https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4352

Siambiri (Suing on his behalf and as administrator ad litem of the Estate of Juma Siambiri - Deceased) v Shitseswa (Sued as administrator 0f the Estate of Shadrack Shitseswa Mukoya - Deceased) (Enviromental and Land Originating Summons E004 of 2026) [2026] KEELC 4352 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEELC 4352 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Enviromental and Land Originating Summons E004 of 2026 A Nyukuri, J July 8, 2026 Between Gerald Mukopi Siambiri (Suing on his behalf and as administrator ad litem of The Estate Of Juma Siambiri - Deceased) Applicant and Ali Ometty Shitseswa (Sued as administrator 0f the Estate of Shadrack Shitseswa Mukoya - Deceased) Respondent Ruling Introduction 1.Before court is a Notice of Motion application dated 2nd February 2026 filed by the applicant seeking the following orders:a.Spent.b.Spent.c.That pending the hearing and determination of this suit there be an order restricting and/or inhibiting any registration, dealing with title number Butsotso/Ingotse/651.d.Spent.e.That pending the hearing and determination of this suit there be an order of temporary injunction restraining the Respondent, his agents, servants, or anybody else claiming through him from interfering with the applicant’s peaceful occupation, use, stay and access to his Eleven(11) acres of land out of Land parcel no. Butsotso/Ingotse/651.f.That there be a stay of partition of Land parcel no. Butsotso/Ingotse/651 until the applicant’s right over Eleven(11) acres thereof is determined.g.That the O.C.S Navakholo Police Station do ensure compliance of these orders.h.That the costs of this application be provided for. 2.The application is supported by the affidavit of the Applicant sworn on 2nd February 2026. The Applicant depones that he has instituted this suit on behalf of the estate of his late father, Juma Siambiri, who is said to have purchased a total of eleven (11) acres to be excised from Land Parcel No. Butsotso/Ingotse/651 from the estate of the late Shadrack Shiteswa Mukoya, the Respondent’s grandfather. According to the Applicant, the first purchase comprised seven (7) acres acquired from the late Shadrack Shiteswa in 1983/1984, while the second purchase comprised four (4) acres acquired in 2010 from Elijah Shiteswa, a son of the deceased, following the latter’s acquisition of a grant of representation and registration as proprietor of the suit property. 3.The Applicant further avers that following the two transactions, his late father took possession of the entire eleven (11) acres and remained in occupation thereof. He contends that after his father’s demise in 2017, he continued in open, continuous, exclusive and uninterrupted possession and occupation of the said eleven (11) acres to date. It is his case that, by virtue of such occupation, the estate of the late Juma Siambiri has acquired title to the said portion by way of adverse possession. He states that despite demanding that the Respondent transfers the eleven (11) acres to the estate of his late father, the Respondent has declined to do so. Further that the respondent has threatened to destroy the applicant’s property on the suit property, is in the process of removing demarcation marks from the suit property and intends to lock out his access to the same. 4.The application is opposed. The Respondent filed a Replying Affidavit sworn on 16th June 2026, in which he contends that the Applicant has failed to satisfy the legal threshold for the grant of interlocutory injunction and inhibition orders. He depones that the Applicant and his siblings had previously lodged a protest in Succession Cause No. 258 of 1994, asserting their claim as liabilities of the estate of the late Shadrack Shiteswa Mukoya. That upon hearing the protest, the court delivered judgment on 29th April 2025, dismissing their claim. The Respondent further states that the Applicant lodged a Notice of Appeal against that decision, which, according to him, remains pending before the Court of Appeal. He also challenges the authenticity and validity of the sale agreements relied upon by the Applicant and denies that the Applicant has been in occupation or use of the suit property. Consequently, he maintains that the Applicant is undeserving of the equitable reliefs sought. He further stated that the applicant’s father leased 8 acres of land at a consideration of Kshs. 320, 000/= to plant sugarcane for four consecutive harvests. 5.In response, the Applicant filed a Supplementary Affidavit asserting that the intended appeal against the judgment in the succession cause is deemed to have been withdrawn by operation of law, as no substantive appeal has been prosecuted beyond the filing of the Memorandum and Record of Appeal. He further contends that the authenticity of the sale agreements is a matter for determination at the trial and cannot, at this interlocutory stage, justify the denial of the orders sought. Regarding the alleged lease, the Applicant maintains that it related to a different parcel of land leased to Rajab Juma Siambiri, who subsequently surrendered vacant possession upon expiry of the lease, while the Applicant has remained in actual possession of the eleven (11) acres allegedly purchased by his late father. 