https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3732

Mwangi (Suing as the Legal Representative of the Estate of Mwangi Ngoriongo (Deceased)) v Kangethe & another (Environment and Land Case E063 of 2025) [2026] KEELC 3732 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3732 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Environment and Land Case E063 of 2025 MN Gicheru, J June 16, 2026 (FORMERLY THIKA ELCLC E061 OF 2025) Between Stephen Mwaniki Mwangi (Suing as the Legal Representative of the Estate of Mwangi Ngoriongo (Deceased)) Applicant and Daniel Mwangi Kangethe 1st Defendant Daniel Mwangi Kangethe (The Estate of Kangethe Ngoriongo alias John Kangethe Ngoriongo (Deceased)) 2nd Defendant Ruling 1.This ruling is on the amended notice of motion dated 22-1-2026. The motion which is brought under Orders 40 rule 1, 51 rule 1 of the Civil Procedure Rules 2010 and Sections 3A of the Civil Procedure Act and all other enabling provisions of the law seeks the following residual orders. 4.That an order of permanent injunction do issue against the Respondents, their agents, servants or any person acting under his instructions and on his behalf from transferring, selling and or transmitting L.R. No. Loc.1/Kiunyu/Kiawaihiga Plot T 7 until further orders are established. 5.That the costs of this application be provided for. Prayers 1,2 and 3 were temporary in nature. 2.The motion is premised on eight (8) grounds and the Plaintiff’s supporting affidavit dated 22-1-2026 the gist of which is as follows. Firstly, the Plaintiff is the legal representative of the estate of his deceased father Mwangi Ngoriongo who died on 19-8-2017. Secondly, the suit land No. Loc. 1/Kiunyu/Kiawaihiga Plot T.7 belongs to his deceased father although it is registered in the name of John Kangethe Ngoriongo who was his father’s elder brother and who died on 5-9-2020 Thirdly John Kangethe Ngoriongo who has never occupied the suit land in his lifetime, on 26-2-2020 acknowledged during a family meeting, that the suit land belongs to the Plaintiff’s father. It could not be transferred to the Plaintiff’s father because it was still unregistered and all that was available was an allotment letter. The late John Kangethe Ngoriongo was to transfer the suit land to the Plaintiff but he died during the COVID Pandemic. Fourthly, after much litigation seeking to restrain the Respondents from interfering with the Plaintiff’s possession of the suit land, an order was issued in Kandara Magistrates’ Court case No. 6 of 2023 in favour of the Plaintiff. The Defendants have disobeyed those orders. The Plaintiff has made several reports at Kihumbuini Police Station but the Defendant have persisted in destroying crops belonging to the Plaintiff growing on the suit land. It is for the above reasons that the Plaintiff filed this suit and the current motion. 3.The motion is opposed by the Respondent and in this regard, the 1st Respondent has sworn a replying affidavit dated 12-2-2026 in which he responds as follows. One, the Respondent has not been issued with any grant of letters of administration to the estate of his father. Secondly, the question of the alleged trust is directly and substantially in issue in Thika Succession Cause No. E004 of 2023 where it was found that the Applicant being a creditor to the estate of John Kangethe Ngoriongo could not supersede the rights of the Children of the deceased. This suit is therefore res judicata. Thirdly, the order of status quo expired on 4-4-2024 when the High Court dismissed the citation in case No. E004/2023. Earlier on 28-2-2023, the Court at Kandara in case No. E006/2023 issued a temporary injunction for 14 days. This does not and cannot sanctify the Plaintiff’s illegal occupation or grant him possessory rights superior to those of the estate of the registered proprietor. Fourthly, the 1st Defendant denies use of violence or destruction of crops. He adds that his late father was in possession of the suit land. Fifthly, the motion dated 22-1-2026 does not meet the threshold for the grant of the order of injunction. 4.Counsel for the parties filed written submissions dated 8-4-2026 and 15-4-2026 respectively. The issues identified are as follows.i.Whether the Plaintiff has complied with Section 11 of the Civil Procedure Act as regards where to institute the suit.ii.Whether the 1st Respondent has capacity to be sued.iii.Whether this suit is res judicata.iv.Whether the conditions precedent to the issuing of an order of injunction have been met by the Plaintiff. 5.I have carefully considered the motion in its entirety including the grounds, the supporting and supplementary affidavit, the replying affidavit, the written submissions and the law cited therein as well as the issues. I find as follows on the issues. 6.On failure to file the suit in the lowest Court competent to try it as required by Section 11 of the Civil Procedure Act, I find that this issue is not raised anywhere in the statement of defence dated 12-2-2026 or the replying affidavit on the same date. That was the proper place to raise such an issue so that the plaintiff could respond to it in the supplementary affidavit. It is not fair to raise such a critical issue abruptly in the written submissions. The value of the suit is not a point of law. It is an issue of fact to be proved by evidence. Allowing the Defendant to raise the issue amounts to ambush. It could well be that the value of the land is out Kshs 20,000,000/=. Having failed to raise the issue in the pleadings, the Defendants cannot raise it in submissions. 7.In regard to the second issue, I find that it is contentious whether the 1st Respondent has been appointed a legal representative of his father’s estate or not. In this case, that is beside the point. The key issue here is not whether the first Defendant has obtained a grant of representation, but whether he is personally committing, threatening to commit, or participating in acts that interfere with the Plaintiff’s right over the land. An injunction operates against the person interfering with the suit land. It is immaterial who that person is. He need not even be a relative of the registered owner. The 1st Defendant has capacity to be sued so long as he is he alleged to be the person trespassing upon the suit land. 8.As for the third issue, I find that the suit is not res judicata. Under Article 165(5) (b) of the Constitution it is provided as follows.(5).The High Court shall not have jurisdiction in respect of matters –(b)falling within the jurisdiction of courts contemplated in Article 162(2)Article 162(2) (b) provides as follows.(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to-(b)the environment and the use and occupation of, and title to, land.In the plaint dated 20-3-2025, the Plaintiff seeks to have the suit land registered in his father’s name. In the current application he seek to continue occupying the suit land and the Defendants to be restrained from occupying it. This is squarely within the jurisdiction of this Court and outside the jurisdiction of the High Court.The succession cause is concerned with who inherits the property of the deceased. This Court is concerned with whether the suit land registered in the name of John Kangethe Ngoriongo is held in trust for Mwangi Ngoriongo, the Plaintiff’s father. Those are two distinct issues triable by the High Court and this Court exclusive of each other. Since the High Court cannot decide on who owns or who should occupy the suit land, then this suit is not res judicata any suit before the High Court. 9.Finally on the issue of injunction, I find that the Plaintiff has proved, prima facie, that he is in occupation of the suit land and that his father Mwangi Ngoriongo, may have been in occupation of the suit land since the year 1963. It is also not disputed that the 1st Defendant’s father is the registered owner of the suit land. The balance of convenience tilts in favour of the Plaintiff’s occupation of the suit land pending the hearing and determination of this suit. Since the pleadings are yet to close and the suit is yet to be heard, I find it unnecessary to consider the other two conditions to be considered before granting an order of injunction, that is to say, prima facie with a probability of success and irreparable loss that cannot be adequately compensated with an award of damages. See Giella vs. Cassman Brown [1973] E.A. 358. 10.In conclusion and for the reasons given, I allow the notice of motion dated 22-1-2026 in terms of prayer 4. Costs in the cause.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 16TH DAY OF JUNE, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistants – AntonyPlaintiff’s Counsel – Mr Kangethe1st Respondent’s Counsel – Miss Wanjohi