https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3369

Ngung’u v Kariuki & 2 others (Enviromental and Land Originating Summons E001 of 2026) [2026] KEELC 3369 (KLR) (Environment and Land) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3369 (KLR) Republic of Kenya In the Environment and Land Court at Naivasha Environment and Land Enviromental and Land Originating Summons E001 of 2026 MC Oundo, J June 4, 2026 IN THE MATTER OF SECTIONS 7, 13 AND 38 OF THE LIMITATION OF ACTIONS ACT, CAP 22 LAWS OF KENYA AND IN THE MATTER OF ORDER 37 RULE 7 OF THE CIVIL PROCEDURE RULES 2010 AND IN THE MATTER OF A CLAIM FOR TITLE TO LAND BY ADVERSE POSSESSION OVER LR. NO. NAIVASHA/MWICHIRINGIRI/BLOCK 4/1977 Between Joseph Muguro Ngung’u Plaintiff and Margaret Wambui Kariuki 1st Defendant David Ngigi Kariuki 2nd Defendant Land Registrar 3rd Defendant Ruling 1.Contemporaneously with an Originating Summons, where the Plaintiff sought adverse possession of land parcel No. LR No. Naivasha/Mwichiringiri/Block 4/1977, the Plaintiff, vide his Notice of Motion dated the 12th January 2026, brought under the provisions of Sections 1A and 1B of the Civil Procedure Act, Order 40 Rule 1 of the Civil Procedure Rules and all enabling provisions of the law, sought the following orders:i.Spent.ii.Spentiii.That pending the hearing and determination of the suit, the Honourable Court be pleased to issue an order restraining the 1st and 2nd Defendants, whether by themselves, agents, servants and/or employees or any other person, from interfering with the Plaintiff’s quiet possession of the suit properties known as LR No. Naivasha/Mwichiringiri/Block 4/1977 in any way, whether by eviction, trespass, cultivating, harvesting, transferring to third parties or interference with the Plaintiff/Applicant’s quiet and uninterrupted possession of the suit properties.iv.That the Naivasha Police Station provide security, ensure enforcement and compliance with the orders.v.That the Honourable Court be pleased to issue any other orders it deems necessary and fit to issue.vi.That costs of the application be in cause. 2.The said Notice of Motion was premised on the grounds set out therein, as well as on the Supporting Affidavit of equal date, sworn by Joseph Muguro Ndung’u, the Plaintiff herein, who deposed that when the 2nd Defendant sold to him LR No. Naivasha/Mwichiringiri/Block 4/1978, he came to know of the adjacent land No. LR No. Naivasha/Mwichiringiri/Block 4/1977, which was at the time subject to succession, where the 1st Defendant was to be the beneficial owner. That he had proceeded to take possession of both parcels of land, being LR No. Naivasha/Mwichiringiri/Block 4/1977 and LR No. Naivasha/Mwichiringiri/Block 4/1978. 3.That upon the conclusion of the said succession, vide a Certificate of Confirmation Grant dated 13th May 2009 in Nairobi Succession Cause No. 1696 of 2008 in the Estate of the Late Kariuki Macharia, the 1st Defendant was confirmed as the beneficiary of LR No. Naivasha/Mwichiringiri/Block 4/1977. 4.He contended that after he took possession of LR No. Naivasha/Mwichiringiri/Block 4/1977 (the suit property herein) in or about the year 2009, he has since been in open, peaceful, continuous, exclusive and uninterrupted possession and occupation thereof, exercising full rights of ownership to the exclusion of the 1st and 2nd Defendants. 5.That during the entire period of occupation, he has undertaken extensive developments and improvements on the suit property, including but not limited to:i.Regular tilling and cultivation of land;ii.Planting and harvesting crops such as Rhodesian hay, maize, potatoes and onions on alternating seasons;iii.Planting indigenous and exotic trees between the years 2009 and 2011.iv.Planting grass and Kei apple (Kayaba) hedge along the boundary fence between the year 2009 and 2011;v.Leasing the suit property to one Mr John Mugo for 5 years for agricultural purposes vide a Lease Agreement dated 5th November 2018, signed by both parties; andvi.Erecting and maintaining a fence around the suit properties for purposes of security and demarcation, thereby asserting exclusive control and possession. 6.That accordingly, for a continuous period of 17 years between the year 2009 and 2026, the 1st and 2nd Defendants had never occupied the suit property nor taken any step whatsoever to assert ownership, recover possession or interrupt their occupation, thereby allowing time to run against them under the Limitation of Actions Act. 7.That in or about September 2025, long after his right by adverse possession had crystalized, the 1st and 2nd Defendants acting jointly and/or through their agents, had illegally trespassed onto the suit properties without his knowledge, consent or authority during which they used a tractor to harvest and remove Rhodesian hay that he had planted and cultivated with the intention of clearing the land in preparation for its alienation and/or disposal to third parties thus interfering with his quiet possession and proprietary interests and causing him tremendous loss of the Rhodesian hay valued at Kshs. 1,701, 905/=. That he had reported the said incident at Mwichiringiri Police Post on 5th September 2025 vide OB Number 04/05/09/2025. 