https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4698

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC CASE NO.E006 OF 2023 (OS)** **(CONSOLIDATED WITH BUSIA CMC ELC NO. E121 OF 2022)** **SCOLASTICA MUNYEKENYA………………………..….1ST APPLICANT** **PASCHAL APOPO………..……………………………..….2ND APPLICANT** **MARITINA OKUMU OTORO** **(Proposed 3rd Applicant) …………………..…………….3RD APPLICANT** **WINFRED AKUMU MUJEMA (Proposed 4th Applicant) …………………………………………………..4TH APPLICANT** **VERSUS** **CYRINE BENJADID APOPO………………………....1ST RESPONDENT** **OCTAVIAN AUSTINE APOPO………………….…….2ND RESPONDENT** **DEOGRACIOUS APOPO…………………………….…3RD RESPONDENT** **EMMANUEL WANDERA………………………….……4TH RESPONDENT** **RULING** 1. Vide the Chamber Summons application dated 9th March 2026, the applicants herein seek the following orders: - 2. Spent 3. Spent 4. That this Honourable Court be pleased to join Maritina Okumu Otoro and Wilfred Akumu Mujema as the 3rd and 4th applicants respectively and that the pleadings be amended accordingly to reflect their standing as primary beneficiaries and widows of the un administered estate of the 1965 patriarch, Mr. Otoro; 5. That a temporary injunction be and is hereby issued restraining the 1st through 4th respondents, by themselves, their agents or servants from evicting the applicants, subdividing, selling, leasing or in any way dealing with land parcels **Samia/Luchululo/149, 150 (now 2411), 733 and 1249.** 6. That the respondents be and are hereby restrained by an order of injunction from exhuming, disturbing or in any way interfering with the remains of the late Maurice Munyenywe interred on the suit land; 7. That the Honourable Court be pleased to stay the execution of the November 2022 Land Registrar’s survey report and any consequent site visits until the issues of customary trust and section 35 life interests are fully adjudicated; 8. That leave be granted to the applicants to file an amended originating summons within 14 days to incorporate the 60-year history of the un administered 1965 estate. 9. That the cost of the application be in the cause. 10. The application is premised on the grounds on its face and supported by the affidavits of the 1st applicant Scolastica Munyekenya, sworn on 9th May 2026. 11. In reply and opposition of the application, the respondents, through the affidavit (replying) of the 1st respondent, Cyrine Benjamin Apopo have deponed as follows: - **“……………………………………………** **That it is within my personal knowledge that on 31/10/2023 this court (Olao J.) ordered the consolidation of this suit with Busia CMC ELC No. E121 of 2022. The Court further ordered that the originating summons herein be converted into a plaint and the plaint in the consolidated suit be the counterclaim. The court further allowed my co-defendants and I to amend our plaint in the said No. E121 of 2022. The said plaint was duly amended (see annexure CBA 1);** **5. ….** 1. **The prayer to join Winfred Akumu Mujema an applicant is misconceived, incompetent and an abuse of the court process;** 2. **The prayer for injunction in respect of L.R Nos. Samia/Luchululo/149, 773 and 1249 is otiose. My co-defendants and I have absolutely no interest in those parcels of land. We respect the proprietary rights of those who own and reside thereon. On the other hand, we own LR No. Samia/Luchululo/150 (now 2411) which we fully occupy. None of the applicants resides on that parcel.** 3. **As law abiding citizens we know, exhumation of a human body once buried can only be done on the strength of a Court Order. We have sought such an order in amended plaint in Busia CMC ELC No. E121 of 2022. There is no threat of exhumation to sustain the relief sought.** 4. **There is also no threat of implementing the Land Registrar’s report. In our amended plaint aforesaid, we have sought an order directing the registrar to fix and plant the correct boundary. Implementation of the said report is therefore contingent on this court’s decision on the issue. The prayer is thus misconceived.** 5. **The applicants have not annexed a draft amended originating summons to enable me form an informed opinion thereon.** **6. ………………...** **7…………………** **8. That I am also informed by my advocate on record which information I verily believe to be true that from the dispositions in the supporting affidavit, the applicants propose to introduce the concept of overriding interests, customary trust and life interest. These claims cannot be litigated alongside a claim based on adverse possession.** **9. That in the premises, the application before the court is incompetent, Inept, misconceived, frivolous and vexatious….”.** 1. In a rejoinder, the applicants filed a further affidavit sworn by Winfred Akumu Mujema in which they have inter alia deponed as follows: - **“……………………………………………………………………….** **4. That the replying affidavit is fundamentally undermined by the respondents’ own prior sworn evidence. In their earlier replying affidavit sworn on 16th march 2023 in response to the notice of motion dated 27th February 2023, the 1st respondent, Cyrine Benjamin APopo, deponed at** ***“That in the aforesaid suit the Applicants’ position is that we hold the suit land (2411) in trust for the deceased’s family. It is therefore a contradiction for them to now bring a suit claiming entitlement by adverse possession.”*** **5. That sworn admission that the respondents hold parcel 2411 in trust for the deceased’s family is a judicial admission of the highest order. It demolishes the respondent’s current case. A trustee cannot, while the trust subsists, assert absolute title against the beneficiaries of that trust. By their own words, the respondents are trustees, not absolute owners. The entire edifice of their registered title falls subject to this trust….** **6 ………………………….** **34. All three of us are widows. All three of us lack title. All three of us are being denied our inheritance through a combination of the patriarchal structure of the 1977 of the registration, the respondents’ aggressive litigation and the failure to administer the 1965 estate. This is precisely the pattern of gender-based land injustice that article 60(1) was designed to end.** **35. That in the light of the foregoing, I humbly pray that this Honourable Court be pleased to grant the applicants the chamber summons application as prayed.”