https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4817

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI COMMERCIAL COURTS NAIROBI** **ELCLOS/ E039/2025** **SAMSON OLE NKAATET…………………………………..APPLICANT** **-VERSUS-** **MACHAKOS RANCHING COMPANY** **LIMITED…………………………………………….…...1ST RESPONDENT** **MUTINDA MULINGE…………………………………..2ND RESPONDENT** **RULING** 1. The Applicant filed the Notice of Motion dated 3rd July 2025 under Sections 3, 3A and 63(e) of the Civil Procedure Act, Order I Rule 10, Order LI Rule 1 of the Civil Procedure Rules seeking the following orders; 2. **Spent** 3. **Spent** 4. **Pending the hearing and determination of this suit, the Defendants/Respondents, their servants and/or agents or otherwise howsoever be restrained from interfering howsoever with the Defendant/Applicant's quiet enjoyment, use possession and occupation of the suit property or alienating, transferring, disposing and or dealing with the suit property in any manner whatsoever.** 5. **An order of permanent injunction be issued against the Defendants either by themselves, employees, agents servants and or assigns or any person claiming through them from evicting the Plaintiff from all that Land known as L.R. No. 1055/72, Nairobi (suit property) or from interfering with the Plaintiff's possession of the same or alienating, transferring, disposing and or dealing with the suit property in any manner whatsoever.** 6. **That the O.C.S. Karen Police Station be directed to assist and ensure compliance by the Defendants/ Respondents.** 7. **The costs of this Application be awarded to the Plaintiff/Applicant.** 8. The application is supported by the supporting and further affidavits sworn by **Samson Ole Nkaatet,** who deposes that he has occupied portions of **L.R. Nos. 1055/72 and 1055/69** in Karen continuously for over **24 years**, during which period he established his home, engaged in farming, reared sheep and raised his family on the land. He states that he occupies approximately **1½ acres on L.R. No. 1055/72,** while another family occupies another portion, and has also used part of **L.R. No. 1055/69** for farming and grazing. 9. The Applicant avers that he understood the land belonged to the Mulinge family and that the 2nd Defendant occasionally visited the property. In **April 2025**, the 2nd Defendant informed him that the family required him to vacate part of the land to facilitate the hotel's expansion and offered compensation. Although they initially agreed on **KShs. 5,000,000**, the offer was later reduced to **KShs. 1,500,000.** The Applicant signed an agreement dated **11th April 2025** and vacated the lower portion of the land by removing his crops, believing he was surrendering occupation of **L.R. No. 1055/69**. 10. He contends that he subsequently discovered that the agreement referred to **L.R. No. 1055/72** instead of **L.R. No. 1055/69**, and therefore alleges that the agreement was procured through **fraud, deceit and misrepresentation**. 11. The Applicant further states that on **1st July 2025, Ruth Saoyo**, who identified herself as an employee of the 1st Defendant, visited his home and demanded that he vacate the property by **7th July 2025**. On the same day, **Mumo Mwangangi** informed him that he had been instructed to replace the property's gate with a metallic one. The Applicant interprets these actions as evidence of an imminent forcible eviction. 12. He deposes that he is a widower living on the property with his school-going children, that the suit property is their only home, and that he has no alternative residence. He fears that unless restrained, the Defendants will unlawfully evict him, causing irreparable harm that cannot adequately be compensated by damages. 13. In his further affidavit, the Applicant disputes the Respondents' allegation that he was merely a caretaker, asserting that they have produced no evidence of any employment relationship. He argues that both the agreement and the Respondents' own documents describe him as an **occupier** and acknowledge that they were seeking **vacant possession**, thereby recognizing his occupation of the property. He also notes that the compensation paid was expressly described as **ex gratia**, and that the agreement did not state it was intended to facilitate his relocation. Finally, he maintains that the Respondents have failed to explain the "further claims against the title holders" referred to in the agreement and reiterates that the agreement was obtained through fraud, deceit and misrepresentation. On that basis, he urges the court to grant the injunctive relief sought pending determination of his substantive claim **Replying Affidavit** 1. The Respondents oppose the Notice of Motion through a replying affidavit sworn by Patrick Mutinda Mulinge. They contend that the application is incompetent, an abuse of the court process, and should be dismissed. They further argue that the Applicant is not entitled to equitable relief because he has failed to approach the court with clean hands. 2. The Respondents deny that the Applicant has occupied the suit property as an adverse possessor. They maintain that he was merely employed by Machakos Ranching Limited as a caretaker and was permitted to keep sheep on the property in that capacity. They state that the Applicant acknowledged this relationship by signing the agreement dated 10th April 2025, and therefore cannot now claim to have entered and occupied the property as of right. They also dispute his assertion that he has occupied the property since 2001, describing it as false, and challenge him to produce evidence of such occupation. 