Karobere v Mutu & 2 others (Environment and Land Case E019 of 2024) [2026] KEELC 1947 (KLR)

Minda Mutu. She also sought inhibitory orders against dealing in the suit land, a temporary injunction against the Respondents over Land Parcel Number MUHITO/GATURIA/26 and distribution of the suit property in favour of the Plaintifi herein. 3. The said matter was duly heard and determined on, and by a ruling delivered on 14th March 2025, the Mukurwe-ini Court dismissed the application and held in favour of the Respondents. The 3rd Defendant argues that the application for Summons for Revocation of Grant captured the same subject matter and reliefs sought in the present suit. 4. The Applicant stated that on 19th December 2024, this Court issued interim orders against the Defendants, which adversely afiect him in respect of the use, occupation and administration of Land Parcel Number MUHITO/GATURIA/26. 5. The 3rd Defendant deposed that he stands to sufier irreparable prejudice if the orders issued on 19th December 2024 are not stayed, informing the Court that he had planted perishable crops on the said land, namely cofiee and pumpkin, which require urgent upkeep and access and which are at risk of irreparable loss and waste due to the subsisting orders, over which land he is the administrator and beneficiary. The Plaintifi/Respondent’s Replying Afidavit 6. The Plaintifi swore an afidavit in response to the application. She acknowledged that indeed, there was a Succession Cause E049 of 2024 in Mukurwe-ini Principal Magistrate’s Court in which she sought revocation of the confirmed grant to pave the way for the suit property to revert back to the deceased’s name for fair distribution. 7. The Mukurwe-ini Court found that, having bought the parcel of land from a beneficiary of a deceased person's estate, she did not meet the threshold for revocation of the grant. 8. The Plaintifi contended that the suit before this Court is founded on a claim of adverse possession, which is a totally difierent cause of action under Order 37, Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act. She stated that the decision in the Succession case is not a bar to the institution of this suit, which relates to the occupation and acquisition of land, which is a preserve of the Environment and Land Court. 9. It is thus the Plaintifi/Respondent's expression that the instant application is unmerited as this Court issued the said orders based on full disclosure by her, including the confirmation of grant, which she annexed. The 3rd Defendant/Applicant’s submissions 10. Counsel for the 3rd Defendant/Applicant in written submissions stated that in Succession Cause No. MCSUCC/EO49/2024 in Mukurwe-ini Principal Magistrate's Court, the Plaintifi sought, inter alia: The revocation of the grant issued in respect of the Estate of Joseph Minda Mutu (Deceased), Inhibitory orders against any dealings with Land Parcel No. Muhito/Gaturta/26; Temporary injunctions against the Respondents; and the redistribution of the suit land in her favour. The said succession cause was heard and determined on merits, and by a ruling delivered on 14th March 2025, the Succession Court dismissed the Plaintifi’s application and upheld the 3rd Respondent’s position regarding his lawful entitlement to the suit property. 11. The Applicant argues that on 19th December 2024, this Honourable Court issued interim orders against the Defendants, including the Applicant, which orders are adversely afiecting the Applicant's use, occupation, and administration of the suit property, despite the decision of the Succession Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1947/eng@2026-02-26 2

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12. Counsel relied on the doctrine of res judicata under Section 7 of the Civil Procedure Act, and the authority of John Florence Maritime Services Ltd & Another V Cabinet Secretary for Transport & Another (2021) eKLR. 13. Counsel contended that both proceedings revolve fundamentally around the question of lawful entitlement to Land Parcel No. Muhito/Gaturia/26. The Plaintifi sought substantially similar relief in both cases, including orders of inhibition and injunctive relief over the suit property. 14. It is further submitted that the Plaintifis conduct in obtaining ex parte orders while suppressing material information about pending litigation constitutes a gross abuse of court process that warrants the court's stern censure since the duty of full and frank disclosure in is a cornerstone of procedural justice, and cited the case of R V Kensington Income Tax Commissioners, Ex Parte Princess Edmond De Polignac [19171 1 KB 486, where the English Court of Appeal established the principle that a party seeking ex parte relief must disclose all material facts, including those adverse to their case. They submit that his principle has been consistently applied in Kenyan jurisprudence, as seen in Satya Bhama Gandhi v. Director Of Public Prosecutions & 3 Others [20181 Eklr 15. Counsel concluded that the suit against the 3rd Respondent ought to be struck out under Order 2 Rule 15 of the Civil Procedure Rules or stayed because it is an abuse of court process, ofiends the doctrine of res judicata, and seeks to reopen matters conclusively determined in Succession Cause MCSUCC/ EO49/2024. The Plaintifi/ Respondent’s Submissions 16. Counsel for the Plaintifi/Respondent submitted that it is not in dispute that at the time that she instituted this suit by way of Originating Summons, there was pending before the Mukurwe-ini Court a Succession No.E049 of 2024 and later a determination in the said Succession Cause was made. They state that this was never concealed from the Court, as it has been quoted in their pleadings. 17. On the allegation by the Respondent that this suit and application are res judicata or res sub judice, they contend that this suit was instituted through Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, based on the doctrine of adverse possession. On the other hand, the suit filed before the Mukurweini Court was a Succession cause seeking revocation of a grant under the Law of Succession Act. The said succession cause has nothing to do with the occupation and use of land and acquisition of property through adverse possession. 18. Counsel urged the Court to find the application by the 3rd Respondent unmerited and undeserving and invited the court to consider the authority in Kihara & 2 others vs Njihia & 4 others(2024)KEELC 5106(KLR), where the Court found that a claim over ownership of parcels of land is difierent from a Succession Cause. Analysis and Determination 19. The Court has considered the application dated 10th June 2025, the reply thereto and submissions by Counsel for the parties, and the issues for determination are; 1. Whether the temporary ex parte orders issued on 19th December 2024 should be set aside, vacated and/or discharged. 2. Whether the suit against the 3rd Respondent should be struck out in light of Mukurwe-ini Principal Magistrates Court Succession Cause No. MCSUCC/E049/2024. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1947/eng@2026-02-26 3

