DGM (Suing on Her Own Behalf and on Behalf of SM - Minor) v YMM & another (Environment and Land Appeal E005 of 2025) [2026] KEELC 803 (KLR)

Appellant’s Case 2. Vide a plaint dated 29/10/2024 [the record of appeal bears a post-ruling amended plaint dated 21/1/2025], the appellant, on her own behalf and on behalf of her minor daughter [“SM”], sued the respondents seeking: (i) a declaration that the suit land was held by the 1st respondent in trust for himself and for his family; (ii) a declaration that the 1st respondent breached the trust by selling the suit land to the 2nd respondent; (iii) an order cancelling the name of the 2nd respondent from the land register and reverting the suit land into the name of the 1st respondent to hold it in trust for himself and for his family; (iv) an order of permanent injunction restraining the 2nd respondent from entering into, remaining on, trespassing on or in any way interfering with the use, ownership and possession of the suit land; and (v) an order providing for costs of the suit. 3. Together with the plaint, the appellant filed a notice of motion dated 29/10/2024, seeking: (i) an interlocutory order of inhibition restraining any kind of dealings in the suit land; and (ii) an interlocutory injunction restraining the 2nd respondent against constructing a house on the suit land. 4. The application was premised on the grounds outlined in the motion and in the appellant’s two afidavits dated 29/10/2024 and 28/11/2024 respectively. The case of the appellant was that the 1st respondent was her husband and the father to her daughter, the minor herein. She contended that the suit land was family and trust land because the 1st respondent inherited it from his late father. She further contended that the original land, parcel number Nyaki/Kithoka/3XX belonged to the 1st respondent’s grandfather, the late M'M.M'N., who subdivided the land into six (6) parcels in 1992, namely, Nyaki/Kithoka/17XX – 17XX. The late M'N. transferred parcel number Nyaki/ Kithoka/17XX to the 1st respondent’s father, the late SM. The late SM subdivided parcel number Nyaki/Kithoka/17XX into four (4) parcels in 2011, namely, Nyaki/Kithoka/37XX - 37XX. The appellant stated that the 1st respondent inherited subdivision parcel number Nyaki/Kithoka/37XX from his late father, SM, through succession, adding that the suit land [parcel number Nyaki/ Kithoka/7XXX] was one of the subdivisions created by the 1st respondent out of parcel number Nyaki/Kithoka/37XX. 5. The appellant stated that their family had been living on, occupying and farming on the suit land until “recently” when they saw the 2nd respondent depositing building materials on the land and she started building a house on it. She contended that the sale of the suit land to the 2nd respondent was done secretly and without her consent, adding that the sale was done in breach of the customary trust bestowed upon the 1st respondent. She urged the lower court to grant her the interlocutory orders. 6. The 1st respondent opposed the application through a replying afidavit dated 19/11/2024 and written submissions dated 2/12/2024. The case of the 1st respondent was that the application was based on a misrepresentation of facts. He denied the allegation that the appellant was his wife, adding that they had a brief escapade that gave rise to the minor. He denied the allegation that the appellant resided on the suit land, contending that the appellant was married to someone else and was residing in her matrimonial home with her husband and children. He further stated that the appellant’s husband had taken parental responsibility over the minor. 7. The appellant further contended that he held an absolute title and did not require any consent from the appellant to sell the suit land, adding that the appellant was not his wife. He denied the allegation that the suit land was held in trust and emphasized that he sold and transferred the suit land to the 2nd respondent in December 2023. Lastly, he stated that he owned land parcel number Nyaki/ Kithoka/74XX, measuring 0.72 hectares, against which the appellant could lay a claim of trust, if any. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/803/eng@2026-02-17 2

