Nrandzaka v Josephat & 3 others (Enviromental and Land Originating Summons E025 of 2025) [2026] KEELC 2749 (KLR)

swore a Supporting Afidavit dated 4th February 2026, contending that the matter is res judicata and that the Plaintifi has perjured herself. 3. Therefore, the Court was invited to determine, in the first instance, whether the Plaintifi’s claim for land adverse possession was properly before this Court or whether it was barred by the doctrine of res judicata. Secondly, whether the Plaintifi had met the threshold for grant of interlocutory reliefs pending the full hearing of the suit. II. The Notice of Motion application by the Plaintifi/Applicant 4. The Plaintifi’s application was brought under the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 Laws of Kenya, Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010, Section 68 of the Land Registration Act, No. 3 of 2012 and all other enabling provisions of the law. 5. The Plaintifi/Applicant’s sought for the following orders: - 6. a. Spent. b. Spent. c. That pending the hearing and determination of the Originating Summons for Adverse Possession, orders of injunction do issue restraining the Respondent as prayed above. d. That an order of inhibition do issue under Section 68 of the Land Registration Act against Land Parcel No. Kwale/Diani/ SS/ 295, prohibiting any dealings whatsoever until this matter is heard and determined. e. That the OCS Diani Police Station do ensure compliance and maintenance of peace on the suit property. f. That costs of this Application be in the cause. The application was premised on the grounds, testimonial facts and averments made out under the 6th paragraphed Supporting Afidavit of - Mwanamisi Masudi Nrandzaka, the Plaintifi/ Applicant herein, sworn and dated the same day with the application. The Applicant averred that: a. She had been in open, continuous, exclusive and uninterrupted occupation of Land Parcel No. Kwale/Diani/ SS/ 295 for over 12 years post registration openly developing and using the land. b. She had filed an Originating Summons for land adverse possession as provided for under the provision of Section 38 of the Limitation of Actions Act, Cap. 22. c. Unless this Honourable Court issues urgent protective orders , the Respondent will violently evict her, destroy her developments, alter the land, eliminate the basis of the intended suit. d. She sufiered irreparable harm unless this Court intervenes. e. It was just and in the interest of justice that the orders sought be granted III. The Notice of Motion application by the Defendants 7. The Defendants’ application was brought under the provision of Articles 22, 40 and 50(1) of the Constitution of Kenya, Sections 7 and 8 of the Civil Procedure Act, Cap. Sections 13 and 19 (2) of the Environment and Land Court Act, No. 19 of 2011 and Order 2 Rule 15 of the Civil Procedure Rules, 2010 among other enabling provisions. 8. The Defendants sought for the following orders: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 2

page 2 of 33

9. a. Spent. b. Spent. c. This Honourable Court be pleased to issue an ORDER that the Plaintifi has committed perjury by knowingly giving false sworn testimony in violation of the provisions of Section 108 of the Penal Code, CAP. 63, and do impose such sanctions as are just pursuant to Section 110 of the Penal Code. d. This Honourable Court be pleased to issue an ORDER striking out the Pleadings being the Plaintifi’s Notice of Motion dated December 9, 2025, and to the Originating Summons of even date, in their entirety. e. Costs of the Suit and this Application be awarded to the Defendants. The application by was premised on the grounds, testimonial facts and averments made out under the 14 Paragraphed Supporting Afidavit of – KAREN KANJIRY KIRERA, the 2nd Defendant herein, sworn and dated the same day with the application. The Applicant averred that:a. There had been produced and shown to the Afiant copies of the documents from pages 1 to 23 forming the bundle of documents in support of the exhibit marked as “KKK ‑ 1”. Reference to all documents was in italics and unless otherwise specified referred to the bundle marked as “KKK ‑ 1”. b. At all material times relevant to the suit, the Plaintifi had approached the Honourable Court in breach of her duty of candour and with unclean hands, having wholly failed to make full and frank disclosure of all facts material to the determination of the proceedings. c. The Plaintifi had deliberately failed to disclose pertinent facts about the subject property, to wit, disclosure of other court proceedings between the same parties over the same subject matter. d. The Plaintifi had deliberately failed to disclose and willfully withheld material facts concerning the subject matter, in particular the existence and final disposition of prior proceedings between the same parties in respect of the same subject matter, which had already been adjudicated and settled. e. In particular, at all material times, the issues before the Honourable Court had been the subject of the following proceedings: i. Mombasa Court of Appeal Civil Appeal No. E054 of 2023 – Llyod Mugo Josphat & 3 Others – Versus - Mwanahamisi Masudi. ii. Kwale ELC Appeal No. E003 of 2021 – Llyod Mugo Josphat & 3 others – Versus Mwanahamisi Masudi. iii. Kwale CMCC No. 324 of 2006 – Llyod Mugo Josphat & 3 others – Versus Mwanahamisi Masudi. A copy of the Judgment of the Court of Appeal was at pages 1 – 23 of the exhibit marked as “KKK ‑ 1”. f. She had been advised by her advocates on record, whose advice she verily believed to be true, that the Honourable Court lacked jurisdiction to hear and determine the proceedings ab initio by dint of the provision Sections 7 and 8 of the Civil Procedure Act, Cap. 21, Laws of Kenya, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 3