8.He emphasized that the said unlawful and malicious acts of trespass had occurred after the lapse of the statutory limitation period, thus the same could not defeat or extinguish the rights accrued to him over the suit property by adverse possession. 9.In response and opposition to the Plaintiff’s Notice of Motion Application herein, the 1st Defendant, through her Replying Affidavit dated 23rd January 2026, deposed that LR No. Naivasha/Mwichiringiri/Block 4/1977 (the suit property herein) was registered in the name of her late husband, Kariuki Macharia Kanja (Deceased). That upon the demise of her said husband, she filed Succession Cause No. 1698 of 2008 in the High Court, Nairobi, which succession cause was concluded on 31st March 2009 and ratified on 2nd February 2013, wherein she was allocated the suit property. She explained that her husband had also bought LR No. Naivasha/Mwichiringiri/Block 4/1978, in the name of his son, DNK, the 2nd Defendant herein, was then a minor. 10.She was cultivating the two adjacent parcels of land, and at the time there were potatoes, beans and maize on them. She thus contended that the Applicant had not been in continuous possession of the two parcels of land for the past 19 years. She refuted her son, the 2nd Defendant, who was neither the administrator nor the beneficiary of parcel LR No. Naivasha/Mwichiringiri/Block 4/1977, having sold LR No. Naivasha/Mwichiringiri/Block 4/1978 to the Plaintiff, because he had no capacity to sell the same. 11.She also denied that it was not true that the Applicant had ploughed the land and planted pasture, as this would amount to intermeddling with the deceased’s property, since the title was still in the deceased’s name at the time. She refuted that the land had never been used by the Applicant and that the trees therein had been planted by her late husband. She also denied that she had transferred the suit property, as she had been transferring it bit by bit because the deceased’s estate was large. 12.That it was not true that the Applicant had been using the suit land with their knowledge, as alleged, for two reasons. First, the land had not been transferred to her, and second, she resides in Kiambu, so she could not have allowed the Plaintiff to interfere with the deceased’s property. She thus argued that the case, as drawn and filed, is a non-starter, as the land had never been transferred to her, and she had been improperly sued. 13.That whereas the Applicant had been their tenant at their building known as Diplomat House, Naivasha, there was no sale agreement for the sale of any parcel of land between them. She argued that it was after the Plaintiff had moved the court and obtained orders herein that it rushed to try and develop land parcel No. LR No. Naivasha/Mwichiringiri/Block 4/1978. 14.That she had never been summoned by the police on any issue for which the Plaintiff had reported her. The title deed to the said land was registered in her late husband's name, and the current status quo was that she was in occupation of the land, as the crops therein were hers. She thus urged the Court to dismiss the Plaintiff’s Application for being unmeritorious. 15.The 2nd Defendant, on the other hand, filed a Notice of Preliminary Objection and a Replying Affidavit, both dated 23rd January 2026, in opposition to the Plaintiff’s Application herein. 16.In his Notice of Preliminary Objection, the 2nd Defendant objected to the Plaintiff’s Originating Summons and Notice of Motion, both dated 12th January 2026, on the following grounds:i.That the Application is unlawful and unconstitutional in light of Article 40 of the Constitution of Kenya 2010 and is an abuse of the Court Process and is therefore bad in law, null and void, an advancement of illegality and should be dismissed.ii.That the absolute registered owner of the subject land Naivasha/Mwichiringiri/Block 4/1977 is one Kariuki Macharia Kanja (Deceased), and the originating summons is incompetent in light of the provisions of the Land Registration Act 2013, Section 25 (1), 26, 27 and 28.iii.That the originating summons is statutorily barred and discloses no tangible cause of action since the land had not even been transmitted to the 1st Defendant per Section 61 of the Land Registration Act.iv.Any other reason to be stated.He thus prayed for the striking out of the Plaintiff’s suit with costs. 