3. The Respondents further deny that the Applicant carried out any developments on the property, asserting that the house in which he resides and the perimeter wall were constructed by them without objection from the Applicant. 4. While admitting that discussions took place regarding the Applicant's departure from the property, the Respondents maintain that the entire agreement between the parties is contained in the written agreement dated 10th April 2025, which expressly excludes reliance on any prior or collateral arrangements. They deny ever agreeing to pay the Applicant KShs. 5,000,000, stating that this allegation is unsupported and contrary to the written agreement. 5. According to the Respondents, the agreement clearly provided for an ex gratia payment of KShs. 1,500,000, which the Applicant voluntarily accepted. They contend that the payment was made purely on humanitarian grounds to assist him to relocate and that, having accepted both the payment and the terms of the agreement, the Applicant is estopped from asserting a contrary position. They emphasize that the Applicant does not allege that he was coerced into signing the agreement. 6. The Respondents further argue that the Applicant's claim that he was deceived regarding the identity of the property is unfounded, maintaining that the agreement expressly relates to **L.R. No. 1055/72** and that any reference to **L.R. No. 1055/69** is misplaced. They also deny that the Applicant has produced any evidence demonstrating acquisition or occupation of the suit property for the period alleged. 7. Finally, the Respondents deny that they are unlawfully interfering with the Applicant's possession, asserting that any requirement for him to vacate merely seeks to enforce the agreement voluntarily entered into by the parties. They contend that the sum of KShs. 1,500,000 was sufficient to enable the Applicant to relocate and acquire alternative land, and characterize his continued claim to one and a half acres of the suit property after accepting the payment as being motivated by greed and an unwarranted sense of entitlement. **Applicants Submissions** 1. The Applicant submits that he has met the threshold for the grant of an interlocutory injunction under ***Giella v Cassman Brown & Co. Ltd* [1973] EA 358** and ***Nguruman Limited v Jan Bonde Nielsen & 2 Others* [2014] eKLR**. He contends that he has occupied the suit property openly, continuously and exclusively for over 24 years and has therefore established a prima facie case for adverse possession under Sections 7 and 38 of the Limitation of Actions Act, relying on ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others* [2003] KLR** and ***Kweyu v Omuto* [1990] KLR 709**. 2. The Applicant further argues that eviction would occasion irreparable harm through the loss of his home, livelihood and family residence, which cannot be adequately compensated by damages. In this regard, he relies on ***Nguruman Limited v Jan Bonde Nielsen & 2 Others* [2014] eKLR**, **Article 43(1)(b) of the Constitution**, and ***Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others* [2016] eKLR**. He therefore submits that the balance of convenience favours preserving the status quo by maintaining his possession of the suit property pending the determination of the suit. Top of Form Bottom of Form **Respondents submissions** 1. Counsel for the Respondent submits that the Applicant's claim for adverse possession is unsustainable because his occupation of the suit property was with the Respondent's permission as a caretaker and was therefore neither hostile nor adverse. Relying on ***Virginia Wanjiku Mwangi v David Mwangi Kamau* [2013] eKLR**, ***Richard Wefwafwa v Ben Munyifwa* [2020] eKLR**, ***Mohan Lal v Mirza Abdul Gaffar***, ***Alfred Welimo v Mulaa Sumba Barasa***, and ***Wambugu v Njuguna* [1983] KLR 172**, the Respondent argues that possession which begins with the owner's consent cannot mature into adverse possession unless the permission is terminated and the occupation thereafter becomes hostile, exclusive and continuous for the statutory period. 2. The Respondent further contends that the Applicant has failed to prove uninterrupted possession for twelve years, noting that he admits relocating from the portion he previously occupied after executing the agreement. Reliance is placed on ***Joseph Gachumi Kiritu v Lawrence Munyambu Kabura* [1996] eKLR** for the principle that continuous and uninterrupted possession must be strictly proved. 3. Finally, the Respondent submits that the Applicant voluntarily executed the agreement dated 10 April 2025, accepted the agreed honorarium of Kshs. 1,500,000, and only later alleged that the agreed amount was Kshs. 5,000,000 despite the agreement's entire agreement clause. It is argued that the allegations of fraud are unsupported, the suit was filed in bad faith as an attempt to obtain additional compensation, and the claim for adverse possession is an abuse of the court process that should be dismissed with costs.Top of Form Bottom of Form **Analysis and Determination** 1. The Court has considered the pleadings, the application herein, affidavits and submissions by Counsel for the parties and determined that the primary issue for determination is whether the Applicant is entitled to the order of interlocutory injunction sought. 2. The Court’s view is that **the application for an interlocutory injunction ought to be declined,** principally because the Applicant has not demonstrated a **prima facie case with a probability of success,** which is the first and indispensable requirement under the principles in **Giella v Cassman Brown & Co. Ltd and Nguruman Limited v Jan Bonde Nielsen & 2 Others**, and order 40 Rule 1&2 Civil Procedure Rules. 