6.The application was canvassed by way of written submissions. The Applicant filed submissions dated 3rd July 2026, while the Respondent’s submissions are dated 29th June 2026. The Court has carefully considered the application, the affidavits on record, the rival submissions and the applicable law. Analysis and determination 7.I have carefully considered the Notice of Motion, the affidavits filed in support thereof and in opposition thereto, the parties’ respective written submissions, and the authorities cited. In my view, the issues that arise for determination are:a.Whether the Applicant has satisfied the legal threshold for the grant of a temporary injunction pending the hearing and determination of the suit; andb.Whether the Applicant has established a basis for the grant of an order of inhibition against Land Parcel No. Butsotso/Ingotse/651 pending the hearing and determination of the suit. 8.Order 40 Rule 1 of the Civil Procedure Rules grants this court the jurisdiction to grant temporary injunction where it is shown that the subject matter of the suit is at risk of waste, damage, alienation, disposal or sale in execution of a decree; and where it is demonstrated that if an injunction is not granted, there would likely be a delay or obstruction in the execution of any decree that may eventually be passed in favour of the plaintiff. 9.To obtain a temporary injunction, it is trite that an applicant ought to demonstrate that they have a prima facie case with chances of success; that they stand to suffer irreparable loss that may not be compensated in damages and where the court is in doubt, it ought to decide on a balance of convenience. (See Giella v Cassman Brown [1973] EA 158). 10.A prima facie case was described in the case of Mrao Ltd v First American Bank of Kenya and 2 Others (2003) KLR as follows;“A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 11.The Court of Appeal in Nairobi in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2013] KECA 347 (KLR); Civil Appeal No. 77 of 2012 stated as follows;“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. 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. If damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order should normally be granted, however strong the applicant's claim may appear. If a prima facie case is not established, then irreparable injury and balance of convenience need no consideration." 12.Regarding inhibition, Section 68(1) of the Land Registration Act gives this Honorable court the power to grant an order of inhibition for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge. The purpose of an inhibition is to preserve the property in dispute so that the same does not change hands before the dispute is determined, a position that may render the case nugatory. 13.In Terer v Jepchirchir (Land Case E042 of 2024) [2024] KEELC 14197 (KLR), (16 October 2024) (Ruling), the court stated as follows;“Like an interlocutory injunction, an order of inhibition preserves the property in dispute pending its hearing and determination. The legal basis for issuance of an order of inhibition is to be found at Section 68(1) of the Land Registration Act…” 14.The Court further stated that:“Before a Court issues an order of inhibition, it must satisfy itself that the applicant has good grounds to warrant the issuance of such an order, that the property is at risk of being disposed and that he has an arguable case which will be rendered nugatory by refusal to grant the order.” 15.It is not contested that the respondent is the registered proprietor of the suit property. The applicant’s substantive claim is anchored on adverse possession. Adverse possession claim envisages exclusive possession of the disputed property by the adverse possessor for the statutory period of 12 years. (See Mtana Lewa v Kahindi Ngala [2015] KECA 532 ). To obtain temporary orders of injunction and inhibition, an applicant ought first to demonstrate a prima facie case for adverse possession, by demonstrating exclusive occupation of the suit property for some considerable time. 16.Having considered the pleadings and the application herein, it is clear that the applicant’s core argument is predicated on the several sale agreements he has produced. In fact, his first order in the Originating Summons is a declaration that upon expiry of 12 years from the date of purchase the deceased respondent’s right over the suit property was extinguished. While the date of purchase is relevant to give the history of the dispute, demonstration of purchase alone is insufficient in demonstrating a prima facie case of adverse possession. 17.Adverse possession does not run from the date of purchase, but runs from the date of exclusive occupation and or dispossession of the true owner of the disputed land. The applicant herein has presented many documents, but none demonstrated exclusive possession. The respondent has vehemently disputed possession. Sale agreements although relevant, are not proof of exclusive possession. 18.In the premises, I am not convinced that the applicant has demonstrated a prima facie case with chances of success to warrant grant of the orders sought. Hence, he does not deserve the orders sought. Since there is no demonstration of prima facie case, the question of whether there is an irreparable harm and where the balance of convenience would tilt are now moot and the court need not interrogate them. I therefore find no merit in the application dated 2nd February 2026, which I dismiss with costs to the respondent. 19.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 8TH DAY OF JULY, 2026A. NYUKURIJUDGEIn the presence of;Mr. Idi for the applicantMr. Shiloya for the respondentCourt Assistant: Delphine