17.In his Reply Affidavit, the 2nd Defendant argued that the instant Application was made in bad faith, by falsehood and fraud, and was an act intended to self-enrich the Applicant/Plaintiff, hence it is bad in law, and the entire Application should be dismissed. The Plaintiff was known to him because he was a tenant at Diplomat House, Naivasha, which was his late father’s estate, where he was engaged in land-related business, which gave him an opportunity to interact with him on tenant matters. That the suit land herein is owned and registered in the name of his deceased father, one Kariuki Macharia Kanja, and that the family has used, cultivated and developed it. The Plaintiff/Applicant has never been on the land or grown anything thereon; his allegations are calculated to grab land of which he has no single nexus, and his application should fail. 18.That the Plaintiff was unlawfully claiming the lands of the estate of his deceased father, Kariuki Macharia Kanja, without first engaging in the succession cause. Contrary to the Plaintiff’s Application, he had never sold land parcel No. Naivasha/Mwichiringiri/Block 4/1977, which was subject to a succession cause, and/or Naivasha/Mwichiringiri/Block 4/1978, which he is the registered owner of, and therefore the Plaintiff’s allegations were fraudulent and unlawful. 19.He maintained that the Plaintiff had never occupied, owned, cultivated, used or utilised the parcels of land herein, as the same belongs to the estate of Kariuki Macharia Kanja. He contended that the Plaintiff is an opportunistic person who was a tenant of the estate of Kariuki Macharia Kanja, who had disappeared with rent arrears for the years 2018 to 2024 and storage fees totalling Kshs. 750,000/= inclusive of storage charges for the year. 20.That whereas the Plaintiff had never resided in the parcels of land herein, he had been trying to enter, trespass and occupy the lands in issue, acts that had been repulsed and resisted by the family of the late Kariuki Macharia Kanja and the 1st and 2nd Defendants. He thus sought dismissal of the Originating Summons and that the Plaintiff be put to cross-examination of all his allegations through viva voce evidence upon providing all documents of alleged ownership. 21.In rejoinder, the Plaintiff, through his Replying Affidavit dated 2nd February 2026, deponed that the Court has jurisdiction to hear the instant matter since, pursuant to the provisions of Article 40 of the Constitution, he was allowed to own property of any description and in any part of Kenya. He maintained that, notwithstanding the fact that Land Parcel No. Naivasha/Mwichiringiri/Block 4/1977 was still registered in the name of the 1st Defendant’s late husband, the instant suit was still merited and that the 1st and 2nd Defendants had been properly sued, the 1st Defendant being a beneficial owner of the same vide a Certificate of Confirmation of Grant dated 13th May 2009. 22.He reiterated that he had been in an actual, open, continuous, exclusive, peaceful and uninterrupted possession of the suit property since the year 2009. 23.Further, the 2nd Defendant had been sued because he had knowledge of Land Parcel No. Naivasha/Mwichiringiri/Block 4/1977 (suit property), as it is directly adjacent to Land Parcel No. Naivasha/Mwichiringiri/Block 4/1978, which he had sold to the Plaintiff. He argued that the Originating Summons herein raises very competent issues and a cause of action recognized and affirmed in law, since the adverse possession claim had been instituted in accordance with the provisions of sections 7, 13 and 38 of the Limitation of Actions Act. 24.While rebutting the 2nd Defendant’s allegations, in his Replying Affidavit dated 23rd January 2023, the Plaintiff deponed that contrary to the 2nd Defendant’s allegations, he had been in actual, open, continuous, exclusive, peaceful and uninterrupted possession of Land Parcel No. Naivasha/Mwichiringiri/Block 4/1977 from the year 2009 to date, a period of seventeen (17) years. He reiterated that his occupation of the suit property at all material times had been visible, notorious, and unequivocal, involving cultivation, fencing, leasing, planting of crops and trees, and general use consistent with ownership, to the exclusion of Defendants and all other persons. 