page 3 of 33

read together with the Sections 13 and 19(2) of the Environment and Land Court Act (Cap. 8D, Laws of Kenya). g. The Plaintifi had sought orders of adverse possession in respect of land formerly known as Land Reference Number Kwale/Diani/295, subsequently sub - divided into Kwale/ Diani/529, 530, 531, 532, and 533 (Hereinafter referred as “The Parcels”). h. At all material times, the adverse‑possession claims over the said Parcels had already been ventilated and determined in the proceedings enumerated in paragraph 6 above. i. In the circumstances, the Plaintifi, through mischief, misrepresentation, and material non‑disclosure, had purported to advance a claim over a suit property that did not in fact exist, rendering the suit, from its inception, frivolous, scandalous, vexatious, and an abuse of the Honourable Court’s process—a fact well known to the Plaintifi. j. The Afiant had been advised by her advocates on record, whose advice she verily believed to be true, that at all material times, the present suit was nothing more than an academic exercise and an abuse of the Honourable Court’s process. The Plaintifi’s claim was therefore ipso facto fatally defective and incurable in law. k. The subsisting “status quo” order had restrained the Defendants from exercising their proprietary right to evict the Plaintifi, notwithstanding the concluded litigation referred to herein. l. Owing to the foregoing, the Defendants had prayed that the Application be certified urgent, heard on priority, and that directions be issued for its prompt disposal in the interests of justice. IV. The Response to the Application 10. The Plaintifi/Respondent responded to the Notice of Motion application sworn on 6th February 2026 through a 28 Paragraphed Replying Afidavit by Mwanamisi Masudi Nrandzaka, who averred that:a. The Plaintifi/Respondent had read the said Application together with the Supporting Afidavit and responded thereto as hereunder. b. The Defendants had alleged that the Plaintifi had concealed material facts from the Honourable Court by failing to disclose previous litigation between the parties culminating in a decision of the Court of Appeal. c. The Plaintifi had categorically denied any concealment, misrepresentation, or abuse of the court process. d. It was true that there had existed previous litigation between the parties in respect of the suit property, which litigation had concerned a claim for vacant possession based on registered ownership. e. The issue of adverse possession had never been pleaded, framed, canvassed, or determined in the trial court. f. Similarly, the issue of adverse possession had not formed part of the pleadings, issues for determination, submissions, or judgment before the Court of Appeal. g. At no point in the previous proceedings had the Honourable Court, nor the appellate court, determined whether the Defendants’ title had been extinguished by operation of Sections 7, 13, 17, or 38 of the Limitation of Actions Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 4

page 4 of 33

h. The Defendants’ allegation of concealment was therefore unfounded, misleading, and calculated to misdirect the Honourable Court. i. The previous suit had been premised purely on registered proprietorship and a prayer for vacant possession. j. The present suit was founded on a statutory cause of action for adverse possession, which was an independent and distinct legal claim arising under the Limitation of Actions Act. k. Adverse possession was not automatically determined unless specifically pleaded and proved. l. A claim under the provision of Section 38 of the Limitation of Actions Act, Cap. 22 had required specific pleading, specific evidence, and specific findings regarding: a. Open and notorious possession; b. Continuous and uninterrupted occupation; c. Exclusive possession; d. Lapse of twelve (12) years; e. Dispossession or discontinuance of possession by the registered owner a. None of the above elements had been directly or substantially in issue in the previous proceedings. b. Consequently, the doctrine of res judicata under the provision of Section 7 of the Civil Procedure Act, Cap. 21 had not applied. c. For res judicata to apply, the matter had to have been directly and substantially in issue and finally determined between the same parties. d. Adverse possession had neither been directly nor substantially in issue in the previous suit. e. The court could not have been said to have determined a matter that had never been pleaded or canvassed before it. f. The Defendants had improperly attempted to stretch the doctrine of res judicata beyond its statutory limits. g. The present claim was a statutory claim grounded in limitation law and had raised substantive triable issues requiring full hearing and determination on merit. h. The Application under certificate of urgency had been a calculated attempt to summarily defeat the Plaintifi’s constitutional and statutory right to be heard on a substantive claim. i. The Plaintifi’s occupation of the suit property had been open, continuous, exclusive, and uninterrupted for a period exceeding twelve (12) years. j. By operation of law, the Defendants’ title had been extinguished upon lapse of the statutory period. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 5

