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ELCDismissedNotice of motion dated 18/9/2024 (arising from consolidated suits incl. ELC No. 306 of 2016), ELC Kitale· [2025] KEELC 1247 (KLR)

Mulama & 2 others v Eglyn Chepchirchir Choge & 7 others (Environment & Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2025] KEELC 1247 (KLR)

Environment and Land Court
12 March 2025
7,158 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to reinstate evicted squatters because they waited nearly eight years to act, showing that delay can kill even strong land claims.

What this practically means

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Executive summary

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Before the Environment and Land Court at Kitale was a notice of motion dated 18/9/2024 by the 1st and 2nd applicants, members of a squatters' group claiming LR No. 8915/2 (Uasin Gishu) and LR No. 2187 (Trans Nzoia), known as Pembeni Farm, by adverse possession since 1972. They sought a mandatory injunction restoring the status quo ante following their alleged illegal eviction in 2016, together with prohibitory injunctions restraining the 3rd plaintiff/respondent and the 1st-4th respondents (administrators of the estate of the late Hon. Simeon Kiptum Choge) from transferring, subdividing or otherwise dealing with the land, prompted partly by a gazette notice for reconstruction of a lost land register. The respondents opposed, asserting lawful title through an unstayed succession decree of 28/4/2022, the absence of evidence of occupation or eviction, and the applicants' inordinate delay. Justice C.K. Nzili framed two issues: entitlement to a mandatory restorative injunction and to prohibitory injunctions. Applying the principles that mandatory interlocutory injunctions are granted sparingly, only in clear cases and on exceptional circumstances, and with a higher degree of assurance than prohibitory injunctions, the court found no exceptional circumstances: the applicants' delay of nearly eight years was unexplained, they never pursued contempt or police complaints over the eviction, and changed circumstances, including the subsisting succession decree, made restoration unjust. The adverse possession claim would survive without occupation. The prohibitory relief also failed for want of irreparable harm and balance of convenience, the applicants having lodged no cautions or searches. The application was dismissed with costs on 12 March 2025.

Key legal issues

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01

Whether applicants established exceptional circumstances for a mandatory (restorative) injunction at the interlocutory stage

Holding

They did not; the court must feel a high degree of assurance the injunction would be rightly granted at trial, and the applicants' delay, failure to pursue contempt or police complaints, and changed circumstances (succession decree) defeated the claim.

Reasoning

The court applied the settled principles that a mandatory injunction at interlocutory stage is granted sparingly, only in clear cases and on exceptional circumstances, using the Giella test as a baseline with a higher standard. The applicants' delay of close to 8 years, lack of evidence of the eviction's perpetrators, failure to enforce prior orders via contempt, and the subsisting succession decree meant restoration would create greater hardship and injustice.

p. 11
02

Whether adverse possession claims require continued occupation pending trial

Holding

No; the claim rests on dispossession for 12 years during the operative period (1972-2016), and absence of occupation at hearing does not weaken it.

Reasoning

Relying on Wambugu v Njuguna, the court held adverse possession is a question of fact based on evidence of dispossession and discontinuance of the owner's possession for 12 years. Because the relevant adverse period had allegedly matured before the 2016 eviction, reinstatement was unnecessary to preserve the claim, undermining irreparable harm and balance of convenience.

p. 11
03

Whether a prohibitory injunction should issue to preserve the suit land pending hearing

Holding

No; the applicants failed to demonstrate a prima facie case, irreparable damage or balance of convenience, and did not lodge cautions or official searches to substantiate threatened dealings.

Reasoning

The applicants asserted imminent subdivision, transfer and reconstruction of the land register, but produced no recent official searches and never lodged cautions despite awareness since 2014. Equitable rights under Section 38 of the Limitation of Actions Act must first be proved before crystallizing; the applicants also could not refute the subsisting, unstayed succession decree on oath.

p. 12

Legal principles established

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  • A mandatory interlocutory injunction will not be granted absent special or exceptional circumstances and a high degree of assurance that it would be rightly granted at trial.
  • A claim based on adverse possession binds both predecessors and successors in title; loss of occupation does not defeat the claim.
  • Unreasonable delay disentitles a party to equitable remedies such as a mandatory injunction; a party must follow up its own case rather than blame its advocates.

