Kimotho v Kinyanjui (Sued in Her Capacity as the Administrator of the Estate of the Late Titus Kinyanjui Waithaka) & another (Environment and Land Case E064 of 2025) [2026] KEELC 1989 (KLR)

the farmland to the south. Secondly, the Plaintifi’s beneficial interest arises from an unregistered trust created by her late father, through a handwritten note dated 2006 and which was re-afirmed verbally in family meetings in the years 2008 and 2012 in the presence of the deceased and other family members. Thirdly, on 30-5-2025, a judgment was delivered in Kigumo Succession Cause No. 222 of 2018, in the estate of Titus Kinyanjui Waithaka, declaring the suit parcel and the family graveside part of the deceased’s estate. The said decision is now subject of the Appeal Cause No . E023 of 2025. At the hearing of the case at Kigumo, the Plaintifi did not raise the issue of the trust. Instead she claimed as a dependant. The issue of the trust has not been litigated upon. Fourthly, attempts to resolve the suit amicably have failed and the Plaintifi being old and retired has resided on the suit land for nearly ten (10) years. The 1st Defendant is determined to dispose of the Plaintifi’s interest to third parties. Finally it is only fair and just that the status quo be maintained until this suit is heard and determined. 3. The motion is opposed by the first Defendant who has sworn a replying afidavit dated 18-12-2025 in which she replies as follows. One, the suit land belongs to the estate of her late father Titus Kinyanjui Waithaka where she is the sole beneficiary and administrator. This land was given to the late Titus Kinyanjui by his own father the late Julius Waithaka during the lifetime of both. Titus was issued with a title deed in the year 2009. Two, the suit land was never held in trust for the Plaintifi because Julius Waithaka distributed his estate to his Children during his lifetime. The Plaintifi was given land at Kaharati area. The issue of a trust did not arise during the lifetime of Titus Kinyanjui or Julius Waithaka but only in 2018 after the death of Titus Kinyanjui. The occupation of the suit land occurred by the Plaintifi also happened in 2018 after the death of Titus Kinyanjui and Julius Waithaka. Three, the Plaintifi is married, has her own land and is not destitute as she claims. Finally the status quo that is to be maintained is the one prior to the unlawful occupation of the suit land by the Plaintifi. For the above reasons, the 1st Defendant prays for the dismissal of the Plaintifi’s motion. 4. Counsel for the parties filed written submissions dated 25-2-2026 and 19-3-2026 respectively. Both sides are agreed that since the motion seeks an order of interlocutory injunction, the principles in the case of Giella Vs. Cassman Brown 1973 EA 358, apply. The principles are that the Applicant must establish a prima facie with a probability of success and secondly that she stands to sufier irreparable loss that cannot be adequately compensated with an award of damages. If the court is not sure of the above, it looks at the balance of convenience. 5. Since the suit is still at the interlocutory stage and the pleadings are not yet closed, it is premature to consider whether a prima facie with a probability of success has been made out. The only ground to look at is the balance of convenience. Since it is not in dispute that the Plaintifi is in occupation of the land, it is only fair and just that she continues occupying the land like she has since 2018 rather than order her to vacate the suit land before her claim based on trust has been heard and determined. Were the order to vacate issued, it would mean that the Plaintifi will have been condemned unheard yet Article 50(1) of the Constitution commands that any dispute capable of resolution by the application of law be heard by an impartial tribunal. Let the Plaintifi be heard as she remains in occupation of the land. 6. Consequently and for the reasons already given, the motion dated 4-11-2025 is allowed in terms of prayer 4. Costs in the cause. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 13TH DAY OF APRIL, 2026. M.N. GICHERU JUDGE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1989/eng@2026-04-13 2

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Delivered online in the presence of; Court Assistant – Jackline Plaintifi’s Counsel – Miss Bundi holding brief 1st Defendant’s Counsel – Mr Ng’ang’a 2nd Defendant’s Counsel – None https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1989/eng@2026-04-13 3

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