https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3394

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCL CASE NO. E007 OF 2025** **BONIFACE MUTUKU MUINDE...........................1ST PLAINTIFF/APPLICANT** **PATRICK MUTISO MUINDE..............................2ND PLAINTIFF/APPLICANT** **VERSUS** **REGINA WAMBUI MWANIKI......................1ST DEFENDANT/RESPONDENT** **PETER NGINDA MWANIKI........................2ND DEFENDANT/RESPONDENT** **JOHN GATITHU MWANIKI......................3RD DEFENDANT/RESPONDENT** **RULING** **INTRODUCTION** This Ruling arises from a Notice of Motion Application under Certificate of Urgency dated 9th April 2025, filed by the Plaintiffs/Applicants, Boniface Mutuku Muinde and Patrick Mutiso Muinde (hereinafter collectively referred to as 'the Applicants'), seeking inter alia an order of temporary injunction to restrain the Defendants/Respondents from entering, evicting the Applicants from, or in any manner interfering with their occupation of Land Parcel No. MBEERE/WACHORO/1537, now subdivided into parcels MBEERE/WACHORO/7632, 7633 and 7634 (hereinafter 'the suit properties'). The Application is premised on the Originating Summons through which the Applicants claim to have acquired title to the suit properties by adverse possession, having been in open, continuous, exclusive and uninterrupted possession thereof since 1982 — a period in excess of twelve (12) years from the date of registration of the original title in favour of the late Mwaniki Ngina alias Eustace Mwaniki Ngina on 20th January 2012. The Defendants/Respondents, Regina Wambui Mwaniki, Peter Nginda Mwaniki and John Gatithu Mwaniki, who are the legal administrators and personal representatives of the estate of the late Mwaniki Ngina alias Eustace Mwaniki Ngina (Deceased), oppose the Application in its entirety. The 1st Applicant, Boniface Mutuku Muinde, swore a Supporting Affidavit on 9th April 2025 and a Further Affidavit on 1st April 2026. The Applicants' case is as follows: 1. That the suit land, MBEERE/WACHORO/1537, was registered in the name of the late Mwaniki Ngina on 20th January 2012, having initially been allocated to him by the Government through the Settlement Fund Trustees in the early 1980s; 2. That the Applicants have been in open, actual, continuous and uninterrupted possession and occupation of the suit land since 1982, in the full knowledge of the late Mwaniki Ngina and his children, who are the Respondents herein; 3. That neither the deceased nor the Respondents have ever occupied or utilized any portion of the suit land since the 1980s; 4. That the Applicants have established their homes on the suit land, constructed houses, undertaken farming and buried their kin thereon; 5. That the Respondents illegally caused the suit land to be subdivided in June 2024 into parcels MBEERE/WACHORO/7632, 7633 and 7634, without subjecting the same to succession proceedings, following the death of the original registered owner in 2019; 6. That on 23rd July 2024, the 2nd Respondent served the Applicants with notices to vacate the suit land — this being the first assertion of ownership rights against the Applicants — by which time the registered owner's rights had been extinguished by operation of law; 7. That the Applicants have been in adverse possession of the suit land for a period exceeding twelve (12) years from the date of registration of the title on 20th January 2012, and are thus entitled to be registered as proprietors. The 2nd Respondent, Peter Nginda Mwaniki, with the authority of the co-Respondents, filed a Replying Affidavit sworn on 23rd June 2025 opposing the Application on the following grounds: 1. That a previous suit on the same subject matter — Embu ELCOS No. E018 of 2023 — was withdrawn by the Applicants on 8th April 2025, with costs awarded to the Defendants, which costs had not been paid at the time of filing the instant suit; 2. That the instant suit involves the same cause of action and subject matter as the previous suit, raising the issue of res judicata; 3. That the Applicants' case is internally inconsistent — in the previous suit they claimed the land was given to them by the deceased, whereas in the present suit they claim hostile and adverse possession; 4. That the suit land was lawfully allocated to the late Mwaniki Ngina by the Government through Settlement Fund Trustees, and the Applicants have no entitlement to it, being the children of the late Jonathan Muinde Mwatu who was allocated a separate parcel, MBEERE/WACHORO/1522; 5. That the Applicants entered the suit land as illegal occupiers and trespassers, and have compounded their illegality by selling portions of the suit land to third parties; 6. That the Applicants have not demonstrated continuous, open, uninterrupted, exclusive and non-permissive possession for the requisite period of twelve (12) years so as to extinguish the deceased's title. **ISSUES FOR DETERMINATION** The Application raises three principal issues for determination at this interlocutory stage: 1. Whether the Applicants have established a prima facie case with a probability of success; 2. Whether the Applicants stand to suffer irreparable harm or