https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3866

Motatiro (Suing as the legal representative of the Estate of Gimung'aya Motatiro) v Muhindi & 12 others (Environment and Land Case E007 of 2025) [2026] KEELC 3866 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEELC 3866 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Case E007 of 2025 FO Nyagaka, J June 19, 2026 Between Ndimba Gimung'aya Motatiro (Suing as the legal representative of the Estate of Gimung'aya Motatiro) Plaintiff and Anison Nyahiri Muhindi 1st Defendant Nyahiri Karunga James 2nd Defendant Nyahiri Nyamesegere Dismas 3rd Defendant Peter Matiko Nyahiri 4th Defendant Paul Muhindi Nyahiri 5th Defendant Phanuel Matiko Nyahiri 6th Defendant Simeon Chacha Mahende 7th Defendant Florence Sigiria Monati 8th Defendant Muheria Nchagwa 9th Defendant The District Land Surveyor 10th Defendant The Land Registrar, Migori County 11th Defendant The Hon Attorney General 12th Defendant and The Trustee of the Catholic Church Diocese Of Homabay Interested Party Ruling 1.The 1st to 6th Defendants brought a Notice of Motion dated 31st day of October 2025, under certificate of urgency. It was premised on Sections 13, 18, and 19 of the Environment and Land Court Act, 2011; Order 40 Rule 1(a) and Order 51 Rule 1, 3 and 4 of the Civil Procedure Rules, 2010; Sections 1A, 1B, and 3A of the Civil Procedure Act, 2010; Articles 40 and 159 of the Constitution of Kenya, and (what they termed as) all Other Enabling Provisions of the Law. They sought the following Orders that:1....Spent; 2.….Spent; 3.That pending hearing and determination of the main suit, there be an order of temporary injunction to restrain the Plaintiff/Respondent, either by himself, or through his agents, family members, employees, and/or servants from threatening or harassing the Applicants, from destroying the Applicants’ properties or in any manner whatsoever trespassing or interfering with the Defendants/Applicants’ quiet and peaceful possession of property known as BUKIRA/BWISABOKA/11231 located in Migori County, Kuria West Constituency, Bukira East Sub-County and measuring 3.425Ha; 4.That the Orders for temporary injunction be enforced by the OCS (Officer Commanding Kehancha Police Station); 5.That the costs of this application be provided for. 6.That this court be pleased to issue such other orders as it may deems fit for the interest of justice and for purposes of protecting the interests of the Applicants in the suit property. 2.The application was based on the grounds that the suit property was ancestral land that belonged to the Applicants. They had lived on it for over 50 years. The 1st Applicant has been in actual possession and active use of the suit property since 1974 to date. In 1974, the 1st Applicant’s Land Parcel BUKIRA/BWISABOKA/828 was surveyed and demarcated. The said Applicant erected permanent commercial structures and a homestead where he and the other Applicants had been living for over 50 years. The commercial structures thereon are rented to different people who pay rent to the Applicants. 3.In 1992, the 1st Applicant was issued with a title deed for land parcel number BUKIRA/BWISABOKA/828. On 7/8/2022, the 1st Applicant proceeded to transfer land parcel number BUKIRA/BWISABOKA/828 to his heirs, who include the 2nd to 6th Applicants. In the same year, 2022, the 2nd to 6th Applicants proceeded to subdivide parcel No. BUKIRA/BWISABOKA/828 into several subdivisions of which BUKIRA/ BWISABOKA/11231, the suit property, was one. Since the year 1974, the Applicants had occupied the suit property peacefully and without any form of external interference. The interference only began in May 2023 when the Respondents started to threaten the Applicants with bodily harm and by destroying their properties, leading to the filing of Migori ELC. No. E001 of 2023. The suit was later withdrawn. In the circumstances, it is only fair and just that the interim orders sought be granted. 4.The Application was supported by the Affidavit of Anison Nyahiri Muhindi sworn on the same date as the application. He deponed that he was a resident of Bukira East Subcounty and had been duly authorized by the other Applicants to swear the Affidavit on his own behalf and that of the 2nd to 6th Defendants. He did not annex the written authority though. 5.He repeated the contents of the grounds in support of the application but in deposition form hence the court need not rehash the same, having captured them above. However, he added to the deposition that he had annexed a number of copies of documents to demonstrate the facts he deposed to. These were, “ANM-1” a copy of the Survey Map; “ANM-2” a copy of the Title Deed issued to the Applicants in March 1992; “ANM-3” Photos of the permanent houses and structures and commercial buildings erected on the Suit Property; “ANM-4” is a photo of the Catholic Church; “ANM-5” is a copy of the green card’ “ANM-6” is a copy of the Title Deed for BUKIRA/BWISABOKA/11232; “ANM-7” photos meant to show the destruction of properties valued at KShs 325,609/= on the suit land; and “ANM-8” is a copy of the OB showing that the destruction had since been reported to the police. 