Ntumuri v Momanyi

2. The grounds in support of the application are that: a. The plaintifis/Applicant has been in open, continuous exclusive and peaceful occupation of land parcel No. Transmara/Moita/302 from the early 1980s well before the said adjudication and demarcation process in the area, during which period he occupied, developed and resided upon the said property without interruption. b. That the suit property was registered in the name of Donald JOHN Momanyi (now deceased) notwithstanding the Applicant’s Continued Possession and occupation, the said registration did not disturb or Afiect the Applicants possession which remained open notorious, continuous, peaceful and adverse to the registered title from that date. c. Buy operations of section 7, 13 and 38 of the Limitations of Actions Act, the Rights of the said deceased were extinguished after twelve years of the Applicants adverse possession and the ownership vested in the Applicant’s in law by prescription. d. That the Applicant had filed a caution in 2023 and removed the same in order to facilitate succession by the 2nd Respondent and enter into an agreement in 2014 and the Applicant purchased the Property under the agreement but the respondent refused to transfer the same and instead transferred the same to John Ndoiyogo Sangale. e. That the Applicant has established has acquired interests in the suit parcel and has established a prima facie case with probability of success. 3. The application is further supported by the supporting afidavit of the Plaintifi/Applicant Teiyai Ole Ntumuri who reiterates the grounds in support of the application and has annexed photographs as evidence of his dwelling. Copy of summons by the County surveyor, a copy of the agreement for sale and payments receipt, copy of judgment in Kilgoris ELC E004 of 2021, copy of oficial search. 4. The application is opposed by the way of the notice of preliminary Objection dated 11th November 2025 on the grounds interalia: i. 5. 6. that the suit is resjudicata having been heard and determined conclusively in Kilgoris Principal Magistrates court ELC case no E004 of 2021 thus this court lacked jurisdiction by virtue of section 7 of the Civil Procedure Act and the Defendants prayed for the Suit to be struck out. Additionally, the Application was opposed by the replying Afidavit of the 2nd Respondent who deposed interalia that: i. the suit was vexatious, frivolous and a gross abuse of the court process ii. That the issues raised by the Plaintifi/Applicants were determined in Kilgoris CM ELC E004of 2021 rendering this suit resjudicata and the Plaintifi opted to file an appeal out of time, which application was initially dismissed for want of prosecution but later on reinstated and while pending a ruling thereof the Applicant filed this suit iii. Thus, this suit is legally untenable and ought to be struck out. The Application was canvased by way of written submissions, which the court summarises as herefollows, The Applicant submits that he has made out a prima facie case with probability of success, as required in the Giella Vs. Casman Brown case and has cited the decision in the case for Centre for Human Education and Awareness and 7others vs Attorney General (2011) eKLR and submit that the balance of convenience tilts in his favour since he is in occupation of the suit property. On Resjudicata the Applicant submits that the issues before the lower court and he issues herein are difierent hence https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1621/eng@2026-03-23 2

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the suit is not Resjudicata and cites the case of CK Bett Traders and 2 others vs Kennedy Mwangi and another to buttress this point and urged the court to allow the application. 7. On their part the 1st and 2nd Respondents submitted on issue for determination to wit whether or not the suit is Resjudicata. 8. On this issue, the Respondent cited section 7 as the foundation of Resjudicata and the Decision of John Maritime Florence vs Cabinet Secretary for Transport and 4 others (2021) eKLR and submitted that the parties in both cases are the same being the Applicant herein and the 1st Defendant, and that the former suit was heard and determined by a competent court and it raised similar issues touching on the same subject matter. On the strength of the above the Respondent argued the court to dismiss the suit and the Application with costs. Issues for Determination 9. From the application, the rival afidavits, and rival submissions the court frames three issues for determination :i. Whether or not the Suit herein Resjudicata? ii. whether or not the application is merited.? iii. Who bears the costs of this application. Analysis and Determination 10. The Respondent has rightly quoted the law on Resjudicata being section 7 of the Civil Procedure Act and the leading decision being the Supreme court decision in John Maritime Florence v Cabinet secretary for Transport and Infrastructure and 4 others where the court held interalia “ for the doctrine to apply the following must be demonstrated a. There is a former judgment or order which is final. b. The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties. c. There must be between the first and second suits, identical parties, subject matter and cause of action 11. The court shall apply the elements to this application. On former judgment, indeed there is a former judgment between the parties and the same subject matter and issues, however the said judgment is not a final judgment as the Applicant herein was granted leave on 2nd day of February 2026 to lodge an appeal out of time against the said judgment in Kilgoris ELC Misc case no E007 of 2025. 12. It is important to note that the said ruling was delivered after the parties herein had filed their rival afidavits and submissions hence were not aware of the outcome of the said application. And thus in so far as leave was grated to file an appeal against the said decision, the judgment by the Kilgoris Chief Magistrates court is not a final judgment and hence this element of Resjudicata has not been proven and the court shall not inquire into the other elements of Resjudicata. 13. The court finds in response to issue number that the suit is therefore not Resjudicata. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1621/eng@2026-03-23 3