3. The Applicant's substantive claim is one for adverse possession. At the interlocutory stage, the Court is not required to determine the merits of that claim conclusively. However, the Applicant must place before the Court evidence demonstrating an apparently enforceable right that has been infringed. 4. In this case, there are substantial factual disputes which go to the very foundation of the claim. While the Applicant asserts that he has occupied the suit property openly, exclusively and uninterruptedly for over twenty-four years, the Respondents contend that his occupation arose solely by virtue of his employment as a caretaker of the property. If indeed the Applicant entered the property as an employee or caretaker with the permission of the registered owners, such occupation would be permissive rather than adverse and time for purposes of adverse possession would not ordinarily run until that permission was unequivocally withdrawn. This argument is strongly advanced by the Respondent that the Applicant's occupation of the suit property was **permissive rather than adverse.** The Respondent relies on the cases of **Wambugu v Njuguna [1983] KLR 172**, **Kweyu v Omuto [1990] KLR 709**, and **Richard Wefwafwa v Ben Munyifwa [2020] eKLR**, which recognize that possession which begins with the owner's consent cannot found a claim for adverse possession unless it is shown that the permission came to an end and the claimant thereafter remained in open, exclusive and hostile possession for the statutory period. 5. In the Court’s view the question of whether the Applicant was a caretaker, the duration of such employment, and whether his occupation subsequently became adverse are issues requiring oral evidence and cross-examination and cannot be resolved on affidavit evidence alone. 6. On the face of the documents supplied by the Applicant and in particular the agreement dated 10th April 2025 between himself and the Defendants, the property subject matter of the agreement is described asL.R. No. 1055/72, the suit property herein. The Applicant is described as a caretaker of the suit property and the duration of the Applicant’s occupation of the land subject matter of the agreement is described as “a few years”. 7. Further, it is not disputed that the Applicant executed the agreement dated 10th April 2025 under which he accepted **KShs. 1,500,000** and agreed to vacate the property. Although the Applicant alleges that the agreement was procured through fraud, deceit and misrepresentation because he believed he was vacating a different parcel of land, fraud is a serious allegation which must not only be specifically pleaded but ultimately proved by cogent evidence. This position is supported by the case of **Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR.** In that case, the Court of Appeal (Tunoi JA) held: **"It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts."** 1. At this interlocutory stage, no sufficient material has been placed before the Court to demonstrate, even on a prima facie basis, that the agreement is invalid. On the contrary, the existence of the executed agreement considerably weakens the Applicant's assertion that his occupation remained adverse and uninterrupted. 2. The Applicant also relies on long occupation and developments on the land. However, the Respondents dispute virtually every material assertion, including the duration of occupation, the alleged developments, and the capacity in which the Applicant occupied the property. They maintain that the house and perimeter wall were constructed by them and that the Applicant merely resided there as a caretaker. These competing factual narratives underscore that the issues can only be resolved at trial. 3. Although the Applicant has demonstrated that eviction would occasion hardship to him and his family, including displacement from what he considers his home, The Court of Appeal in **Nguruman Limited v Jan Bonde Nielsen & 2 others s**tated as follows: ***"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.*** ***These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”*** 1. Even if the Court were to consider those two limbs, the existence of the relocation agreement and the admitted receipt of **KShs. 1,500,000** would complicate the Applicant's assertion that the threatened eviction is entirely unlawful. Equally, the Respondents, as registered proprietors, assert contractual rights arising from the agreement. The balance of convenience would therefore not clearly favour the Applicant. 2. Accordingly, the Court is of the considered view that the Applicant has not discharged the burden of establishing a prima facie case with a probability of success. The issues concerning the nature of his occupation, the effect of the agreement dated 10th April 2025, the allegations of fraud and the viability of the claim for adverse possession are substantive matters that should be determined at the full hearing upon viva voce evidence. 3. **In the result, the Court finds that the Notice of Motion dated 3rd July 2025 lacks merit and is dismissed with costs to the Respondents.** **Delivered, dated and signed via Microsoft Teams this 9th day of July 2026.** **HON. L. G. KIMANI** **JUDGE ENVIRONMENT AND LAND COURT** ***The Ruling read in the presence of-*** *Kithure holding brief for Kinyanjui for the Applicant.* *Osiemo for the Respondents****.***