Munyae & 10 others v Mulwa & 21 others

Mbithi Mulimu - 83.5 acres Charles Ngila Kieti - 84.7 acres Ndonye Nzioki - 69.0 acres Luusa Mutuma - 69.0 acres Mbithi Nzioki - 53.9 acres Munyao Ngunga - 53.4 acres Kasyoka Mutungi - 82.5 acres Muindi Nguvu - 40.4 acres Munyao Mwania - 56.9 acres Matheka Mulinge - 68.6 acres Katumo Mulwa - 122.5 acres Ngewa Mulinge - 66.0 acres Muli Nzioka - 78.4 acres Waema Sila - 67.4 acres Makau Mukulu - 80.2 acres Muthike Mwanzia - 140.2 acres Muisui Kithanze - 52.3 acres Mutua Mwania - 77.2 acres Muathe Mulwa - 52.3 acres Mutisya Muoki - 76.0 acres Makeu Ndolo - 97.7 acres Kitheka Katumo - 79.7 acres Ngala Mbodo - 54.4 acres Mbithi Nthakyo - 61.5 acres Ngila Mutumba - 61.5 acres Kilonzo Muema - 89.1 acres 2. They pleaded that the appellants were fraudulently given more than 80 acres, and they ought to return the extra acreage to the respondents, as they were not entitled to the same. In the plaint, they asked for the following orders: a. A declaration that the defendants (now appellants) were not entitled to more than 80 acres of land and that the original 32 members are entitled to equal shares. b. A mandatory injunction directing the defendants to excise their respective portions of land which is above 80 acres for distribution among the plaintis (now respondents). c. A declaration that the defendants are entitled to 80 acres each and any excess is held unlawfully and ought to be excised and distributed to the plaintis. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1922/eng@2026-09-25 2

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3. d. A permanent injunction restraining the defendants from owning more than 80 acres and from dealing with any land which is above 80 acres. e. General damages for mesne prots. f. Costs of the suit. Contemporaneously with the plaint, the respondents led an application dated 5 April 2017, seeking two substantive orders which were prayers (3) and (4) in the application: i. That a temporary injunction be issued restraining the respondents, their assignees, their agents, servants or employees from surveying, demarcating, alienating, selling or disposing, or in any manner interfering with Land Parcel Number LR 1849 pending the hearing and determination of the suit. ii. That a mandatory injunction do issue directing the respondents or their representatives to excise any portion of land in excess of 80 acres held in LR 1849 for distribution among the applicants. 4. The application was supported by the adavit of Muathe Mulwa, the 1st respondent, who more or less reiterated what was pleaded in the plaint. He added that the 32 original purchasers were himself, the 1st and 2nd defendants, and the fathers of the other litigants. He averred that on 27 July 1996, a surveyor was appointed to subdivide the land to the 32 original purchasers, and that the surveyor informed the owners that each would get 80 acres. He deposed that on 13 November 2008, the 32 members received a report from a surveyor, which purported to give dierent people dierent acreages, contrary to the agreement that each person would receive 80 acres. He averred that on 29 November 2007, the owners held a meeting and appointed ocials to deal with the issues aected the suit property. He further deposed that on 16 March 2009, the Committee appointed one Nicholas M. Mbithi to act as Chairman to replace one James M. Mbithi. He averred that the appellants inuenced the Assistant County Commissioner to write a letter dated 17 February 2017, to the said Mr. Nicholas M. Mbithi purporting to dissolve the committee. He stated that in the letter, the author purported to constitute a new committee with mandate to appoint a surveyor to establish the exact boundaries and acreages of each individual, engage the national administration to process titles, and undertake audit of public utilities. He was apprehensive that if title deeds were processed using the prevailing acreage, they would suer irreparable harm and injury, hence the need for an order of injunction. He opined that third parties, who had purchased portions from the defendants, should await the survey, to rst establish the actual acreage owned by the original 32 owners, before title deeds could be processed. In his view, the only issue that the surveyor was to verify whether all the original members have equal acreage of 80 acres. 5. The appellants (as defendants) led a statement of defence through the law rm of M/s Gladys Gichuki & Associates Advocates, wherein they pleaded that the land was subdivided in the early 1970s, and each owner has been in exclusive occupation and possession of their individual portions, save for sales made. They denied that the land was to be subdivided equally and they also denied the acreages as particularized. They further pleaded that the 2nd – 21st plaintis had no locus standi to le the suit; that the claim is statute barred as possession took place in 1964 and subdivision occurred in 1970; that the claim for equal ownership of the land is unsubstantiated and without legal basis; that there are close to 500 persons who purchased portions of the suit land from some of the original 32 owners, who are in possession, and their rights are equally paramount; and that the 3rd – 11th defendants had no capacity to https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1922/eng@2026-09-25 3