loss if the orders are not granted; and 3. Where the balance of convenience lies. Before proceeding to analyse these issues, this Court considers it appropriate to address the preliminary matters raised by the Respondents, namely the alleged non-payment of costs and res judicata. The Respondents averred that the Applicants had not paid costs arising from the withdrawal of Embu ELCOS No. E018 of 2023. However, the Applicants' Further Affidavit sworn on 1st April 2026 deposes that the said costs have since been fully settled. The Respondents have not filed any affidavit contesting this assertion. This Court accordingly finds that the issue of non-payment of costs has been overtaken by events and does not constitute a bar to the prosecution of the present application. The Respondents contend that the present suit is res judicata by reason of the earlier suit, Embu ELCOS No. E018 of 2023, which was withdrawn. Section 7 of the Civil Procedure Act, Cap 21, Laws of Kenya provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided by such court. The fundamental requirement for res judicata is that the matter must have been 'heard and finally decided.' A withdrawal, by its very nature, does not constitute a final determination on the merits. This principle was firmly articulated in Uhuru Highway Development Ltd -v- Central Bank of Kenya [1996] eKLR, where the Court of Appeal held that for res judicata to apply, there must be a final adjudication on the merits of the case. In the same vein, the Court notes the Applicants' contention — which is not seriously disputed — that the previous suit was additionally defective as it had been instituted against a deceased person. A suit filed against a dead person is a nullity ab initio and incapable of sustaining any valid determination: see Mwangi Ngige -v- Josephat Gachie [2013] eKLR. The instant suit has been properly instituted against the legal administrators and personal representatives of the deceased's estate, thereby curing the fundamental defect in the previous proceedings. The doctrine of res judicata therefore does not apply, and this Court is properly seized of jurisdiction to hear and determine this matter. **ANALYSIS AND DETERMINATION** The principles governing the grant of interlocutory injunctions are well settled in Kenyan jurisprudence. The locus classicus is the celebrated decision of the Court of Appeal in **Giella -v-** **Cassman Brown & Co. Ltd [1973] EA 358**, which established a tripartite test requiring the applicant to demonstrate: first, a prima facie case with a probability of success; second, that the applicant would suffer irreparable harm or injury if the injunction is not granted; and third, if the Court is in doubt on the first two, that the balance of convenience favours the grant of the order. These principles were affirmed and further elaborated upon in **Mrao Ltd -v- First American Bank of Kenya Ltd & 2 Others [2003] eKLR,** where the Court of Appeal comprehensively restated the test for prima facie case in the context of injunctions. In **Mrao Ltd -v- First American Bank of Kenya Ltd (supra**), the Court of Appeal held that a prima facie case is not merely a case that is arguable, but one in which, on the material presented to the court, there is evidence of a right which has prima facie been violated, such that there is a probability that the applicant may succeed in the action. In the present case, the Applicants' claim is premised on the doctrine of adverse possession as embodied in Section 38 of the Limitation of Actions Act, Cap 22, Laws of Kenya, and further underpinned by Article 40 of the Constitution of Kenya 2010 which guarantees the right to property. Section 38(1) of the Limitation of Actions Act provides that where a person claims to have become entitled to land by adverse possession, the court may, on an originating summons, order that the person shall be registered as the proprietor of the land. The law on adverse possession in Kenya is clear: to succeed, a claimant must demonstrate that he or she has been in open, actual, continuous, exclusive and uninterrupted possession of the suit land for a period of not less than twelve (12) years, hostile to and without the permission of the registered proprietor. The running of time commences from the date of registration of the title: see **Wambugu -v- Kamau [1992] 2 KAR 235 and Kimani Ruchine -v- Swift Rutherford & Co. Ltd [1980] KLR 10.