25.He reiterated the contents of his Replying Affidavit of how he had come to know about Land Parcel No. Naivasha/Mwichiringiri/Block 4/1977 (suit property) and clarified that whereas Land Parcel No. Naivasha/Mwichiringiri/Block 4/1978 was not part of the instant suit. The 2nd Defendant had sold the same to him in the year 2009 at a purchase price of Kshs 300,000/= 26.He explained that the Title Deed annexed by the 2nd Defendant as DNK-2, is a copy whose original was one of the completion documents that the 2nd Defendant had issued him for purposes of transferring Land Parcel No. Naivasha/Mwichiringiri/Block 4/1978 to his name. He clarified that the said copy of the Title Deed had been registered on 25th August 1989, when the 2nd Defendant was a minor, while his title deed annexed as JMN-5 shows that the same is registered in his name. 27.He reiterated that since the year 2009, the 1st and 2nd Defendants had never asserted their rights over the suit properties thus allowing time to run against them under the Limitation of Actions Act but had only laid a claim over the suit property in September 2025, long after his right by adverse possession had crystallized, when they had illegally trespassed onto the suit property without his knowledge, consent or authority, and destroyed his properties thereby interfering with his peaceful occupation. 28.He contended that despite the court issuing maintenance of status quo orders vide its Order dated 15th January 2026 and upon service of the same upon the 1st and 2nd Defendants, they had, through their agents, disregarded the same by trespassing and gaining access to the suit property and ploughing it, which acts she had reported at Naivasha Police Station vide OB No. 25/17/1/2026. 29.He deposed that the allegations that his ploughing and developing of the suit land had amounted to intermeddling was false since by the time that he had taken possession in the year 2009, the grant of letters of administration had already been confirmed on 13th May 2009 wherein the 1st Defendant had formerly been named as the beneficiary of the suit property hence his possession of the suit property could not be termed as intermeddling. 30.The Notice of Motion and the Preliminary Objection herein were canvassed by way of written submissions, which I shall summarize as follows: Plaintiff/Applicant’s Submissions. 31.In his submissions dated 9th March 2026 in support of his Application dated 12thJanuary 2026 summarized the factual background of the matter before framing his issues for determination as follows:i.Whether the Plaintiff/Applicant is the person currently in possession of the suit property.ii.Whether the Plaintiff/Applicant has established a prima facie case with a probability of success.iii.Whether the Plaintiff/Applicant stands to suffer irreparable harm if the orders sought are not granted.iv.Whether the balance of convenience lies in favour of the Plaintiff/Applicant. 32.The Plaintiff argued that he was in actual physical possession of the land, rather than merely holding theoretical ownership, and stated that he would rely on 11-12 witness statements from neighbours and community members to corroborate his long-standing control and physical presence on the property. He further argued that the Defendants or their witnesses who do not live near the property, lack knowledge of its history or boundaries, and have failed to show any continuous, active interruption of his tenancy. Citing the case of Kwenyu v Omuto [1990] KLR 709, he emphasized that adverse possession must be proved through concrete evidence of occupation, not self-serving claims. He has requested the court to conduct a physical site visit to verify his possession. 33.The Plaintiff contended that he has established a prima facie case with a strong probability of success by meeting the legal threshold for adverse possession, asserting that since 2009, his occupation has been open, peaceful, continuous, exclusive, uninterrupted, and highly visible to the surrounding community, satisfying the criteria outlined in Titus Mutuku Kasuve v Mwaani Investments Ltd & 4 Others [2004] eKLR. 34.Relying on Sections 7, 13, and 38 of the Limitation of Actions Act, he argued that the registered owner's title was legally extinguished after 12 years of adverse possession. Citing the cases of Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR and Githu v Ndeete [1984] KLR 776, he submitted that once his rights crystallized after the 12-year mark, they could not be undone by the Defendants' subsequent trespasses in September 2025. 35.He proceeded to submit that he stands to suffer irreparable damage if the injunction is denied, as the Defendants had already begun destroying crops on the land. Relying on the holding in Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR, he noted that land holds a distinct, sentimental value under Kenyan law that cannot be adequately compensated by financial damages. Without court protection, he faced the total loss of his long-term agricultural investments, the destruction of mature trees and fencing improvements, and unlawful eviction from his home. 36.The Plaintiff maintained that the balance of convenience heavily favours protecting his current occupancy. Relying on the decision in Suleiman v Amboseli Resort Limited [2004] 2 KLR 589, he argued that, because the Defendants had not occupied the land for over 12 years, the existing status quo was his physical occupation. Granting the injunction was therefore the most just course of action to prevent irreversible harm while the main suit is litigated. 