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be sued in respect of the estates of their fathers. They averred that the suit is intended to bring conicts and scatter the plans of the purchasers, who occupy about 90% of the land, to acquire title deeds for what they purchased. 6. To oppose the application dated 5 April 2017, the appellants led a replying adavit sworn by David Munyae, the 1st appellant. He reiterated that the plaintis/applicants had no capacity to sue and that similarly the defendants had no capacity to be sued for want of letters of administration. He mentioned that the cited 2nd and 4th defendants had since died, and that there were only two original allottees still surviving, i.e himself as 1st defendant, and the 1st plainti. He deposed that he was a manager at Kakuzi, and having in mind the plight of the workers, he identied the suit land. He averred that the suit land was not purchased, but was bequeathed to 32 former employees of Kakuzi Limited upon paying Kshs. 33,000/= as stamp duty. He deposed that some owners paid the money, but others were not able to do so. He stated that through a common understanding, some of the owners, including himself, got slightly bigger portions, based on their input in the entire exercise, and that in the end all were happy with the work they had done. He averred that since he was involved in the acquisition, demarcation and registration of the land, he got a slightly bigger portion, and none of the co-owners ever raised an issue. He deposed that the actual occupation of the suit land took place about 1964 and subdivision occurred about the year 1970. He stated that all parties know the extent of their father’s land and have lived with that knowledge from 1970. He asserted that at no time was there any agreement on equal ownership of the land and pointed out that the title document does not provide for ownership, as tenants in common, in equal shares. He deposed that after subdivision in 1970, the registered owners and their families co-existed throughout the years, without any boundary or acreage dispute, and that the applicants, are largely children of the registered owners, who cannot, after more than 50 years of occupation, start raising the issues now in court. He alleged that majority of the applicants had sold their fathers’ portions of land to purchasers, who are demanding to be issued with title deeds, and the applicants were against that move, and sought to invade their land. He claimed that the 1st applicant (1st respondent in this appeal) had sold all his land, leaving only about ½ acre for himself, and his sole interest is to use the court to illegally get more land from those who have not sold their portions. He deposed that apart from a few registered owners who have not sold much land, about 90% of the land has been sold to outsiders, and majority of the registered owners/children occupy an average of 1 acre each. He added that there was a population of about 8,000 persons who are largely purchasers. 7. Counsel led submissions to argue the application culminating in the impugned ruling. 8. In the ruling, delivered on 24 April 2020, the learned ELC judge, was of opinion that despite the acreages of each individual not being shown in the title to the suit land, unless it was agreed in writing, tenants in common would be entitled to equal shares. He pointed out that the 1st appellant had admitted that some members got bigger portions and therefore the whole exercise of issuing title deeds should be stopped pending hearing of the suit. On the issue of capacity, he held that since the 1st plainti, an original member, was still alive, the suit could be sustained. He held that a prima facie case had been established and he allowed the application as prayed. 9. Aggrieved by the ruling, the appellants have led this appeal on the following grounds: 1. That the learned judge erred in law and in fact in nding that the respondents had satised the guiding principles laid down in the case of Giella vs Cassman Brown and were thus entitled to the prayers of injunction. 2. That the learned judge erred in law and in fact in issuing a mandatory injunction at an interlocutory stage, without hearing oral evidence, eectively making a nal determination on the matter. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1922/eng@2026-09-25 4