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14. On issue number 2 for the Application to be merited the court shall establish whether the Application meets the threshold for Grant of a temporary Injunction. Th court notes that whereas the Applicant sought for a conservatory order he meant to have sought for a temporary injunction under Order 40 of the Civil procedure Rules having cited the said provisions as a Conservatory order is a public law remedy as was held In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR where the Supreme court held interalia at paragraph 86 “ Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes” Hence a conservatory order would not issue in the circumstances of this case where the parties are private individuals enforcing private rights. 15. The application shall be subjected to the test of a grant of interlocutory injunctions as stated In the Giella Vs. Cassman Brown Ltd which set the principles thereof as follows “Firstly, an Applicant must show a primafacie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the Applicant might otherwise sufier irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience 16. Upon consideration of the application has the applicant established a prima facie? In Mrao Limited Vs. First American Bank Limited a prima facie case was defined as one “which on the material presented, a tribunal properly directing itself will conclude that there exists a right which is apparently been infringed by the opposite party so as to call for an explanation or rebuttal from the later…. A prima facie case is more than an arguable case. It is not suficient to raise issues. The evidence must show an infringement of a right and the probability of success of the Applicants case upon trial. That is clearly a standard which is higher than an arguable case…” 17. Granted the Applicant has raised issues of occupation on the suit property, but the Respondent that deponed of the existence of a judgment in previous suit between them which confirmed his proprietary interest, which judgment though is now subject of an intended appeal has not been currently set aside the court is of the view that the Applicant has not met the threshold of a prima facie case, as he has not established a right that is being infringed by the Respondent so as to call a rebuttal by the respondent in view of the previous litigation. 18. Once a prima facie has not been established the court is not required to enquire into the two other conditions in the Giella Vs. Cassman Brown as was held in the decision in the case of Kenya Commercial Finance Company Ltd. Vs. Afraha Education Society (2001) I.E.A 86 where the court held intaralia, “if prima facie case is not established then irreparable injury and balance of convenience need no consideration”. 19. Thus, in answer to issue number 2 the court having found that there is no prima facie case, established it follows that the threshold for a grant of injunction has not been met and hence the application is not merited. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1621/eng@2026-03-23 4

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20. The court is cognizant that the Applicant on 2nd day of February 2026 granted leave to lodge an appeal out of time against Judgement in the previous Litigation in Kilgoris ELC Misc case no E007 of 2025 and hence the need to preserve the suit property the court thus issues i an order for maintenance of status quo under practice direction 28K issued under Gazzete Notice No. 5178/2014, which empowers the court to issue the said status quo orders. 21. The status quo issued herein is defined in terms that the Plaintifi/Applicant is to be allowed access and occupation to the suit property and the status quo on the register is to suit property to remain in the name of the 3rd Defendant/Respondent the current registered owner and no subdivisions and / or transfers. 22. The court thus orders maintenance of status quo in the manner defined above pending hearing and determination of either this suit or the intended Appeal pursuant to the Leave granted on 2nd February 2025 whichever shall be determined earlier. 23. Costs of the application shall be in the cause. DATED AT KILGORIS THIS 23RD DAY OF MARCH, 2026. HON. M.N MWANYALE JUDGE In the presence of CA – Sylvia/ Sandra Mr. Momanyi for the Respondent. Ms. Mwangi for the Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1621/eng@2026-03-23 5

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