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Whether the temporary ex parte orders issued on 19th December 2024 should be set aside, vacated and/or discharged. 20. By the orders dated 19th December 2024, this Court certified the Plaintifi/Applicant’s Notice of Motion dated 18th December 2024 urgent and granted a temporary order of injunction restraining the 3rd Respondent from entering into, trespassing, taking occupation or in any other way interfering with occupation of the Applicant in her 1 acre within MUHOTO/GATURIA/26 pending hearing and determination of this suit. 21. The Applicant relies on Article 50 (1) and 159 (2) (d) of the Constitution, Sections 3, 3A and 63 of the Civil Procedure Act Order 40 Rules 1,4 &7 and Order 51 Rules 1 and 15 of the Civil Procedure Rules. 22. Article 50 (1) of the Constitution provides that 1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” While Article 159 (2) (d) provides that, 2) In exercising judicial authority, the courts and tribunals shall be guided by the following provides that 1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” While Article 159 (2) (d) provides that, 2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(d) justice shall be administered without undue regard to procedural technicalities; 23. Order 40 Rule 1 of the Civil Procedure Rules states that; Where in any suit it is proved by afidavit or otherwise— 24. (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the defendant threatens or intends to remove or dispose of his property in circumstances afiording reasonable probability that the plaintifi will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may, by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. Order 40 Rule 4 of the Civil Procedure Rules states that (1) Where the court is satisfied for reasons to be recorded that the object of granting the injunction would be defeated by the delay, it may hear the application ex parte. (2) An ex parte injunction may be granted only once for not more than fourteen days and shall not be extended thereafter except once by consent of parties or by the order of the court for a period not exceeding fourteen days. (3) In any case where the court grants an ex parte injunction the applicant shall within three days from the date of issue of the order serve the order, the application and pleading on the party sought to be restrained. In default of service of any of the documents specified under this rule, the injunction shall automatically lapse. (4) All applications under this order shall be heard expeditiously and in any event within sixty days from the date of filing unless the court for good reason extends the time https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1947/eng@2026-02-26 4

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25. An Order for injunction may be discharged, varied, or set aside as provided under Order 40, rule 7, which states that; Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order. 26. Setting aside of an ex parte order is also provided for under Order 51, Rule 15, which states that. The court may set aside an order made ex parte 27. The Court notes that the orders of 19th December 2024 were issued temporarily pending hearing inter partes of the application dated 18th December 2024. The Court then considered the application filed under a certificate of urgency and was satisfied of the urgency of the matters complained of and that the same warranted urgent intervention. The Court notes that details of the Mukurwe-ini Succession Cause No. E049 of 2023, in the matter of the Estate of Joseph Minda Mutu Alias Minda s/o Mutu, was disclosed to this court, and a copy of the certificate of confirmation of grant was attached to the supporting afidavit. 28. The 3rd Respondent/Applicant herein confirms through his afidavits that indeed the court at Mukurwe-ini awarded him one acre out of the suit land parcel No. Muhito/Gaturia/26. He complains that the orders issued by the court have adversely afiected his use, occupation and administration of the land. He further stated that he had planted perishable crops on the land, including cofiee and pumpkins, which require upkeep and access. He complained that he risks sufiering irreparable loss and waste if the orders continue in force. 29. The Respondent, on the other hand, stated in her supporting afidavit that she is in occupation of one acre out of the suit land where she grows maize, beans, arrowroots and cofiee since 1992. She complained that the 3rd Respondent/Applicant herein threatened to take occupation of the portion of the suit land that she occupies based on the certificate of confirmation of grant, thus forcing her to seek the court’s protection. 30. The Court has considered that the above are two confiicting versions and/or accounts of the status of occupancy, use and cultivation of the one acre out of the suit parcel of land that is the subject matter of the substantive Originating Summons, between the 3rd Respondent/Applicant herein and the Respondent in the present application. 31. The Court is of the view that the application dated 18th December 2024 ought to be heard and determined inter partes in order that the Court can determine whether to confirm or discharge the temporary orders issued on 19th December 2024. 32. The Court record shows that the application dated 18th December 2024 was served on all the Respondents. The 2nd Respondent filed a Statement of Grounds of Opposition; the 3rd Respondent filed a Replying Afidavit, while the 1st Respondent did not file any documents. On 18th February 2025, the court gave directions on filing written submissions in the disposition of the application and set the matter for mention to take a ruling date on 29th April 2025. On the same date, Counsel for the 3rd Respondent urged the Court not to extend the interim orders and discharge the same. The Court considered the submissions made and found in favour of extending the orders. On the mention date, the court was not sitting. 33. Subsequently, the 3rd Respondent filed the present application dated 10th June 2025, whose prosecution seems to have taken precedence over the earlier application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1947/eng@2026-02-26 5