Court orders

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  1. 1.The application dated 18/9/2024 is dismissed with costs.

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSections 9, 10, 11, 12, 13, 16
  • Land Registration ActSection 26
  • Land ActSections 152A-1
  • Evidence ActSection 107
  • Civil Procedure RulesOrder 40

Cases cited (36)

  • Kuria Kiarie & others vs Sammy Magera
    Civil Appeal 326 of 2017 [2018] KECA 467 [KLR]
  • Elijah Makeri Nyagwara vs Stephen Mungai Njuguna
    [2013] eKLR
  • Giella vs Cassman Brown
    1973 EA 358
  • Malier Unissa Karim v Edward Oluoch Odumbe
    (2015) eKLR
  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Ndolo vs Ndolo
    [2008] I KLR 743
  • Kagina vs Kagina & Others
    [2021] KECA 242
  • Kenya Breweries Ltd & Another vs Washington Okeyo
    [2002] eKLR
  • Nation Media Group & Others vs John Harun Mwau
    [2014] eKLR
  • Dickson Mwangi vs Braeburn Ltd T/A Braeside School
    [2004] 2EA 196
  • Gusii Mwalimu Investment Co. Ltd & Others vs Mwalimu Hotel Kisii Ltd
    [1995-1998] 2EA 100
  • Kamau Mucuha vs The Ripples Ltd
    [1990-1994] EA 388
  • Joseph Kaloki T/A Royal Family Assembly vs Nancy Atieno Ouma
    [2020] eKLR
  • Sheria Abdi Hassan vs Nadhif Jama Adan
    [2006] eKLR
  • Ramadhan Salim vs Evans M. Maabi T/A Murphy Auctioneers & Another
    [2016] eKLR
  • New Ocean Transport Ltd & Another vs Anwar Mohamed Bayusuf Ltd
    (2014) eKLR
  • Locabail International Finance Ltd vs Agroexport & Others
    [1989] 1 ALL ER 901
  • Bell Maison Ltd vs Taifa Towers Ltd
    NRB HCCC 2225 of 1992
  • Shepherd Homes Ltd vs Sandham
    [1971] ICH 34
  • Concelia Ondieki vs George Achieng Otieno & Another
    [2019] eKLR
  • Mrao Ltd vs First American Bank (K) Ltd & Others
    [2003] KRL 125
  • Pay Super Power Cash and Carry Ltd vs Nairobi City Council & Others
    CA No. 111 of 2002
  • Elijah Arap Bii vs KCB Ltd
    [2001] eKLR
  • Pius Kipchirchir Kogo vs Frank K. Tenai
    [2018] eKLR
  • Airland Tours & Travel Ltd vs NIC Bank
    NRB Milimani HCCC No. 1234 of 2002
  • Lucy Nungari Ngigi & Others vs NBK Ltd & Another
    eKLR
  • Simon Waiharo Chege vs Paramount Bank (K) Ltd
    NRB Milimani HCCC No. 360 of 2001
  • Esso (K) Ltd vs Mark Makwete Okiya
    C.A No. 69 of 1991
  • East African Fine Spinners Ltd and Receivership & 2 Others vs Bedi Investment
    CA Civil Appl. No. Nai 72 of 1994
  • Wambugu vs Njuguna
    (1983) KLR 173
  • Mukindia vs Mutwiri (Sued as the legal representative of the estate of Fabian Mutwiri Rugiri (Deceased) & Others
    E&L O.S E007 of 2023 [2024] KEELC 6344 [KLR]
  • Mwangi & Another vs Mwangi
    [1986] KLR 328
  • Peter Gichuki Wanjohi vs Juliah Mumbi Muturi
    [2021] eKLR
  • Peter Thuo Kairo vs Kuria Gacheru
    [1988] 2 KAR 111
  • Kasuve vs Mwaani Investment Ltd & Others
    [2004] 1 KLR 184
  • Kimani Ruchine vs Swift Rutherford & Co. Ltd
    [1980] KLR 10
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over interlocutory applications in land disputes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mulama & 2 others v Eglyn Chepchirchir Choge & 7 others (Environment & Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2025] KEELC 1247 (KLR)", Case Analysis (2025). Notice of motion dated 18/9/2024 (arising from consolidated suits incl. ELC No. 306 of 2016), ELC Kitale. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1247/eng@2025-03-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.