37.Invoking the landmark principles of Giella vs. Cassman Brown (1973) EA 358, the Plaintiff sought the court to grant the temporary injunction to restrain the 1st and 2nd Defendants from interfering with his quiet possession of LR No. Naivasha/Mwichiringiri/Block 4/1977. He also sought that costs be in cause. 1st Defendant/Respondent’s Submissions. 38.The 1st Defendant/Respondent vide her submissions dated 18th March 2026 summed up the case before arguing that the Plaintiff had failed to meet the first threshold established in the landmark Giella v. Cassman Brown case because physical possession of the land was heavily contested. 39.She maintained that she was the one currently in possession of the land and that the crops on the property belonged to her. She pointed out that the Plaintiff’s own complaints, specifically his reports to the police, were to the effect that the Defendants ploughed the land, a report that proved that he does not have exclusive, uninterrupted control of the property. 40.The 1st Defendant contended that the Plaintiff had failed to demonstrate that he would suffer any irreversible injury if the injunction were denied. She argued that the Plaintiff had not shown any unique or distinct loss that cannot be adequately quantified and fully compensated by financial damages if the final judgment eventually went in his favour. 41.She submitted that the balance of convenience could not favour the Plaintiff because his entire claim was built upon an illegal foundation. The property was still registered in the name of her deceased husband and had not yet been formally transmitted to her. She argued that the Plaintiff was relying on an alleged promise of sale by the 2nd Defendant, who has no ownership rights or legal capacity in relation to the suit property, and therefore the Plaintiff’s unauthorised entry, development, and leasing of the land constituted intermeddling with a deceased person’s property, which is a criminal offence under Section 45 of the Law of Succession Act. 42.In conclusion, her assertion was that because the Plaintiff has no legal authority to occupy the deceased's property and has failed to satisfy the structural principles for injunctive relief, his application ought to be dismissed for being entirely without merit. 2nd Defendant Submissions. 43.The 2nd Defendant, on the other hand, vide his submissions dated 18th March 2026, reiterated the contents of his Replying and Supplementary Affidavits to submit that the Plaintiff's claim lacked the fundamental legal elements required to establish adverse possession. 44.Relying on the cases of Sisto Wambugu v Kamau Njuguna (Nairobi Civil Appeal No. 10 of 1982) and Titus Mutuku Kasuve v Mwaani Investments Ltd, supra, he argued that adverse possession cannot legally arise out of fraud, deceit, or misrepresentation, nor can it exist while the true owners remain in possession. 45.He asserted that the Plaintiff has never engaged in any agricultural activities, established a physical presence, or taken possession of the suit property (Block 4/1977). Instead, the Plaintiff was fraudulently attempting to extend an unlawful land-grabbing claim from the adjacent plot (Block 4/1978) to the suit property. 46.He challenged the validity of the underlying land transaction alleged by the Plaintiff by emphasising that while the Plaintiff claims to have bought the adjacent land (Block 4/1978) from him, he had failed to produce any written sale agreement, proof of payment, or evidence of execution. Relying on the decision in the case of Willy Kimutai Kitilit v Michael Kibet (Kitale Civil Appeal No. 37 of 2013), he invoked Section 3(3) of the Law of Contract Act, which strictly requires all dispositions and contracts for the sale of land to be in writing and signed by both parties. 47.He also pointed out critical statutory omissions regarding the transfer of agricultural land, noting that because the suit property was agricultural land, the transaction was legally void under Section 6 of the Land Control Act due to the absence of a Land Control Board Consent, board minutes, or attendance records to which the Plaintiff had completely failed to respond to or rebut the specific allegations raised in his Supplementary Affidavit regarding the forgery of the Land Control Board Application Form. 48.The 2nd Defendant further submitted that he had absolutely no legal capacity to sell the suit property (Block 4/1977) because it belongs to his deceased father's estate and remains registered in the deceased's name. 49.He submitted that because heavy allegations of fraud and forgery had been raised, the matter cannot be resolved via an interlocutory application. It requires a full trial with viva voce evidence to thoroughly test the claims through cross-examination; therefore, the Application ought to be dismissed to allow the matter to proceed to a full hearing on its merits. 