page 5 of 33

k. The rights accruing under adverse possession had arisen by operation of law and had not been dependent upon prior litigation. l. The previous litigation had not and could not have extinguished statutory rights that had already accrued. m. The Defendants had not demonstrated any genuine urgency warranting the drastic orders sought. n. The Application had been intended to intimidate, frustrate, and prematurely terminate the suit without hearing. o. The Honourable Court had been vested with jurisdiction under Article 162(2) (b) of the Constitution and Section 13 of the Environment and Land Court Act to determine claims of adverse possession. p. The suit had raised serious and weighty issues of law and fact which could only have been resolved through a full hearing. q. The Defendants’ Application had been misconceived, legally untenable, and an abuse of the court process. r. It had been in the interests of justice that the Application be dismissed with costs. I. Submissions 11. While all the parties were present in Court, they were directed to have the Notice of Motion application dated 9th December, 2025 and 2nd February, 2026 be disposed of by way of written submissions. Pursuant to that, all parties obliged accordingly. 12. Subsequently, a ruling date was reserved for 27th April, 2026 accordingly. A. The Written Submissions by the Plaintifi on the Notice of Motion application dated 9th December, 2025 13. 14. The Plaintifi through the Law firm of Messrs. Mbwiza & Company Advocates filed their written submissions dated 28th March, 2026. Mr. Mwanjama Advocate submitted that the submissions was made on behalf of the Applicant in support of the Notice of Motion application dated 9th December 2025, brought under the provision of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010, Section 68 of the Land Registration Act, and all other enabling provisions of the law. The Applicant sought for the conservatory reliefs in the nature of: a. Temporary injunction restraining the Respondents from interfering with the suit property; b. An order of inhibition against dealings in Land Parcel No. KWALE/DIANI/SS/295; c. Preservation of the suit property pending hearing and determination of the Originating Summons for adverse possession. According to the Learned Counsel, this application was necessitated by the Respondents' unlawful interference with the Applicant's long-standing possession, thereby threatening to defeat the substratum of the suit. The Learned Counsel relied on the following issues for determination: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 6

page 6 of 33

15. a. Whether the Applicant has established a prima facie case with a probability of success; b. Whether the Applicant stands to sufier irreparable harm; c. Where the balance of convenience lies; d. Whether this Court should grant an order of inhibition. On the law on interlocutory injunction, the Learned Counsel submitted that the principles governing interlocutory injunctions are settled. In “Giella – Versus - Cassman Brown & Co. Limited”, the Court laid down the tripartite test:a. Existence of a prima facie case; b. Likelihood of irreparable injury; c. Balance of convenience 16. These principles were reafirmed and elaborated in the case of:- “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others”, where the Court of Appeal emphasized that the three conditions are sequential and must be satisfied as separate, distinct hurdles. The Court stated that if a prima facie case is not established, the Court need not proceed further. 17. On whether a prima facie case had been established, the Learned Counsel submitted that a prima facie case is one that discloses arguable rightsdeserving protection. In the case:- “Mrao Limited – Versus First American Bank of Kenya Limited”, the Court defined it as: “ A case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed...” 18. 19. The Applicant's claim is grounded on adverse possession.The law on adverse possession is well settled in the case:- “Kasukve – Versus - Mwaani Investments Limited”, the Court held that a claimant must demonstrate possession that is: a. Open and notorious; b. Exclusive; c. Continuous; d. Without permission of the true owner. Similarly, in the case of:- “Wambugu – Versus - Njuguna”, the Court held that adverse possession is established where the true owner has been dispossessed or has discontinued possession.Further, in the case of:- “Mtana Lewa – Versus - Kahindi Ngala Mwagandi”, the Court of Appeal stated: “ Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it...” 20. According to the Learned Counsel, the Applicant had demonstrated actual, open and uninterrupted possession; Developments and occupation on the land; Absence of consent from the Respondents; and Recent acts of interference by the Respondents. The Learned Counsel submitted that this Honourable Court ought to find that the Applicant has established a strong prima facie case with overwhelming chances of success. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 7

