https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4354

Lengirikai & 199 others v Mathira-Kihundui-Kahonoki-GataarageFarmers’ Association & 3 others (Enviromental and Land Originating Summons E001 of 2026) [2026] KEELC 4354 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEELC 4354 (KLR) Republic of Kenya In the Environment and Land Court at Nyahururu Enviromental and Land Originating Summons E001 of 2026 LN Mbugua, J July 8, 2026 Between Peter Lengirikai & 199 others Plaintiff and Mathira-Kihundui-Kahonoki-GataarageFarmers’ Association 1st Defendant Dominic Munyiri Alias Lokonyi 2nd Defendant Seasons Orchard Limited 3rd Defendant Mohammed Yussuf Alias Sharmake 4th Defendant Ruling 1.The plaintiffs filed this suit by way of originating summons dated 4.2.2026 claiming inter-alia that they are entitled to be registered as the indefeasible owners of all that property known as Mutara Thome Block 1/(mathira) Parcels Of Land Contained In Registered Index Map (rim) Sheet (1–4) registered in the name of members of the 1st defendants by virtue of adverse possession in terms of Sections 7, 13, 37 and 38 of the Limitation of Actions Act, Cap 22, Laws of Kenya, on account of their continued and uninterrupted possession, occupation and use of the suit property for a period exceeding thirty eight (38) years from 1988 to date. 2.The suit was filed contemporaneously with an application of even dated where the plaintiffs seek the following orders;1.That pending the hearing and determination of this application inter-parties a temporary injunction do issue against the defendants/respondents restraining them and/or their agents, servants, proxies, employees from occupying, developing, meddling with the suit property known as Mutara Thome Block 1/1-4815 (mathira) Parcels Of Land Contained In Registered Index Map (rim) Sheet (1 – 4).2.That pending the hearing of the suit this Honourable court be pleased to grant an injunction restraining the defendants/respondents and/or their agents, servants, proxies, employees from occupying, developing, meddling, interfering and/or accessing the plaintiff’s land known as Mutara Thome Block 1/1-4815 (mathira) Parcels Of Land Contained In Registered Index Map (rim) Sheet (1 – 4).3.That this Honourable court to order the immediate removal of a contingent of police officers, Rapid Deployment Unit (RDU) officers, illegally stationed or patrolling the suit property intimidating, harassing and or distressing the applicants and their children herein unconditionally..4.That the OCS Rumuruti Police Station to enforce this order.5.That the costs of this application and the entire suit be borne by the defendants/respondents herein.”6.That 3.The grounds in support of the application are that the plaintiffs are the rightful owners of the suit property, of which the respondents intend to forcefully take over the suit parcel and have started putting up a fence. 4.In opposition thereof, the 1st and 2nd defendants filed a notice of preliminary objection dated 24.2.2026 where it is argued that;1.The entire suit is incompetent, bad in law and an abuse of court process.2.The suit offends provisions of Section 38 of Limitation of Actions Act (Cap 22 L.O.K.) and Orders 37 Rule 7 of Civil Procedure Rules 2010.3.That the suit discloses no reasonable cause of action, is scandalous, frivolous and vexatious.4.That the suit and application seeks reliefs and orders which may affect persons who are not parties to this suit.”5.These defendants have also filed a replying affidavit dated 24.2.2026 sworn by the 2nd defendant where they argue that the 1st defendant is a society which was formed way back in year 1972 with about 4 998 farmers with the objective of contributing funds to enable members to buy a parcel of land measuring about 23,000 acres within Rumuruti area in Laikipia County from a white settler who was relocating from this country to Britain.6.That the members of the 1st defendant purchased the parcel which was then surveyed and individual titles were issued. That having achieved its objective, the said cooperative society was wound up around 1986 and members assumed ownership of their properties with majority of them taking possession and developing their respective properties thus the 1st defendant does not own any land.7.It is further argued that a substantial number of the members of the 1st defendant are in occupation of their respective parcels, while others are deceased.8.The Originating Summons was amended to bring on board the 3rd and 4th defendants who oppose the application vide the replying affidavit of the 4th defendant dated 28.4.2026. They argue that the plaintiffs have not demonstrated the registration status of the suit parcel, thus their prayers are fatal. They aver that they own and have fenced about 