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He urged the lower court to dismiss the application, contending that the application did not meet the criteria for granting an interlocutory injunction. 8. The 2nd respondent opposed the application through a replying afidavit dated 19/11/2024 and written submissions dated 3/12/2024. Her case was that she was a bona fide purchaser for value who purchased the suit land from the 1st respondent after conducting due diligence and after ascertaining that the suit land was free from any encumbrance, overriding interests or adverse claims. She added that prior to purchasing the suit land, she visited the suit land and confirmed that the land was not occupied. She added that when she enquired on whether the 1st respondent had a spouse whose consent would be required, the 1st respondent swore an afidavit on 13/12/2023 deponing that he was not married. She exhibited the afidavit. 9. The 2nd respondent stated that she had paid the agreed purchase price of Kshs 3,500,000 in full and she had been registered as proprietor of the suit land, adding that she took possession of the suit land in December 2023 and that she had undertaken immense developments on the land since then without any objection from any quarter for over 11 months. She contended that she obtained a loan facility and commenced constructing a residential house on the land, adding that she stood to sufier great prejudice if the injunctive orders were to be issued. The 2nd respondent added that she had purchased building materials worthy a lot of money, adding that the said materials stood to go into waste if the injunctive orders were to be issued. She faulted the applicant for cherry-picking her parcel which was only one subdivision out of various subdivision parcels. 10. Upon considering the application, the lower court came to the finding that the appellant had failed to make a case to warrant issuance of the two interlocutory orders that she sought. The lower court rejected and dismissed her application. Appeal 11. 12. Aggrieved by the ruling of the trial court, the appellant brought this appeal, advancing the following four grounds:1. That the learned trial magistrate erred in law and in facts by failing to determine whether the appellant had established a prima facie case especially in view of the fact that a minor child’s interests in the family land was at stake. 2. That the learned trial magistrate erred in law by dwelling on extraneous matters while determining whether to issue an order of injunction or not. 3. That the learned trial magistrate erred by failing to preserve the suit land by way of an order of inhibition and therefore made it possible for the 2nd Respondent to deal with the suit land in a manner that prejudices the Appellant. 4. That the ruling by the trial magistrate is against the weight of the facts and the Law placed before the Court. The appellant prayed that: (i) the appeal be allowed and the impugned ruling dated 18/12/2024 be set aside; (ii) the suit in the trial court do proceed to hearing before a magistrate other than Hon J. Njoroge; and (iii) costs of the appeal be provided for. Appellant’s Submissions 13. The appellant filed written submissions dated 10/11/2025 and further submissions dated 8/12/2025 through M/s Mwirigi Kaburu & Co Advocates. Counsel submitted that the appellant pleaded https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/803/eng@2026-02-17 3

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the history of the suit land and exhibited evidence showing the origin of the suit land which the 1st respondent did not dispute. Counsel argued that the evidence on record showed that the 1st respondent inherited the suit land from his father, adding that the 1st respondent’s father had inherited the suit land from the 1st respondent’s grandfather. 14. Counsel added that the appellant pleaded that the suit land was ancestral land where she lived with the 1st respondent as a family, adding that the 1st respondent did not deny the averment. Counsel argued that the appellant placed suficient evidence before the lower court to demonstrate a prima facie case of customary trust. Citing the criteria outlined by the Supreme Court of Kenya in Kiebia v M’Lithari & another [2018] KESC 22 (KLR), counsel submitted that the appellant demonstrated a prima facie case of customary trust. 15. Counsel contended that the lower court proceeded as if the appellant was required to tender “foolproof or ironclad” evidence of existence of a customary trust at the interlocutory stage. Counsel faulted the lower court for failing to apply the doctrine of lis pendens. Counsel further faulted the lower court for taking into account the fact that the 1st respondent still held other subdivision parcel(s) and that the 1st respondent was ready and willing to provide for the minor and contended that those were extraneous issues that the lower court should not have taken into account. 16. On the respondent’s contention that the appeal was fatally defective on the ground of lack of prior leave under Order 43 rule 2 of the Civil Procedure Rules, counsel submitted that Order 43 rule 1 (u) of the Civil Procedure Rules granted the appellant an automatic right of appeal. Counsel urged the court to allow the appeal Respondents’ Submissions 17. The respondents filed written submissions dated 3/12/2025 through M/s OMK Advocates LLP. Counsel identified the following as the three issues that fell for determination in the appeal: (i) Whether the appeal is defective for having been field without leave of the court; (ii) Whether the trial court’s ruling was merited; and (iii) Whether the appeal should be dismissed with costs. 18. Citing Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, counsel for the respondents argued that the appellant ought to have sought and obtained leave before initiating the appeal. Counsel contended that in the absence of leave, the appeal was fatally defective. Counsel emphasized that the impugned ruling did not enjoy an automatic right of appeal under the above frameworks. 19. On the merits of the impugned ruling, counsel submitted that the trial court properly held that the 1st respondent had an alternative parcel of land and pointed out from the bar that the 1st respondent had transferred Nyaki/Kithoka/78XX into the joint names of himself and the minor. Counsel further pointed out that the appellant was not in possession of the suit land, adding that the land had been sold and transferred to the 2nd respondent who was in occupation. Counsel argued that an injunction was going to occasion undue hardship to the 2nd respondent. 20. Counsel added that the appellant failed to demonstrate that she was married to the 1st respondent nor that she was in occupation of the suit land. Counsel contended that the lower court properly took into account the fact that the appellant was married to someone else and did not reside on the suit land. Counsel submitted that the appellant did not demonstrate a prima facie case with a probability of success. Counsel urged the court to dismiss the appeal with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/803/eng@2026-02-17 4