page 7 of 33

21. On the second limb, the Learned Counsel submitted that it requires proof that damages would not be an adequate remedy. In the case of:- “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others (Supra)”, the Court held that irreparable injury must be actual, substantial, and demonstrable.Further, in the case of:- “Kenya Commercial Finance Company Limited – Versus - Afraha Education Society”, the Court emphasized that where property rights was threatened, damages are not always adequate. 22. In the case of: “Olympic Sports House Limited – Versus - School Equipment Centre Limited”, the Court held that where the subject matter is land, courts should lean towards preserving it. 23. In this Application, if the orders sought was not granted: 24. a. The Applicant may be forcefully evicted; b. Developments may be destroyed; c. The Respondents may alienate or transfer the land; d. The substratum of the suit will be irreversibly lost. e. Such harm cannot be compensated by damages The Learned Counsel submitted that where doubt exists, the Court determines the matter on a balance of convenience. In the case of:- “American Cyanamid Co. – Versus - Ethicon Limited”, the Court emphasized preservation of the status quo. Similarly, in the case of:- “Suleiman – Versus - Amboseli Resort Limited”, the Court held that:“ The Court should opt for the lower rather than the higher risk of injustice.” 25. In this application, the Applicant was in possession, the Respondents were attempting to disturb that possession, the status quo was the Applicant’s occupation and the balance of convenience therefore titled overwhelmingly in favour of the Applicant. 26. On the order for inhibition. The Learned Counsel relied on the provision of Section 68 of the Land Registration Act empowers this Court to issue orders of inhibition. In the case of:- “Muriuki Marigi – Versus - Richard Marigi”, the Court afirmed the need to preserve property pending litigation.Further, in the case:- “Joseph Siro Mosioma – Versus – HFCK”, the Court held that inhibition prevents dealings that may defeat a claim. 27. According to the Learned Counsel in this Application there was a real risk that the Respondents may transfer the land, their party interests may arise and the suit may be rendered nugatory. An order of inhibition was therefore necessary to freeze the register pending determination of the dispute. 28. On the equitable consideration. The Learned Counsel submitted that injunctions are equitable remedies:a. The Applicant had approached the Court with clean hands and without delay. b. Equity demanded protection of a party in possession against unlawful interference 29. On the preservation of the substratum of the suit. The Learned Counsel argued that Courts had consistently held that the purpose of interlocutory relief is to preserve the subject matter. In the case of:“Madhupaper International Limited – Versus – Kerr”, the Court stressed that interim orders should ensure the main suit is not rendered academic. Failure to grant the orders sought will defeat the very purpose of the Applicant's claim for adverse possession. 30. In conclusion, the Learned Counsel submitted that the Applicant had: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 8

page 8 of 33

a. Established a prima facie case; b. Demonstrated irreparable harm; c. Shown that the balance of convenience is in his favour; d. Justified the need for an inhibition order 31. This Application was meritorious and deserving of this Honourable Court's discretion. 32. On the prayers. The Applicant humbly prayed that this Honourable Court be pleased to: a. Grant a temporary injunction restraining the Respondents from interfering with Land Parcel No. Kwale/Diani/SS/295; including all it subdivisions; b. Issue an order of inhibition under the provision of Section 68 of the Land Registration Act; c. Direct the OCS Diani Police Station to ensure compliance; d. Award costs of the Application to the Applicant B. The Written Submissions by the Plaintifi for the Notice of Motion application dated 28th March, 2026 33. The Plaintifi through the Law firm of Messrs. Mbwiza & Company Advocates filed their written submissions dated 28th March, 2026 wherein. Mr. Mwanjama Advocate submitted that the submissions are in opposition to the Respondent's Application seeking to strike out the Applicant's suit on grounds that the matter was conclusively determined by the Court of Appeal and is therefore res judicata.The Applicant respectfully submits that, the said Application is misconceived, legally untenable, and a gross misapplication of the doctrine of res judicata, as the present proceedings are anchored on a distinct statutory cause of action-adverse possession. 34. This matter concerned the suit property which had, for over half a century, been the home and livelihood of the Plaintifi/Respondent and her family. The uncontested factual matrix was that the Plaintifi/Respondent entered upon and took possession of the suit land in or about the year 1974. From that time to date, her occupation has been open, continuous, exclusive, and without interruption. Upon entry, the Plaintifi/Respondent, together with her family, established their homestead on the land, erected residential structures, and have lived thereon as of right. Over the decades, the suit land has not merely served as a place of residence but as the centre of their social and economic existence. The family has buried their kin on the land, an act deeply indicative of permanent settlement and assertion of proprietary interest. 35. In addition, the Plaintifi/Respondent has, since the year 1970s, engaged in subsistence farming on the suit property, cultivating perennial crops including mangoes, coconut trees, and cashew nuts, many of which are now over forty (40) years old. Such developments are not transient acts; they are enduring investments that unmistakably demonstrate long, uninterrupted possession and dominion over the land. 36. According to the Learned Counsel asserted that it was not in dispute that a considerable period elapsed between the first registration of the suit land in the name of the registered proprietor and the institution of proceedings for vacant possession before the Kwale Law Courts. By the time the said suit for vacant possession was instituted, the statutory period prescribed for the accrual of rights under adverse possession had long lapsed. Consequently, the registeredproprietor's title, to the extent of the Plaintifi/ Respondent's occupation, had been extinguished by operation of law. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 9