50.The Plaintiff/Applicant, through his Supplementary Submissions dated 17th March 2026, asked the court to ignore arguments regarding the adjacent land parcel. Citing the case of Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 Others [2014] eKLR, he submitted that it is an established principle of law that parties are strictly bound by their pleadings and that courts cannot determine issues not properly before them. 51.He contended that all arguments raised by the 2nd Defendant regarding Land Parcel No. Block 4/1978 (the adjacent plot) was extraneous and irrelevant and should be entirely disregarded by the court. He maintained that the only subject of this suit was Land Parcel No. Block 4/1977 (the suit property) and challenged the 2nd Defendant's focus on formal titles and land ownership documents. 52.He argued that the 2nd Defendant was placing too much emphasis on registered titles and succession procedures, stating that in a claim for adverse possession, formal registered ownership did not defeat an actual occupier who had met the statutory requirements. 53.Relying on the case in Mtana Lewa v Kahindi Ngala Mwagandi (supra), he reiterated that he had provided overwhelming factual proof, specifically the statements of 12 independent witnesses, to confirm his exclusive, open, and continuous possession of Block 4/1977 since 2009. That the Defendants' recent actions came far too late to change the legal reality. 54.Citing the Githu v Ndeete case supra, he argues that the statutory 12-year limitation period had fully lapsed and his legal rights to the land had already crystallised long before the Defendants attempted to interfere. That, because his rights were already locked in by law, the Defendants’ forceful entry and acts of trespass in September 2025 cannot legally disrupt or reverse his accrued rights to adverse possession. He urged the court to confine itself strictly to the suit property (Block 4/1977), and renewed his prayer for temporary injunctive orders. Determination. 55.I have considered the Plaintiffs' application, the Defendants’ response, the submissions by counsel, the authorities cited and the applicable law. I note that, whereas in both applications the parties seek to protect their respective interests over a parcel of land, LR. No. Naivasha/Mwichiringiri/Block 4/1977: their narratives and supporting evidence present a direct and irreconcilable conflict regarding who has been in exclusive, open, and continuous possession thereof. 56.The Plaintiff’s application is based on the facts having taken possession of the suit property LR No. Naivasha/Mwichiringiri/Block 4/1977 in 2009, after purchasing an adjacent parcel (Block 4/1978) from the 2nd Defendant, he had extensively developed the same by regularly tilling the land, growing and harvesting crops (maize, potatoes, onions, Rhodesian hay), planting trees and a Kei apple hedge, erecting a boundary fence, and leasing the land to a tenant for five years starting in 2018. 57.That, however, in September 2025, after his adverse possession rights had crystallized, the Defendants, in violation of a court order of status quo issued on 15th January 2026, trespassed on the suit land with a tractor, ploughed the same and harvested his Rhodesian hay valued at Kshs. 1,701,905/=, an incident he reported to the police. 58.He therefore sought a temporary injunction restraining the 1st and 2nd Defendants from evicting him, trespassing, cultivating, harvesting, or transferring the suit property pending the final determination of the case and that an order issue directing the Naivasha Police Station to provide security and enforce compliance with the court orders. 59.In response to the Plaintiff's application, the 1st Defendant filed a Replying Affidavit dated January 23, 2026, opposing the application and asking the court to dismiss it, stating that the property originally belonged to her late husband, Kariuki Macharia Kanja. Following succession proceedings, she was allocated the property, which had not been formally transferred into her name and remains registered under her deceased husband’s name. 60.She denied that the Plaintiff has ever occupied or cultivated the land, stating that the trees on the property were planted by her late husband, and she is the one currently occupying the land and growing crops such as potatoes, beans, and maize on it. 61.She also asserted that her son, the 2nd Defendant, had no legal capacity to sell any land to the Plaintiff in 2009. She argued that the suit is a nonstarter because she was improperly sued before the land was formally transferred to her, and that the Plaintiff only rushed to develop the adjacent plot after obtaining initial court orders. 