2000 acres of land in the area known as Mathira and have been in exclusive possession of the same, of which on 2nd and 3rd March 2026, some of the plaintiffs maliciously damaged part of the perimeter fence of their land, prompting them to make a report at Rumuruti police station. The defendants term the actions of the plaintiffs as a dishonest scheme geared towards evading justice on the issue of destruction of property.9.I have considered the rival arguments in this matter. The issue falling for determination is whether this suit is incompetent on grounds set out in the Preliminary Objection, if the answer is in the affirmative, there would be no need to interrogate the merits of the application, if not, the court will go ahead to determine the application. The Preliminary Objection dated 24.2.2026 10.The fundamental nature of a preliminary objection was given in Mukhisa Bisquits manufacturing Co. Ltd Vs. West End Distributors (1969) E. A 696 as follows;“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication of pleadings and which if argued as a preliminary point may dispose of the suit.” 11.A scrutiny of the grounds raised in the Preliminary Objection reveals that the court would need to interrogate the evidence including documentary evidence so as to make a determination as to whether the suit meets the threshold of a claim of adverse possession. In that regard, I find that the Preliminary Objection does not raise a pure point of law, thus the same is found to be unmerited. The Application dated 4.2.2026 12.. The principles underpinning the grant of temporary injunctions are now settled. The same are found in the celebrated case of Giella vs Cassman Brown (1973) EA 358 where it was stated thus:“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 13.The Court of Appeal in Nguruman Limited V Jan Bonde Nielsen & 2 Ors [2014] eKLR expounded on this principle stating;“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to:-(a)Establish his case only at a prima facie level,(b)Demonstrate irreparable injury if a temporary injunction is not granted, and(c)Ally any doubts as to (b) by showing that the balance of convenience is in his favour”. 14.Have the plaintiffs established a prima-facie case?. From the material so far presented before this court, it is apparent that the question of ownership is at play. The plaintiffs have pleaded that the 1st defendant owns parcel Mutara Thome Block 1/1-4815 Mathira. However and as rightly argued by the defendants, the plaintiffs have not availed any title document to buttress their claim on ownership. 15.. As it were, the 1st defendant argues that the suit land was surveyed where individual title deeds were registered to its members as Mutara Thome Block 1/1 to 4998. Such titles have not been exhibited before this court. 16.The coming on board of the 3rd and 4th defendants has made the issue of ownership even more complex, for they claim to own 2000 acres out of parcel 4815 of which thy have availed some of their titles before this court. Thus the issue of ownership is a contested factual point requiring parties to adduce evidence in support of their claim. 17.In a similar manner, the question of occupation is again contested where the plaintiffs are claiming to be in occupation of the land, but have not given specifications of the nature and extent of the occupation. I have considered that the land in question appears to be rather expansive, about 23000 acres. Plaintiffs are in their hundreds. The question begging for an answer is – How have the plaintiffs occupied this big land? As for the 1st defendant, it contends that most of its members are in occupation of their respective parcels. While the 3rd and 4th defendants claim to be in occupation of 2000 acres. 18.In the case of Cyanamid Co. vs Ethicon Ltd (1975) 1 ALL ER 504; (1975) A.C 396 HL cited in Tritex Industries Limited & 3 others vs National Housing Corporation & another (2014) eKLR, it was held that;“It is no part of the court’s function at this state of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend, nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial”. 19.This is a situation where the court cannot even grant orders of maintenance of status quo in view of the fact that the registration as well as the ground status of “the land” in question are not yet known. In the circumstances, I find no merits in the application dated 4.2.2026. 20.The end result is that both the Application dated 4.2.2026 and the Preliminary Objection dated 24.2.2026 are hereby dismissed. The costs thereof shall abide the outcome of the suit. DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 8TH DAY OF JULY 2026 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Nancy Mwangi – C/ATimothy Lorpei for plaintiffJ. M. Mwangi for defendant