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3. 4. That the learned Judge erred in law and in fact when he failed to consider the issues raised in the replying adavit, the submissions placed before him by the appellants, and specically failed to address himself on the preliminary points of law raised in the said pleadings namely; a. That the suit before the Judge is statutory time barred. b. That the 2nd – 22nd respondents/plaintis had no legal capacity to bring the suit before the superior court. c. That the 2nd – 11th appellants/defendants had no legal capacity to be sued. That the learned Judge erred in law and in fact when he failed to consider the issues raised in the replying adavit, the submissions and other authorities placed before him by the appellants/ defendants. 10. The appellants pray that the appeal be allowed with costs, and the application dated 5 April 2017 before the Superior Court be dismissed with costs. They also seek that the suit before the Superior Court be dismissed with costs for being statutorily time barred and lack of capacity of the parties. 11. The appeal was argued through written submissions and oral highlights made by Ms. Mutuku, learned counsel, holding brief for Ms. Gichuki for the appellants, and Mr. Ngure, learned counsel for the respondents. In her submissions, Ms. Mutuku inter alia submitted that the principles for grant of the order of injunction as outlined in the case of Giella vs Cassman Brown (1973) EA 358 were not met. Counsel submitted that apart from the 1st appellant and the 1st respondent, all other parties had no legal title to the suit land and had not taken out letters of administration for the estates of their late fathers. Counsel submitted that accordingly, the applicants failed to demonstrate a right that had been infringed. She submitted that the suit of the respondents lacked any real prospect of success as they had no capacity to sue and the suit was time barred. Counsel submitted that the learned judge also erred in holding that the respondents would suer irreparable harm. She submitted that allowing the injunction would displace numerous settled families who have purchased portions of the land. Counsel further submitted that the learned Judge erred in issuing a mandatory injunction at the interlocutory stage as the circumstances of the case did not meet the strict legal threshold required for such an order. She submitted that the court erred in failing to consider that the 2nd to the 11th appellants have been sued in the purported capacity of being legal representatives when they have not taken out any letters of administration in respect of the estates of their fathers. She submitted that the court ought to have dismissed the application and struck out the suit. Counsel referred us to various authorities to buttress her submissions which we have considered. 12. In his submissions, Mr. Ngure, learned counsel for the respondents, conceded that the learned Judge erred in granting a mandatory injunction at an interlocutory stage and did not oppose the setting aside of this order. He however submitted that the Judge properly exercised his discretion in granting the interlocutory injunction, pending hearing and determination of the case, to avoid the suit property being sold to third parties. He urged this court to uphold the interlocutory order of injunction to preserve the suit property and have the substantive dispute proceed to trial. He further submitted that on 26 November 2024 parties recorded an order in the trial court maintaining the status quo as to ownership and occupation of the suit property pending hearing of the suit. He submitted that having voluntarily agreed that the suit should proceed for hearing, the appellants cannot invite this court to dismiss the case. 13. We have given due consideration to the above submissions. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1922/eng@2026-09-25 5

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14. What was before the court was an application seeking two substantive orders. Firstly, an interlocutory injunction pending hearing of the suit, and secondly, an order of mandatory injunction. In his ruling, the learned Judge allowed the application, meaning that he allowed both the order for an interlocutory injunction, and the order for a mandatory injunction. In his submissions, Mr. Ngure, learned counsel for the respondents, graciously conceded that the court ought not to have granted the order for a mandatory injunction, and he had no issue with that part of the appeal being allowed. The concession by Mr. Ngure is admirable, for with respect, it was misplaced for the learned Judge to grant the order of mandatory injunction given the circumstances of the case. 15. At an interlocutory stage, a mandatory injunction is only granted in exceptional circumstances, and in the clearest of cases, for it has the eect of granting nal orders based on adavit evidence, without giving the parties an opportunity of being heard on merits. The authorities on this proposition are myriad. In Lucy Wangui Gachara v Minudi Okemba Lore (2015) KECA 277 (KLR), this Court expressed as follows: “It has been stated time and again that although the court has jurisdiction to grant a mandatory injunction at the interlocutory stage, such injunction should not be granted, absent special circumstances or only in the clearest of cases. The circumspection with which the court approaches the matter is informed by the fact that the grant of a mandatory injunction amounts to determination of the issues in dispute in a summary manner. In addition, the parties are put in an awkward situation should the court, after hearing the suit, ultimately decide that there was no basis for the mandatory injunction at the interlocutory stage.” 16. We do not see how it could be asserted that the case before the court was clear and obvious, and that there existed exceptional circumstances to warrant granting the mandatory injunction. The eect of the order was to allow the prayers in the plaint without having heard the parties, yet there were issues that were contested and merited a hearing. For example, the contention that there was an understanding that the suit land would not be subdivided equally, that the case was time barred, and the parties lacked capacity, were critical issues that deserved a hearing. It was thus erroneous for the learned Judge to issue the order of mandatory injunction at that stage. Indeed, as we have mentioned, this is conceded by the respondents and we see no need of belabouring the point. 17. Turning to the grant of the order of interlocutory injunction, the principles are now well settled. As outlined in the case of Giella vs Cassman Brown (supra), an applicant needs to demonstrate a prima facie case with a probability of success, demonstrate that he/she stands to suer irreparable loss unless the injunction is granted; and where the court is in doubt, it will decide the application on a balance of convenience. It should also not be forgotten that an order of injunction is in the discretion of the court. An appeal against an order given in the exercise of a discretion has its own special principles. 18. In his submissions, Mr. Ngure referred us to the dictum in the case of Price & Another vs Hilder (1984) KECA 29 (KLR) where Nyarangi J.A expressed himself as follows: “ 21. The law on the matter is now settled. The English case of The El Amria [1981] 2 Lloyds Law Reports page 119 at page 123 as per Brandon LJ, which has been applied in Kenya, has comprehensive principles that are accepted as applying to an application concerning the exercise of a judge’s discretion. The leading local decision is the case of Mbogo v Shah [1968] EA page 93 in which De Lestang VP (as he then was) observed at page 94: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1922/eng@2026-09-25 6