62.The 2nd Defendant’s stand, on the other hand, vide his Preliminary Objection and Replying Affidavit, is that he sought to have the application and suit struck out with costs, arguing that the same were unconstitutional under Article 40 and were an abuse of the court process because the deceased was the absolute owner of the property which had not yet been transmitted to the 1st Defendant under Section 61 of the Act. 63.He characterised the Plaintiff’s suit as a fraudulent, bad-faith attempt at self-enrichment, asserting that the Plaintiff had no legal connection or nexus to the land and had never lived on, owned, or cultivated it. That the Plaintiff was merely a former tenant of the estate’s commercial building, 'Diplomat House', in Naivasha, who used this tenancy to familiarise himself with the family's matters and had even fled with a debt of Kshs. 750,000/= in rent arrears (from 2018 to 2024) and storage fees. 64.He denied ever selling the suit property LR No. Naivasha/Mwichiringiri/Block 4/1977 or the adjacent property LR No. Naivasha/Mwichiringiri/Block 4/1978, maintaining that the family had successfully repulsed the Plaintiff's recent attempts to trespass on the land. 65.I find the issues arising herein as follows:i.Whether the 2nd Defendant’s Preliminary Objection raises a pure point of law or requires factual inquiry.ii.Whether an order of interlocutory injunction should issue. 66.On the first issue for determination, a Preliminary Objection according to the decided case by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited (1969) EA. 696 was stated to be thus: -“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 67.It is evident that a Preliminary Objection consists of pure points of law, and it is also capable of bringing the matter to an end preliminarily. Such an objection must be argued on the assumption that all facts pleaded by the opposite party are correct, and it cannot be raised if any fact has to be ascertained or if what is sought requires the exercise of judicial discretion. 68.The Supreme Court in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR observed as follows:“… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.” 69.The 2nd Defendant contends that the Originating Summons is incompetent and statutorily barred because the land is registered in his deceased father's name and has not been transmitted. However, the Plaintiff's suit centres on a claim for adverse possession under the Limitation of Actions Act, in which he asserts 17 years of exclusive, open, continuous, and uninterrupted physical possession (supported by 12 witnesses). Conversely, both Defendants vehemently deny this, claiming they have always cultivated the land and that the Plaintiff is a rogue former commercial tenant who has never set foot on the property. 70.Adverse possession is entirely a question of fact and degree. The court cannot determine whether the suit is statutorily barred or whether a cause of action exists without first determining who was actually in possession since 2009. In his Notice of Preliminary Objection and supporting affidavits, the 2nd Defendant contends that the application is made in bad faith, by falsehood and fraud, and that the Plaintiff forged Land Control Board application documents. A strict principle of Kenyan law is that allegations of fraud must be strictly pleaded and proved by evidence. A charge of forgery or fraud can never be a purely legal matter; it requires the court to examine the documents, hear cross-examination, and assess the credibility of the witnesses. 71.The Defendants argue that, because the land remains in the deceased’s name, the Plaintiff is guilty of intermeddling under Section 45 of the Law of Succession Act. The Plaintiff counters that a Certificate of Confirmation of Grant was issued in May 2009, naming the 1st Defendant as a beneficiary, thereby commencing the running of time against a live beneficiary whose title has now been extinguished by the 12-year rule. To resolve these issues, the court must investigate the timeline of the succession cause, the date the grant was confirmed, and whether the 12-year statutory period lapsed before or after any alleged re-entry. This is a mixed question of fact and law. 72.Lastly, the 2nd Defendant points to the absence of a written sale agreement (violating the Law of Contract Act) and the absence of Land Control Board consent (violating the Land Control Act). While non-compliance with these acts normally voids a standard contract of sale as a matter of law, adverse possession is an equitable and statutory claim that operates independently of a valid contract. In fact, adverse possession often arises precisely because a claimant enters land under an invalid or uncompleted transaction. Determining the precise manner in which the Plaintiff entered the land requires a factual inquiry. 