** The Applicants contend — and the Respondents do not dispute — that they are currently and have at all material times been in actual physical occupation of the suit land. The evidence on record — including photographs, a surveyor's report attesting to their occupation, and significantly, the notices to vacate served by the 2nd Respondent which implicitly acknowledge the Applicants' physical presence on the land — strongly supports this position. The suit land was registered in the name of the deceased on 20th January 2012. The notices to vacate were served on 23rd July 2024. The period between registration and service of the notices is in excess of twelve (12) years. Even if the Applicants' occupation is reckoned only from the date of registration in 2012, that period had fully elapsed before any step was taken by the registered owner or his estate to assert their rights against the Applicants. The Respondents contend that the Applicants' case is contradictory in that they previously claimed permissive occupation but now claim hostile possession. The Court acknowledges this inconsistency as a matter that may be ventilated at the full trial. However, at this interlocutory stage, the Court is not called upon to resolve contested facts or to determine the ultimate merits. As was held in **Nguruman Ltd -v- Jan Bonde Nielsen & 2 Others [2014] eKLR** by the Court of Appeal, the threshold for establishing a prima facie case at the interlocutory stage is not proof of the case to the required standard, but rather the raising of a serious question to be tried. The Respondents also allege that the Applicants have sold portions of the suit land to third parties. Whilst this is a matter of concern that the trial court will be called upon to examine, it does not, at this stage, conclusively defeat the Applicants' claim to adverse possession, the essence of which is the nature of possession over time. Having regard to the foregoing, this Court finds that the Applicants have established a prima facie case with a probability of success. The threshold in **Giella -v- Cassman Brown (supra**) has been met. The second limb of the Giella test requires the Applicants to demonstrate that they stand to suffer irreparable injury — injury that is incapable of adequate compensation by an award of damages — if the injunction is not granted. The Applicants have established their homes on the suit land, constructed residential houses, undertaken farming, and buried their relatives thereon. They have been in occupation since 1982 — a period of over forty (40) years. An eviction, if effected, would deprive them of their homes and livelihoods in a manner that monetary compensation could not adequately restore. It would also destroy the very substratum of the Originating Summons, which is premised on their continued possession. This Court agrees with the observation in **Ngei -v- Athumani & 6 Others** **(2025) KEELC 1090 (KLR**) that where a party stands to be evicted from land that forms the subject matter of pending proceedings, irreparable harm is readily demonstrated. Furthermore, the Court is mindful that the Applicants' claim is one in rem — it relates to land — and courts have consistently recognized that land holds a unique position in law and in the lives of Kenyan families such that its loss cannot always be compensated by damages: **see Muriithi -v- Muriithi [2014] eKLR.** This Court accordingly finds that the Applicants would suffer irreparable harm if the orders sought are not granted. Where the preceding two limbs are satisfied, the issue of balance of convenience need not strictly arise. However, out of abundance of caution, this Court considers the balance and is satisfied that it tilts firmly in favour of the Applicants. The Applicants have been in occupation of the suit land for over four decades. They have developed it with homes, farms, and have buried their kin thereon. An eviction at this stage, before the substantive case is heard and determined, would cause irreversible disruption to their lives and would in all probability render the proceedings academic. On the other hand, the Respondents' prejudice — if any — is minimal at this stage. On the Respondents' own evidence and by their own admission through the notices to vacate, neither the deceased nor the Respondents have ever occupied or utilized the suit land. Maintenance of the status quo preserves the Respondents' legal rights whilst affording both parties a fair opportunity to have the suit determined on its merits. This Court is guided by the principle that it is more just to maintain the status quo pending a full hearing of the suit than to displace parties who have been in long occupation, only to restore them after trial: see Giella -v- Cassman Brown (supra). The balance of convenience thus favours the Applicants. Having carefully considered the Application, the Affidavits on record, the Written Submissions filed by the Applicants and the applicable law, this Court makes the following orders: 1. That pending the hearing and final determination of the Originating Summons herein, there be a Temporary Order of Injunction restraining the 1st, 2nd and 3rd Defendants/Respondents, whether by themselves, their agents, servants, legal representatives or any other persons acting under their instructions, directly or indirectly, from entering into Land Parcel No. MBEERE/WACHORO/1537, now subdivided into Land Parcels No. MBEERE/WACHORO/7632, MBEERE/WACHORO/7633 and MBEERE/WACHORO/7634, and/or evicting the Plaintiffs/Applicants therefrom, or doing any act whatsoever that may interfere with the Plaintiffs'/Applicants' peaceful and quiet occupation thereof. 3. That costs of this Application shall be in the cause DATED, DELIVERED AND SIGNED AT EMBU THIS 28TH DAY OF MAY, 2026. **HON. E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. Mr. Gachuki for the Appellant 2. Mr. Barasa for the Respondent 3. Ruth C/A