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34. From the totality of the matters set out above, the Court is satisfied that the Applicant herein has not established suficient cause to warrant setting aside the orders issued on 19th December 2024. It is of the considered view that the question of whether or not the temporary orders of injunction ought to be set aside or vacated ought to await the inter partes determination of the application dated 18th December 2024. Whether the suit against the 3rd Respondent should be struck out in light of Mukurwe-ini Principal Magistrates Court Succession Cause No. MCSUCC/E049/2024. 35. The Applicant seeks striking out of this suit in light of Mukurwe-ini Principal Magistrates Court Succession Cause No. MCSUCC/E049/2024, where the Plaintifi herein filed a Summons for Revocation of the grant dated 16th October 2024 issued in respect of the estate of the deceased Joseph Minda Mutu. The Applicant claims that the two suits involve the same subject matter and parties seeking similar orders, including injunction and inhibition against the suit parcel of land. She also challenged the distribution of the suit property. 36. The Applicant further states that the application for revocation of the grant was duly heard and determined on merit, and by a ruling delivered on the 14th of March 2025, the Mukurwe-ini Court dismissed the application and held in favour of the Respondents. The 3rd Respondent argues that the application for Summons for Revocation of Grant captured the same subject matter and reliefs sought in the present suit. 37. The Applicant stated that on 19th December 2024, this Court issued interim orders against the Defendants, which adversely afiect him in respect of the use, occupation and administration of Land Parcel Number MUHITO/GATURIA/26. 38. Section 7 of the Civil Procedure Act establishes the Kenyan statutory basis for the doctrine of res judicata and provides that: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 39. The conditions necessary to establish that the doctrine of res judicata has been breached were discussed by the Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR), thus: “ There are conditions to the application of the doctrine of res judicata: i. The issue in the first suit must have been decided by a competent Court. ii. The matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and iii. The parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1947/eng@2026-02-26 6

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40. Thus, in evaluating whether this suit is res-judicata and sub-judice, this Court must first establish whether matters in issue in this suit were directly and substantially in issue were directly and substantially in issue in Mukurwe-ini Succession Cause E049 of 2024. The Summons for revocation of Grant dated 25th September 2024 sought, among other orders, an inhibitory order and a temporary injunction against the 3rd Respondent pending determination of the summons. The substantive prayer in the court’s view was revocation and/or annulment of the grant of letters of administration issued to the Respondent Minda Mutu and subsequently confirmed. She also sought to have the transmission of the suit property nullified to pave the way for the same to revert to the name of the deceased for fair and final distribution. 41. The Court has also looked at the ruling of the Mukurwe-ini court where the issue for determination was “whether the administrator of the estate fraudulently by the making of a false statement or by concealment from the court of something material to the case obtained both letters of administration herein and confirmed grant herein by failing to reveal to the court that th e applicant had bought 1,0 acres of the deceased estate L.R No. Muhito/Gaturia/26 from the 2nd Respondent, hence was entitled to a share thereof during the distribution” 42. The Court held that the Applicant was not a beneficiary of the estate of the deceased person, subject matter of the succession cause, and was thus not entitled to disclosure of the proceedings in the cause. On the question of her claim to purchase a portion of the suit land from the 2nd Respondent, the court stated that the transaction was an illegality as far as the law of succession was concerned, and the Applicant's recourse was the remedy of refund of money in a civil court. 43. The present suit, filed under the Originating Summons dated 18th December 2024, is based on a claim of adverse possession of 1 acre out of LR Muhito/Gaturia/26. The Claimant states that she has been in exclusive occupation of the land since 1992. 44. From the foregoing, it is clear that the matters in issue in the present suit were not directly and substantially in issue in Mukurwe-ini Succession Cause E049 of 2024. 45. The other criterion used to determine whether the suit herein is res judicata is whether the matter in issue was heard and determined by a competent court. The competency of a court denotes jurisdiction, and considering that the two matters were heard by two difierent courts with separate and distinct jurisdictions, it is necessary to examine the jurisdictions of the two courts. 46. The Environment and Land Court is established under Article 162(2)(b) of the Constitution provides that 1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” While Article 159 (2) (d) provides that, 2) In exercising judicial authority, the courts and tribunals shall be guided by the following of Kenya,2020, which provides that: Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (b) 47. the environment and the use and occupation of, and title to, land. The jurisdiction of this Court is outlined in Section 13(1) and (2) of the Environment and Land Act No. 19 of 2011, which provides that: (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1947/eng@2026-02-26 7

