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ELCPartially AllowedOriginating Summons dated 26/4/2024 (amended 13/12/2024)· [2025] KEELC 4149 (KLR)

Gacoki & 6 others v Nyaga & another (Environment & Land Case E004 of 2024) [2025] KEELC 4149 (KLR)

Environment and Land Court
21 May 2025
BEB M Eboso
1,682 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected long-time land occupants from eviction and froze the land register until their adverse possession claim is decided.

What this practically means

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Executive summary

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The plaintiffs, led by Margret Kanyua Gacoki, sued by amended originating summons under Order 37 rules 7 and 8 of the Civil Procedure Rules claiming three acres of land parcel Magumoni/Itugururu/829 by adverse possession, contending that the 1st plaintiff and her late husband purchased and occupied the land from 1982. They then moved the court by notice of motion dated 13/12/2024 seeking an interlocutory injunction against eviction and an inhibition on registrations, after the 1st defendant transferred the suit land to the 2nd defendant during the pendency of the suit and the 2nd defendant issued an eviction notice. The 2nd defendant opposed, contending the family occupied under a licence from the late Nyamu Ngai on only a 30 by 50 feet portion; that time for adverse possession stopped running on Nyamu Ngai's death in 1987 and resumed on 7/12/2023 when she was registered. Applying the Giella v Cassman Brown test, the court found a prima facie case with probability of success, noting the plaintiffs' long occupation was undisputed and only its extent and circumstances were contested, and that irreparable harm was likely given the eviction notice and risk of further transfers. The balance of convenience favoured the status quo. The court allowed the application, issuing an inhibition on the register, restraining eviction and new construction pending determination of the suit, with orders lapsing after 12 months unless extended, and costs in the cause. The substantive adverse possession questions remain for trial.

Key legal issues

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01

Whether the plaintiffs established criteria for an interlocutory injunction in their adverse possession claim

Holding

The first and second limbs of Giella were met and the balance of convenience favoured maintaining the status quo in occupation and registration

Reasoning

It was undisputed the plaintiffs had lived on the suit land for years (since at least 1987), and an eviction notice had issued while the suit was pending after transfer to the 2nd defendant. Given that threatened eviction and risk of further transfers, damages would not be an adequate remedy and the balance of convenience favoured preserving the status quo pending trial.

p. 4
02

Whether an inhibition order should issue over the suit land

Holding

Yes - inhibition warranted to preserve the register pending determination

Reasoning

The 1st defendant had transferred the land to the 2nd defendant during the pendency of the suit, confirming the plaintiffs' apprehension of further dealings to their prejudice. An inhibition preserving the register was therefore necessary pending the hearing of the adverse possession claim.

p. 4

Legal principles established

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  • The test for an interlocutory injunction is the Giella v Cassman Brown criteria: prima facie case, irreparable damage, balance of convenience

Court orders

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  1. 1.Pending the hearing and determination of this suit, no dealings shall be registered in the land register relating to land parcel number Magumoni/Itugururu/829
  2. 2.Pending the hearing and determination of this case, the defendants are restrained against evicting the plaintiffs from the suit land, Magumoni/Itugururu/829
  3. 3.Pending the hearing and determination of this suit, no new structure, permanent or otherwise, shall be erected on the suit land
  4. 4.Unless extended by the court, the above orders shall lapse on expiry of 12 months from today
  5. 5.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rules 7 and 8

Cases cited (1)

  • Giella Vs Cassman Brown & Co. Ltd
    (1973) EA 358
Jurisdiction invoked
Order 37 rules 7 and 8 of the Civil Procedure Rules (adverse possession suit); motion under Civil Procedure Rules interlocutory reliefs

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, "Gacoki & 6 others v Nyaga & another (Environment & Land Case E004 of 2024) [2025] KEELC 4149 (KLR)", Case Analysis (2025). Originating Summons dated 26/4/2024 (amended 13/12/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4149/eng@2025-05-21

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