6.He added that in the year 2022, his heirs (sic) decided to subdivide land parcel BUKIRA/BWISABOKA/828 and issue a title deed also to one Simion Chacha Mahende, the 7th Defendant, who had purchased a portion of the said land. The parcel resulting from the subdivision was known as BUKIRA/BWISABOKA/11233. Further, the 1st applicant was apprehensive that the Respondents would continue to threaten, harass, or even attack the Applicants if not stopped by an order of this court. He would equally continue to destroy their properties if they were not stopped by the court. 7.The Respondent/ plaintiff filed grounds of opposition dated 6th November 2025 in them they stated that the application disclosed no reasonable defense in that it failed to appreciate the effect of Section 92 of the Limitation of Actions Act and the discovery of the fraud was in 2022 hence the suit could not be bad by way of limitation of action hence the application was an abuse of its process of the court. 8.He also filed a Replying Affidavit sworn on 14th November 2025. In it he deponed that the application was frivolous, scandalous, vexatious and an abuse of the court process. His father, one Gimungaya Motatiro, now deceased was the registered proprietor of the land designated as BUKIRA/BWISABOKA/229 containing by measurement 50 acres. Following the father’s demise, and with intention to succeed his Estate, he approached the lands registry to procure a search in respect of the suit parcel and to his utter shock, he discovered that the suit land was non-existent having undergone several subdivisions. The suit parcel had been subdivided into two being BUKIRA/BWISABOKA/1827 and 828 registered in the names of my late father and the 1st Applicant herein respectively. The suit land being BUKIRA/BWISABOKA/828 registered in the names of the 1st Applicant was further subdivided, culminating in two other titles being BUKIRA/BWISABOKA/11231 and 11232 registered in the names of the Catholic Diocese of Homabay and the names of Nyahiri Karunga James, Nyahiri Nyamasegere Dismas, Peter Matiko Nyahiri and Paul Muhindi Nyahiri. 9.He added that despite the applicants having a certificate of title they had never occupied the suit land and or at all. The deponent’s family and him had been in occupation and use of the suit property since 1970's unawares of the subdivisions on the Original Land Parcel No. BUKIRA/BWISABOKA/229, including BUKIRA/BWISABOKA/11231 the subject of the instant application. The applicants’ assertion that they were in occupation of the suit land was not true and a mere evidence of a certificate of title in their name did not in any way show that they occupied the land. 10.Further, the photographs annexed to the application could not be ascertained with precision on what parcel they were taken from and as such the court could not assume that they were taken from the suit property without evidence to that effect. Mere copies of photographs of houses allegedly erected on the parcel of land whose existence was denied did not justify the grant of an order of injunction. In any event, there was no certificate of electronic evidence in respect of the photos as required by law. 11.He deposed further that neither he or any member of the family had ever threatened the applicants or any member of family. Further, there was no justification as to why the police could have neglected the complaint allegedly raised by the applicant if indeed the Respondent had threatened to inflict actual bodily harm and or kill the applicants. The said complaint though made to the police was malicious and with no iota of evidence. That was why the police never acted on it. If there was imminent danger and or real, the police could have preferred charges against the respondent. 12.Further, the law requires that for an injunction to be granted an applicant must show that their application had high chances of success, the applicant will suffer irreparable harm in the event the injunction was not granted, and lastly, the balance of convenience tilts in his favour. The applicants’ statement of defence did not in any way explain how he come to subdivide parcel No. 229 hence it was not sustainable and the Defendant’s claim had no chances of success. 13.The Respondent and his family had been in occupation of the suit land and the Applicants had never been in occupation of the suit land. One would wonder what prejudice the Defendants risked undergoing that could not be compensated by way of damages. The prayers sought were only intended to have him evicted and harassed before the suit would be heard and finalized. The Applicant had come to court with unclean hands, having an intention to have him evicted from the suit land through the back door. 14.The balance of convenience tilts in his favour. The application was without merit, brought in bad faith, and should be dismissed with costs. He prayed that orders of status quo of the parcel do remain pending hearing and determination of the suit. 15.The application proceeded by way of written submissions. The Applicants’ SubmissionsPARCONCLUSIONS RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 19TH OF JUNE 2026.HON. DR. IUR NYAGAKAJUDGEIn the presence of,Mr. Maroa Advocate for the applicantsMs. Oyala Advocate for the RespondentNo appearance for the 11th and 12th Respondents