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“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satised that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion." 22. 19. It would be wrong for this Court to interfere with the exercise of the trial judge’s discretion merely because this Court’s decision would have been dierent.” A more or less similar decision was arrived at in the case of Nguruman Ltd vs Nielsen & 2 Others Civil Appeal No. 77 of 2012 (2014) KEC 606 (KLR) which, as in this case, was an appeal from an order of injunction. This court (Ouko, Kiage, M’Inoti JJ.A.), expressed itself as follows: “ 23. Reverting to the main appeal, we emphasize by reiterating that this Court will not interfere with the exercise of discretion by the Judge in the court below unless satised that the decision of the Judge is clearly wrong because of some misdirection, or because of failure to take into consideration relevant matter or because the Judge considered irrelevant matters and as a result arrived at a wrong conclusion, or where there is a clear abuse by the Judge of his discretion. Whenever a court exercises a discretion, there is always a presumption of correctness of decision which is reversible only upon showing of a clear abuse of discretion. 24. Once more, we remind ourselves that in considering this appeal, it would be both premature and prejudicial to the rights of the parties to make any conclusive pronouncements on matters either of fact or law, while the suit where such merits will be decided is still pending.” 20. We endorse and adopt the above dictum. We cannot upset the decision of the ELC Judge simply because we would have arrived at a dierent decision if we had sat as the court of rst instance. We have to be persuaded that the Judge was clearly wrong because he misdirected himself, or he failed to take into consideration a relevant matter, or because he considered an irrelevant matter, and as a result, he arrived at a wrong decision, or where it is clear that he abused his discretion. 21. Going through the ruling, we observe that the learned Judge considered the arguments of the appellant when deducing whether or not a prima facie case had been established. He found that there was no indication in the title that the joint tenants in common were not going to hold the title in equal shares. This was a valid observation, although we must add that this could only be a preliminary opinion, for a nal decision on whether or not the suit property was to be held in equal shares, could only be reached upon hearing the suit. On the issue that the 2nd – 21st plaintis and the 3rd – 11th defendants did not hold grants of letters of administration, the learned Judge was of opinion that given that the 1st plainti was one of the original members, he could still sustain the suit, and that the suit between the 1st plainti and the 1st defendant (1st appellant and 1st respondent herein) could still proceed for trial. There was thus a basis for holding that a prima facie case had been established. We need to recall that a prima facie case is not one that must succeed and it was sucient for the plaintis to demonstrate that there was a right that appeared to have been infringed by the defendants. On the issue of irreparable loss, it was apparent that if the land was further subdivided and new titles issued to third parties, the character of the land would change, and there was possibility of the substratum being lost, which would have led to https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1922/eng@2026-09-25 7

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irreparable injury to the respondents herein. Further, it was apparent that the balance of convenience tilted towards maintaining the status quo which the order injunction aimed to preserve. We emphasise that the ndings of the learned Judge were preliminary in nature, solely for purposes of determining whether or not an interlocutory injunction ought to issue. They were not nal pronouncements as contended by counsel for the appellants. They were ndings that could be challenged at the hearing of the case and could very well be overturned after a full hearing. 22. Contrary to the submissions of counsel for the appellants, the order of injunction was not going to cause any person to be evicted, nor was it going to destabilise the occupation on the ground. Its aim was actually going to preserve the status quo. 23. We therefore see no reason to set aside the order of interlocutory injunction issued by the learned Judge. 24. Within this appeal, counsel for the appellants urged us to dismiss the suit led before the ELC, on the assertion that the suit is time barred and that the respondents lacked locus standi. We are afraid that we cannot enter that arena. There was not before the ELC an application for dismissal of the suit in limine for the court to consider and make a ruling on. What the ELC decided was whether or not to grant the interlocutory and mandatory injunctions as sought by the respondents, not whether or not to dismiss the suit in limine. The subject ruling, not being one that was for dismissal of suit, the appellants cannot expect this Court to make that determination in the rst instance. This is an appellate court and not a trial court, and this Court needs to limit itself to the subject matter that provoked the appeal. The issue of whether or not the suit is for dismissal cannot therefore be taken up on appeal against a ruling on an order of injunction. 25. From the foregoing, it will be seen that the appeal partially succeeds only on the issue of the order of mandatory injunction but fails in its attempt to reverse the order of interlocutory injunction. Consequently, we hereby set aside the order of mandatory injunction. Mr. Ngure had already conceded on this point, and in light of that, there will be no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026 F. TUIYOTT …………………………..….. JUDGE OF APPEAL NDUMA NDERI ………………………………….. JUDGE OF APPEAL MUNYAO SILA .......................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1922/eng@2026-09-25 8

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