicant was actually in occupation of a portion of the suit property.

33. It suffices to state that the averments by the Applicant pertaining to entry upon and occupation of a portion of the suit property have not been contested and/ or controverted. To the contrary, the crux of the Respondent’s case is that the sale agreement which entered into between the Applicant and the vendor was illegal, unlawful and void.

34. To my mind, it is imperative to recall and reiterate that the Applicant herein is not seeking to enforce the sale agreement. On the contrary, the Applicant has made reference to the sale agreement as the basis of his entry upon and occupation of the suit property.

35. Other than the fact that the Applicant entered upon and took possession of the designated portion of the suit property on the basis of the sale agreement, the Applicant has contended that terms of the sale agreement were not complied with and thus his continued occupation of the suit property has been adverse/hostile to the Respondent’s title.

36. Furthermore, the Applicant has also contended that neither the legal administrators of the Estate of Hawa Njeri Issa, [deceased] nor the Respondents herein have taken any lawful steps to evict same [Applicant] from the suit property.

37. Arising from the foregoing, it is the Applicant’s case that his possession, occupation and use of the designated portion of the suit property has been adverse to the rights of the Respondents herein. To this end, the Applicant seeks to persuade the court to find and hold that same is entitled to the designated portion of the suit property on account of adverse possession.

38. It is important to point out that whether or not the Applicant would be able to prove and establish his claim on account of adverse possession must await the plenary hearing. However, the concern of the court at this juncture touches on whether the Applicant has established a prima facie case with a probability of success.

39. Without delving deeper into the legality or otherwise of the sale agreement which has been challenged by the Respondents, it suffices to underscore that the Applicant herein has shown that same has been in occupation of the designated portion of the suit property for more than 23 years.

40. Quite clearly, the duration of occupation exceeds the statutory 12 years and if [I say if], the Applicant will demonstrate that the occupation was adverse/hostile to the title of the Respondent, then the Applicant may [I say may] very well be entitled to adverse possession.

41. As for me, I beg to state that the factual matrix espoused vide originating summons and the notice of motion herein demonstrate the existence of a prima facie case. To this end, it is my finding and holding that the Applicant has indeed established a prima facie case with probability of success.

42. Pertinently, what constitutes and amounts to a prima facie case has been the subject of numerous court decisions. Notably, the import and tenor of a prima facie case was highlighted by the Court of Appeal in the case of Mrao Limited v First American Bank of Kenya [2003] eKLR where the court stated and held thus:4. 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 exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.

43. The meaning and import of a prima facie case was re-visited in the case of Jan Bonde Nielsen v Nguruman Limited & 2 others [2016] eKLR where the Court of Appeal stated as hereunder:(24)Starting with what amounts to a prima facie case, the learned Judges expressly accepted the definition given in Mrao Ltd. –v- First American Bank of Kenya Ltd. & 2 Others, (supra). In that case, a prima facie case was defined as follows:“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”.On this definition, the learned Judges expressly stated: -“We adopt that definition save to add the following conditions by way of explaining it. 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 urgent necessity to prevent the irreparable damages 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”.

44. Barring reputation, my answer to issue number one [1] is to the effect that the Applicant herein has established a prima facie case with probability of success. Suffice it to underscore that whether the claim for adverse possession shall succeed or otherwise shall have to await the formal hearing in the conventional manner.

Issue Number 2 Whether the Applicant shall be disposed to suffer irreparable loss if the order sought are not granted or otherwise 45. Having found and held that the Applicant herein has established a prima facie case with probability of success, it is imperative that the court ventures forward and discerns whether the Applicant shall be disposed to suffer irreparable loss. To this end, I shall therefore venture forward and interrogate the question of irreparable loss.

46. To start with, there is no gainsaying that irreparable loss forms and constitute the key pillar/cornerstone upon which an order of temporary injunction is anchored. In this regard, it is paramount for every applicant, the Applicant herein not excepted, who is desirous to partake of an order of temporary injunction to substantiate the loss that is likely to accrue.

47. Put differently, an order of temporary injunction is aimed and/or intended to avert the occurrence of irreparable loss, injury and/ or damage to the Applicant. In this regard, if the loss that is likely to arise is one that is quantifiable and compensable in monetary terms, then an order of temporary injunction ought not issue.

48. To this end, it is imperative to cite and reference the decision in the case of Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86, where the Court of Appeal stated and held as hereunder:If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage.