73.Applying the principles stated in the authorities cited above to the current dispute reveals that the 2nd Defendant’s Preliminary Objection is a disguised argument on the merits, raising substantial issues of disputed physical possession, allegations, and questions of fraud. It cannot be disposed of as a pure point of law, as it structurally collapses into a factual inquiry that cannot be resolved at this preliminary stage. The preliminary objections are hereby dismissed. 74.On the second issue for determination as to whether the Plaintiff should be granted the interlocutory injunctive orders sought, the principles to be considered by this court are well settled in the case of Giella vs. Cassman Brown [1973] EA 358, which sets out the three-pillar test that the Applicant needs to satisfy for the grant of an interlocutory injunction as follows;i.Is there a serious issue to be tried (prima facie case)?ii.Will the Applicant suffer irreparable harm if the injunction is not granted?iii.Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits? (Often called "balance of convenience"). 75.A prima facie case was described in the case of Mrao vs First American Bank of Kenya Limited & 2 Others (2003) KLR 125, as follows:“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.” 76.At this interlocutory stage, the Court is not required to determine the ultimate validity of the competing titles. As seen earlier, the court needs only to determine that, on the surface, the party seeking an injunction has a right that has been or is at risk of being violated. 77.While the Plaintiff brings forward 12 witness statements to claim 17 years of continuous, exclusive possession, the Defendants completely contradict this position on the claim that they are the ones in possession of the suit property and have planted the crops currently thereon, being potatoes, beans, and maize and that the Plaintiff has never utilized the land. 78.As pointed out by the Defendants, the Plaintiff admitted in his own affidavits and police reports that the Defendants entered the land with a tractor, ploughed it, and harvested hay. 79.There have been allegations of illegality and intermeddling on the suit land, which remains registered in the name of the deceased Kariuki Macharia Kanja. These actions constitute an offence under Section 45 of the Law of Succession Act; therefore, a court of equity cannot readily grant an injunction to protect an occupation that is fiercely alleged to be a statutory crime. Therefore, because the facts are heavily contested and fraud has been alleged, I find that a prima facie case has not been firmly established. 80.Indeed, having found that the Applicants herein have not established a Prima facie case, I need not consider the other two conditions for the grant of temporary injunction as established in the Giella –vs- cassman Brown Ltd case (supra) as the conditions are sequential such that when the first condition fails then there is no basis upon which the court can give an injunction unless the court was entertaining a doubt as to whether or not a prima facie case had been established. The Court of Appeal in the case of Kenya Commercial Finance Co. Ltd –vs- Afraha Education Society (2001) IEA 86 cited by Gitumbi, J with approval in the case of Joseph Wambua Mulusya –vs- David Kitu & Another (2014) eKLR observed as follows:-“The sequence of steps to be followed in the enquiry into whether to grant an interlocutory injunction is sequential so that the second condition can only be addressed if the first one is satisfied”. 81.I have however one observation to make, which is that since it is undisputed that the Defendants are in possession of the suit land, and further that since land is unique, and if the court does not issue an order, one party is likely to use it to the detriment of the other, I find that a status quo order would suffice to ensure that, if either party eventually wins, they receive the land in the same condition it was in when the suit began. The court’s practice directions Gazette Notice No. 3461/2025 Practice Direction No. 23(l) gives the court the leeway and discretion to make an order for status quo to be maintained until the determination of the case. To this effect, it is directed as follows;i.An order of a status quo shall be maintained, wherein neither party shall alienate, lease, or transfer land parcel LR No. Naivasha/Mwichiringiri/Block 4/1977 to third parties pending trial.ii.The costs of the application shall be in the cause.iii.Parties to comply with the provisions of Order 11 of the Civil Procedure Rules within the next 21 days for the hearing of the main suit herein.It is so ordered DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIVASHA THIS 4TH DAY OF JUNE 2026.M.C. OUNDOENVIRONMENT & LAND COURT– JUDGE