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(2) 48. In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes― (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to the environment and land." As stated earlier, the claim in this present suit involves occupation and use of land giving rise to adverse possession under Section 38 of the Limitation of Actions Act and Order 37 Rule 7 (1) of the Civil Procedure Rules. There is nothing on record to show that the Mukurwe-ini Case heard and determined questions of possession, occupation and use of the suit land giving rise to a claim for adverse possession. In any case, the court has no jurisdiction to hear such claims as per the authority of Sugawara v Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso, alias Mutarakwa Kiroti Lepaso and on her Own) & 3 others KECA 1417(KLR) where the Court of Appeal held that the hearing and determination of matters of adverse possession was specifically limited to the Environment and Land Court to the exclusion of the Magistrates' Court. The Court stated as follows; “ The controversial question of jurisdiction of the Magistrates' Courts in claims for adverse possession emanated from sections 37 and 38 of the Limitation of Actions Act, where it was specifically provided that such claims were to be heard by the High Court. Reference was to the "High Court" as the court to which such cases were heard, and given the dictates of the Constitution, that should be construed to mean the Environment and Land Court, as being the court donated with jurisdiction to hear and determine matters pertaining to adverse possession of land. The efiect of that interpretation was that it was only the Environment and Land Court established under article 162(2)(b) that was mandated to hear those cases. So that, notwithstanding the expansion of the jurisdiction of environment and land usage to Magistrates Courts, it was distinctive that under section 9(a) of the Magistrates Courts Act, various matters were specified for determination, but claims for adverse possession were not included.” 49. Thus, from the foregoing, issues of injunction and inhibition restraining one from performing certain acts over land fall under the environment use, occupation and title to land, and thus, the Mukurwe-ini Principal Magistrate’s Court sitting as a Succession Court was not a competent court in determining the aforesaid issues. W. Musyoka J in the case of In The Matter of the Estate of Mbai Wainaina (Deceased) (Succession Cause 864 of 1996) [2015] KEHC 6978 (KLR) (Family) (23 January 2015) (Ruling) determined as follows: “ The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determine issues of ownership of property and declarations of trusts. It is not a matter of the probate court being incompetent to deal with such issues, but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for the determination of such issues. A party that wishes to have https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1947/eng@2026-02-26 8

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such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court." 50. Further, the work of the succession court was only to distribute the estate of the deceased and not to determine any disputed matters of sale or adverse possession. Musyoka J. again, in the case of In re Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR), noted as follows: “ Clearly, disputes as between the estate and third parties need not be determined within the succession cause. The legal infrastructure in place provides for resolution elsewhere, and upon a determination being made by the civil court, the decree or order is then made available to the probate court for implementation. In the meantime, the property in question is removed from the distribution table. The presumption is that such disputes arise before the distribution of the estate or the confirmation of the grant. Where they arise after confirmation, then they ought strictly to be determined outside of the probate suit, for the probate court would in most cases be functus oficio so far as the property in question is concerned. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.” 51. From the foregoing, the court is satisfied that the matters directly and substantially in issue in Mukurwe-ini Principal Magistrates Court Succession Cause No. MCSUCC/E049/2024 is not directly and substantially in issue in this suit. The Court further finds that the Mukurwe-ini Principal Magistrates Court in Succession Cause No. MCSUCC/E049/2024 was not competent to hear and determine the issues in the present suit. 52. The final order of the court is that the application dated 10th June 2025 lacks merit and is dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS IN NAIROBI, THIS 26TH DAY OF FEBRUARY, 2026 HON. LADY JUSTICE L.G. KIMANI JUDGE In the Presence of:Brian: Court Assistant Ms. Nyambake holding brief for Munyenze for the 3rd Defendant/Applicant N/A for the 1st Respondents/Applicant in the main suit N/A for the 2nd Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1947/eng@2026-02-26 9

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