49. Likewise the centrality of irreparable loss in a matter concerning an application for temporary injunction was re-visited and reaffirmed by the Court of Appeal in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR.

50. For coherence, the Court stated thus:In conclusion, we stress that it must always be borne in mind that the very foundation of the jurisdiction to issue orders of injunction vests in the probability of irreparable injury, the inadequacy of pecuniary compensation and the prevention of the multiplicity of suits and where facts are not shown to bring the case within these conditions the relief of injunction is not available.

51. Duly guided by the ratio decidendi in the decision [supra] it is now apposite to revert to the facts of the instant matter and to ascertain whether the Applicant shall be disposed to suffer irreparable loss or harm.

52. The Applicant contends that same entered upon and took possession of the designated portion of the suit property in the year 2001. In addition, the Applicant has posited that same has remained in occupation of the designated portion of the suit property for more than 23 years.

53. Notwithstanding the foregoing, the Applicant has contended that the Respondents herein have hatched a plot [scheme] and are intent on interfering with his Applicant’s occupation and possession of the designated portion of the suit property.

54. To this end, it is imperative to reproduce the contents of paragraph 13 of the supporting affidavit sworn by the Applicant. For ease of appreciation, the contents of paragraph para_13 13 are reproduced as hereunder;13 .THAT being in occupation of the property I recently saw activities of a surveyor on the title Dagoretti/Riruta/854 generally and upon my enquiry I came to learn of the succession cause HC MISC APP. NO. 15 OF 2007; NAIROBI: In the matter of the estate of Issa Mbugua Salim;and the certificate of confirmation of grant therein rectified on 1/7/2024and the proposed amendment to approved subdivision of the title to the property sketches exhibits hereabove referred to. On the face of the proposed amendment the description of the portion of land I occupy is now described as Plot C as opposed to Plot D in the original subdivision scheme.

55. My understanding of the contents of paragraph 13 of the supporting affidavit and which in any event, have not been controverted, is to the effect that the Respondents herein are actually threatening to interfere with the Applicant’s occupation of the designated property. For coherence, such threat if actualized shall culminate into eviction.

56. To my mind, if the Applicant is evicted or otherwise removed from the designated portion of the suit property, same [Applicant] shall be disposed to suffer irreparable loss.

57. Additionally, there is no gainsaying that the eviction of the Applicant from the designated portion of the suit property during the pendency of the originating summons, may also be tantamount to defeating the Applicants claim. Suffice it to underscore, that a claim for adverse possession is anchored on occupation, possession and use and once such possession and occupation is defeated, then no doubt the claim for adverse possession is rendered redundant.

58. Suffice it to state thar whichever perspective is deployed, it is my finding and holding that the Applicant herein shall be disposed to suffer irreparable loss, harm and/ or damage; unless the orders of temporary injunction are granted.

59. Before departing from this issue, it is instructive and apposite to remind ourselves of what constitutes irreparable loss. In this regard, it suffices to reiterate the decision in the case of Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others [2015] eKLR, where the Court of Appeal elaborated on the meaning and import of what constitutes irreparable loss.

60. Instructively, the Court stated as hereunder:“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury.Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”

Final Disposition: 61. Flowing from the analysis [details highlighted in the body of the ruling], it is crystal clear that the Applicant herein has met and satisfied the requisite ingredients that underpin the grant of an order of temporary injunction.

62. Consequently and in the premises, the final orders of the court are as hereunder;i.The Application dated the 5th November 2024 be and is hereby allowed.ii.There be and is hereby granted an order of temporary injunction restraining the defendants by themselves, servants, employees and or agents from sale, eviction, transfer, disposal, wasting, damaging, alienation and or any other dealing whatsoever of that property in occupation of the plaintiff known as Dagoretti/Riruta/854 (now converted to Nairobi/block66/854) (Proposed subdivision described as Plot C) Measuring 0. 08Ha or thereabouts pending hearing and determination of this case.iii.Costs of the Application shall abide the outcome of the suit.

63. It is so ordered.

DATED, SIGNED AND DELIVERED ON THE 16THDAY OF JANUARY 2025OGUTTU MBOYAJUDGE.In the presence of:Benson – Court Assistant.Ms. R W Chege for the Plaintiff/Applicant.Mr. Amutala for the Defendants/Respondents.