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MagistratePartially AllowedNot stated in the judgment (Notice of Motion dated 29th August 2025)· [2026] KEMC 113 (KLR)

Sulaiman v Sigilai (Environment and Land Case E190 of 2025) [2026] KEMC 113 (KLR)

Magistrates' Court (Environment and Land jurisdiction), Nakuru
28 May 2026
1,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court stopped a landowner's neighbour from interfering with his registered land, but made clear the injunction is not an eviction of the defendant already farming there.

What this practically means

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Executive summary

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The Plaintiff/Applicant, registered proprietor of Land Parcel No. Solai/ndungiri Block 1/274 (kitur), moved the court under Order 40 Rules 1, 2 and 3 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 40 of the Constitution, seeking a temporary injunction against the Defendant/Respondent, whom he accused of removing a boundary fence, encroaching on about one acre and threatening to erect permanent structures. The Defendant opposed, characterising the matter as a boundary dispute for the Land Registrar under Section 18 of the Land Registration Act, challenging the legality of the survey, and asserting the trespass claim was statute barred. Applying the Giella v Cassman Brown principles and the definition of a prima facie case in Mrao v First American Bank, the court found the title deed and evidence of encroachment disclosed an arguable right. It rejected the jurisdictional objection because the complaint involved trespass and interference with quiet possession beyond a mere boundary determination, and held that continuing trespass defeats the limitation defence per Park Towers Limited. On irreparable harm and balance of convenience, preserving the suit property was preferred. The motion was allowed: a temporary injunction issued restraining interference with the suit property pending determination of the suit, with costs of the application abiding the outcome. In clarifications, the court confirmed there was no eviction order and allowed the defendant reasonable non-violent access to tend crops until the end of the harvesting season.

Key legal issues

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01

Prima facie case

Holding

The Applicant's title deed and evidence of encroachment, removal of fence and threatened construction demonstrated an arguable right deserving protection

Reasoning

Applying Mrao v First American Bank, the Applicant produced a title deed evidencing registration as proprietor. Registration under Sections 24, 25 and 26 of the Land Registration Act confers absolute ownership unless fraud, illegality or procedural impropriety is established. Legality of the survey is a matter for the full hearing; at interlocutory stage the Court only asks whether an arguable right is shown.

p. 2
02

Jurisdiction in light of Section 18 of the Land Registration Act

Holding

The dispute extends beyond boundaries into protection of proprietary rights and continuing trespass, so the Court has jurisdiction

Reasoning

Relying on Azuri Limited v Pink Properties Limited, boundary disputes ought first to go to the Land Registrar. However, the Applicant alleges trespass, interference with quiet possession, removal of fence and threatened erection of permanent structures, taking the dispute outside a mere boundary determination into the Court's jurisdiction.

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Limitation

Holding

The claim is not statute barred because the alleged encroachment is continuing

Reasoning

Applying Park Towers Limited v John Mithamo Njika & 7 others, trespass is a continuing tort for as long as unlawful occupation persists. Since the Applicant alleges continued encroachment or threats thereof by the Respondent, the limitation defence fails at the interlocutory stage.

p. 3
04

Irreparable harm and balance of convenience

Holding

Continued interference and threatened permanent fixtures may not be compensable in damages, and the balance of convenience favours preserving the suit property

Reasoning

Following Nguruman Ltd v Jan Bonde Nielson, irreparable harm means injury incapable of adequate compensation by damages. The suit property is the Applicant's livelihood and permanent fixtures would permanently alter the land's character. Preserving the status quo occasions less prejudice than allowing continued development before ownership is determined.

p. 3

Legal principles established

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  • Registration confers absolute ownership with all rights and privileges appurtenant thereto unless fraud, illegality or procedural impropriety is established
  • Trespass is a continuing tort for as long as the unlawful occupation or interference persists, so limitation does not bar a claim of continuing trespass

Court orders

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  1. 1.A temporary injunction restraining the respondent, whether by himself, servants, agents, employees or any other persons acting under his authority, from trespassing upon, alienating, interfering with or in any manner dealing with the suit property pending hearing and determination of the suit
  2. 2.Costs of the application to abide the outcome of the main suit
  3. 3.Any crop grown on the parcel by the defendant to be taken care of by the defendant upon reasonable non-violent access till the end of the crop harvesting season
  4. 4.Clarification that there is no eviction order herein
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rules 1, 2 and 3 and Order 51 Rule 1 of the Civil Procedure Rules, and Article 40 of the Constitution of Kenya

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, "Sulaiman v Sigilai (Environment and Land Case E190 of 2025) [2026] KEMC 113 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 29th August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/113/eng@2026-05-28

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