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Analysis and Determination 21. The court has read and considered the entire original record of the lower court; the record filed in this appeal; the grounds of appeal; and the parties’ respective submissions. The following are the two key issues that fall for determination in the appeal: (i) Whether the appeal is fatally defective for want of leave under Order 43 rule 2 of the Civil Procedure Rules; and (ii) Whether the application dated 29/10/2024 met the criteria for granting an interlocutory order in the nature of an injunction or an inhibition. 22. The task of a first appellate court was summarized by the Court of Appeal in the case of Susan Munyi v Keshar Shinai (2013) eKLR as follows: “ As a first appellate court our duty of course is to approach the whole evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive to our own independent conclusions.” 23. The principle was similarly outlined in Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows: “ This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 24. Is this appeal fatally defective for want of leave under Order 43 rule 2 of the Civil Procedure Rules? Decisions and orders against which the right of appeal lies as of right are specified in Order 43 rule 1 of the Civil Procedure Rules. Order 43 rule 2 provides that the right of appeal against orders or decisions made under any other framework within the Civil Procedure Rules lies with the leave of the court that made the impugned order. 25. The notice of motion dated 29/10/2024 which culminated in the impugned ruling invited the lower court to exercise jurisdiction under Order 40 rules 1 and 2 of the Civil Procedure Rules and grant the interlocutory orders of injunction and inhibition. The court has looked at Order 43 of the Civil Procedure Rules in its entirety and is satisfied that rule 1 sub rule (u) granted an automatic right of appeal against orders made in exercise of jurisdiction under Order 40 rules 1, 2, 3, 7 and 11 (temporary injunction). To this extent, the respondents’ contention that this appeal is fatally defective for want of leave is misplaced. The finding of the court is that the appeal did require leave because leave was automatically granted by Order 43 rule 1 (u) of the Civil Procedure Rules. 26. Did the application dated 29/10/2024 meet the criteria for granting an interlocutory order in the nature of an injunction or an inhibition? By and large, an inhibition is an injunctive order barring the registration of dealings in a land register. The criteria for granting an inhibition is largely the same as that for granting an ordinary interlocutory injunction. The relevant criteria was outlined by the Court of Appeal for East Africa in the case of Giella v Cassman Brown (1973) EA 358. First, the applicant is required to demonstrate a prima facie case with a probability of success. Second, the applicant is required to demonstrate that if the plea for an interlocutory injunction is declined, he will stand to sufier damage that may not be adequately indemnifiable through an award of damages. Thirdly, should the court have doubt on either or both of the above, the application is to be determined on the basis of the balance of convenience. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/803/eng@2026-02-17 5

