Obed Kithure Kirika & 7 others v Gerald Ntari M'Mutea (Sued on his own behalf and on behalf of the estate of M'Ritara M'Mtuambae – Deceased)
The bottom line
#A Meru court refused to stop eviction from 9 acres, ruling that land tied up in court battles cannot be claimed through adverse possession.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application dated 8/5/2026 meets the criteria for granting an ordinary interlocutory injunction by a trial court
- 2.Whether the applicants demonstrated a prima facie case with a probability of success
- 3.Whether the applicants would suffer irreparable damage not compensable by damages
- 4.Where the balance of convenience lies
Key legal issues
#Whether the applicants established a prima facie case of adverse possession
No prima facie case was established because the suit land was under active litigation between the parties' late fathers from 1985 to April 2021
The applicants, children of the late M'Nanjau, claimed adverse possession of the 9 acres decreed to the estate of the late M'Tuambae. The court found the land was subject of continuous litigation during the period relied upon, and the applicants did not demonstrate possession adverse to the party their father was litigating against. The court refrained from definitive findings at interlocutory stage.
Whether the applicants would suffer irreparable damage if the injunction was declined
The question of irreparable damage did not arise since what would be restrained is enforcement of a subsisting decree
The court held the applicants were aware that the April 2021 decree, upheld on appeal, was being enforced, and their injunction sought to stop enforcement of a lawful decree. Injury from lawful enforcement of an existing decree is not irreparable damage warranting interlocutory relief.
Where the balance of convenience lies
The balance of convenience favours allowing enforcement of the subsisting decree
Having found no prima facie case and no irreparable damage, the court determined the third Giella limb in favour of permitting enforcement of the decree of the Chief Magistrate Court as upheld by the Environment and Land Court, rather than preserving possession pending trial.
Legal principles established
#- Land that is the subject of active litigation between two contesting parties cannot contemporaneously be available for adverse possession by a third party or by the litigant's children
- An inhibition is a form of interlocutory injunctive relief assessed against the ordinary injunction criteria
Court orders
#- 1.The application dated 8/5/2026 is rejected and dismissed for lack of merit
- 2.The applicants shall bear costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over land suits; interlocutory application in a pending originating summons
Relief refused
#Inhibition registered against title number Abogeta/Nkachie/828 pending hearing and determination of the suit
Applicants failed to establish the criteria for interlocutory injunctive relief
Temporary injunction restraining the defendant from evicting the plaintiffs or interfering with their possession of the suit land
No prima facie case shown; suit land was subject of active litigation from 1985 to April 2021 and could not have been available for adverse possession; irreparable damage not shown; balance of convenience favours enforcement of the decree
Costs
The applicants shall bear costs of the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the above reasons, the application dated 8/5/2026 is rejected and dismissed for lack of merit. In tandem with the general principle on costs, the applicants shall bear costs of the application.
The suit land could not, in the circumstances, have been contemporaneously available for adverse possession by the applicants.
A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter
Issues in the judgment
#Date inconsistency on filing of the originating summons
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obed Kithure Kirika & 7 others v Gerald Ntari M'Mutea (Sued on his own behalf and on behalf of the estate of M'Ritara M'Mtuambae – Deceased)", Case Analysis (2026). ELCL (OS) Case No. E007 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6241/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.