** 1. Pursuant to directions given on 24th March 2026 that the application will be disposed of by way of written submissions, parties filed submissions which I have read and considered. 2. The issue arising from the application, the responses thereto and the submissions by the parties, is whether the applicant has made up a case for being granted the orders sought or any of them. 3. Concerning that issue, the applicants through the instant application, have sought a myriad of orders, some of which do not arise either expressly or implicitly from their pleaded case, the Originating Motion dated 24th February, 2023. The prayers sought by the applicants, which do not arise from their pleadings are: - 4. The prayer for a temporary injunction be and is hereby issued restraining the 1st through 4th respondents, by themselves, their agents or servants from evicting the applicants, subdividing, selling, leasing or in any way dealing with land parcels **Samia/Luchululo/149, 150 (now 2411), 733 and 1249.** 5. The prayer for an order of injunction from exhuming, disturbing or in any way interfering with the remains of the late Maurice Munyenywe interred on the suit land; and the 6. Prayer for stay of the execution of the November 2022 Land Registrar’s survey report and any consequent site visits until the issues of customary trust and section 35 life interests are fully adjudicated. 7. By seeking those prayers, through the instant application, the applicants have violated the provisions of **Order 2 Rule 4** of the Civil Procedure Rules which prohibits parties from departing from their pleadings, unless by way of amendment of the pleadings. There being no pleadings filed by the applicants on which the said prayers can hinge, I find those orders to be unsustainable for that reason and the reasons that parties are bound by their own pleadings and that issues for the court’s determination arise from the pleadings filed by the parties. In the absence of any prayer for injunction or a permanent injunction restraining the respondents from undertaking any of the activities, the applicants seek to restrain them (the respondents) from undertaking, the prayers for temporary injunction and/or stay of execution are but without substratum on which they can hinge. I say that because a chamber summons or notice of motion is not a pleading capable of standing alone. They can only hinge on a party’s existing suit unless the applicant uses them to originate a separate suit/application as happens in the cases of miscellaneous applications. In that regard, I am persuaded by the decision in the case of **Fredrick Mwangi Nyaga v Garam Investments and another (2013)e KLR** where **Havelock J** stated/held:- **“Let me state that I do not consider a Notice of Motion to be a pleading…In my view, a Notice of Motion is part of proceedings in a suit…”** 1. That being my view of those prayers, I find and hold that the applicant cannot sustain them as they don’t flow from the pleadings filed by them. 2. Concerning the prayer for leave to amend their pleadings, whilst in their application and the submissions filed in respect thereof, the applicant have made it clear that their intention is to urge a case based on trust, unfortunately, they have not annexed the intended amended Originating Summons to enable the respondents appropriately address the intended amendments and to give the court an opportunity to consider it on its merits. 3. In the case of **Josephat Mwangi Moracha & another v HFC Limited (2021) e KLR** faced with a situation similar to the one before me, where the applicants had not annexed to their application for leave to amend his pleadings a draft of the intended amended pleadings, the Court stated/held: - **“Among the conditions attached to grant an application for amendment is that no new or inconsistent cause of action was introduced, no vested interest or accrued legal right was affected and that the amendment could be allowed without injustice to the other side.** **Without annexing a draft further amended plaint, the respondents herein are deprived of the opportunity to determine if a new or inconsistent cause of action is introduced or vested interest or accrued legal right has been affected and that the sought amendment could be allowed without injustice to them. In the circumstances, the failure to annex the draft amended plaint is fatal to the plaintiffs’ application as it is incapable of informed response from the respondents.”** 1. The contention by the applicants that they need to plead trust as their main claim and adverse possession as the alternative prayer, in my view, would be a material departure from their pleaded case. In any event, it is trite law that a claim for trust is inconsistent or incompatible with a claim for adverse possession. In that regard, see the case of **Mbasa v. Mbasa & another (Civil Appeal E034** **of 2021) (2025) KECA 1420 (KLR) (31st July 2025) (Judgment)** where the Court of Appeal stated/held:- **“We do not think that it is tenable for the appellant to claim his entitlement to the suit property in accordance with Luo customary law and the same time claim it through adverse possession. The two are mutually exclusive.”** 1. Regarding the prayer for joinder of Winfred Akumu Mujema, an applicant to the application, the prayer cannot be granted in the circumstances of this suit as it would make her both a plaintiff and defendant in the same suit. 2. In my considered view, the issues raised in the application can best be addressed by either withdrawing the claim for adverse possession and filing a fresh suit based on the alleged trust or seeking leave of the court to address the said issues by filing a further affidavit to address the issues raised in the respondents’ suit which was admitted as a Counterclaim to their suit and not by filing an amended Originating Summons. 3. The upshot of the foregoing is that the applicants have not made up a case for being granted the orders sought. Consequently, I dismiss the application with costs to the respondents. **Ruling dated, signed and delivered at Nyahururu this 14th day of July, 2026.** **L. N. WAITHAKA** **JUDGE** **In the presence of:** Ms Naliaka for the Applicant Mr Omondi for the respondent Court Assistant: Bedan