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27. Over the years, our superior courts have developed a fourth principle to the efiect that, at the stage of disposing the plea for interlocutory injunctive order, the court should refrain from making conclusive or definitive pronouncements on the key issues in the dispute. The courts have emphasized that definitive and conclusive pronouncements/findings should be reserved for the final disposal of the dispute. 28. Did the appellant demonstrate a prima facie case with a probability of success? The Court of Appeal defined a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd & 2 others as follows: “ A case which, on the materials 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.” 29. Through her pleadings, the appellant contended that the suit land was held by the 1st respondent under customary trust. In Kiebia v M’Lithari & another [2018] KESC 22 (KLR), the Supreme Court of Kenya outlined the following regarding the essential elements of a customary trust: 1. The land in question was before registration, family, clan or group land. 2. The claimant belonged to such family, clan, or group. 3. The relationship of the claimant to such family, clan or group was not so remote or tenuous as to make his/her claim idle or adventurous. 4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances. 5. The claim was directed against the registered proprietor who was a member of the family, clan or group. 30. The appellant was required to tender prima facie evidence demonstrating any of the above elements. Dis she discharge that obligation? The interlocutory case of the appellant was that she was a wife to the 1st respondent and that the 1st respondent was the father to her daughter [the minor]. She further contended that the suit land was family/trust land. Her alleged matrimonial union was vehemently contested by the 1st respondent who deposed that they had a brief escapade which gave rise to the minor but the relationship ended at that point and the appellant got married to a difierent man with whom she got other children and was living with in their matrimonial home. Other than stating that the 1st respondent was her husband, the appellant did not tender any interlocutory evidence demonstrating creation of a marriage of any kind between her and the 1st respondent. She did not tender any evidence showing that she and the minor were residing on the suit land prior to sale of the suit land to the 2nd respondent. 31. Further, whereas the appellant contended that the suit land was trust property by dint of the fact that the 1st respondent inherited it from his late father in 2023, she did not explain why the alleged trust was not ventilated during succession in 2023 so that the trust would be noted in the land register during transmission. The interlocutory evidence that was before the lower court indicated that the suit land was transmitted to the 1st respondent absolutely through succession in 2023. In the absence of any interlocutory explanation as to why in 2023 a subsisting trust was not registered during the transmission, the appellant cannot be said to have demonstrated a prima facie evidence of a trust. 32. The appellant has contended before this court that the lower court ought to have looked at the history of the suit land and come to the conclusion that because the suit land was a subdivision out of land https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/803/eng@2026-02-17 6

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that previously belonged to the 1st respondent’s grandfather, then automatically, the suit land was trust land. The interlocutory evidence before the trial court, however, showed that previous owners owned the land absolutely. Indeed, the encumbrances section of parcel number Nyaki/Kithoka/3XX revealed that the late Jusuf M'M. M'N. owned the land absolutely and charged the land to Kenya Commercial Bank in 1974. He subsequently subdivided the land and transferred the subdivisions as an absolute proprietor. SM [the 1st respondent’s father], likewise, subdivided parcel number Nyaki/ Kithoka/17XX as an absolute proprietor. The totality of the above evidence is that the appellant failed to demonstrate a prima facie case of a trust. 33. On irreparable injury, the suit land measures 0.37 hectares. The 1st respondent tendered evidence showing that he still owned parcel number Nyaki/Kithoka/74XX measuring 0.72 hectares and invited the appellant to ventilate her claim against this particular parcel that he still owned. The appellant termed this as an extraneous matter and faulted the lower court for considering this factor. I do not think this was an extraneous factor. It was the case of the appellant that the land which devolved to the 1st respondent was held in trust for the 1st respondent and for his family. The fact that the 1st respondent still had 0.72 hectares was therefore not an extraneous consideration. It demonstrated that the appellant and the minor were not exposed to irreparable injury because the 1st respondent still had land upon which they could lay their claims. 34. Lastly, on the balance of convenience, by the time the appellant went to the lower court, the suit land had been sold and conveyed to the 2nd respondent. The 2nd respondent had paid purchase price in full and had taken possession and developed the land for 11 months. The 2nd respondent contended that she had procured a loan and her construction was ongoing. In the above circumstances, the balance of convenience tilted in her favour as an innocent purchaser for value who stood to lose immensely if the injunctive orders were issued. 35. For the above reasons, the court finds that the application dated 29/10/2024 did not satisfy the criteria for granting an interlocutory order in the nature of an injunction or an inhibition. 36. On costs, a minor has featured in this appeal. The court is not sure that the minor is aware of the case that was lodged by her mother against her father. The minor may not be in a position to satisfy a decree awarding her father costs of this appeal. Because of the involvement of the minor, parties will bear their respective` costs of the appeal. 37. In the end, for the above reasons, this appeal is rejected and dismissed for lack of merit. Parties shall bear their respective costs of the appeal. DATED, SIGNED AND DELIVERED AT MERU THIS 17TH DAY OF FEBRUARY, 2026. B M EBOSO [MR] ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/803/eng@2026-02-17 7

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