page 9 of 33

37. The Applicant herein did, in fact, institute proceedings for vacant possession against the Plaintifi/ Respondent. However, that claim was unsuccessful. The trial court, upon evaluating the evidence, dismissed the claim for vacant possession, thereby afirming, albeit indirectly, the Plaintifi/ Respondent's settled occupation of the suit land.Of particular significance is the position taken by the Applicant in their own grounds of appeal. The Applicant expressly faulted the learned trial magistrate for introducing and determining issues of adverse possession, contending that the same had not been pleaded by the Respondent, who was at the time the Defendant in the lower court. This admission is critical. It unequivocally confirms that adverse possession was neither pleaded nor directly placed in issue before the trial court. 38. The legal consequence of that position is inescapable: the question of adverse possession was not directly and substantially in issue during the trial proceedings. It follows that the trial court could not have conclusively determined the matter, nor could such determination form a proper basis for appellate consideration. Following the dismissal of the suit for vacant possession, the Respondent pursued an appeal before the Environment and Land Court at Kwale, which was unsuccessful. Undeterred, a further appeal was lodged before the Court of Appeal, where the matter was conclusively determined in respect of the claim for vacant possession. 39. Notwithstanding the protracted litigation, spanning from the trial court in year 2006 to the Court of Appeal last year being 2025, it is imperative to underscore that at no stage was the issue of adverse possession directly and substantially in issue. The appellate courts were confined to the question of vacant possession and the propriety of the trial court's findings in that regard. They neither invited nor rendered a determination on the question of adverse possession as a standalone cause of action. 40. Be that as it may, the Plaintifi/Respondent’s rights, having accrued by virtue of long, uninterrupted, and exclusive possession exceeding the statutory period, remain intact and enforceable. The absence of a formal pleading on adverse possession in the earlier proceedings does not negate the factual and legal reality of such possession; rather, it underscores that the issue has never been substantively adjudicated upon by a court of competent jurisdiction. In the premises, the present proceedings properly invite this Honourable Court to consider and determine, for the first time, the question of adverse possession on its merits, unencumbered by the doctrine of res judicata or any alleged prior determination. The Plaintifi/Respondent’s claim is thus not only competent but firmly grounded in both fact and law. 41. The Learned Counsel relied on the following sole issue for dispositive issue which is whether the present suit for adverse possession is barred by the doctrine of res judicata arising from a prior decision of the Court of Appeal granting vacant possession? 42. On the law of res judicata. The Learned Counsel averred that the Defendant/Applicant filed an application founded on the doctrine of res judicata. With respect, the said application is a misapprehension of both the law and the factual posture of this dispute. The doctrine, though fundamental in ensuring finality in litigation, is not to be invoked as a blunt instrument to defeat a claim that has never been substantively adjudicated. The legal threshold for res judicata was well settled. The provision of Section 7 of the Civil Procedure Act, Cap. 21 requires that the matter in issue must have been directly and substantially in issue in the former suit, between the same parties, and must have been heard andfinally determined by a court of competent jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 10

page 10 of 33

43. The Court of Appeal in the case of:- “Independent Electoral and Boundaries Commission – Versus Maina Kiai & 5 Others” authoritatively held that:“ all elements of res judicata must be satisfied conjunctively, and that failure to meet even one is fatal to the plea. This decision remains the locus classicus on the doctrine in Kenya.” 44. In the present matter, the Defendant/Applicant's plea failed at the very first hurdle. The issue now before this Honourable Court - whether the Plaintifi/Respondent had acquired title by adverse possession-was never directly and substantially in issue in the previous proceedings. The earlier suit, and the entire appellate chain culminating at the Court of Appeal, revolved exclusively around a claim for vacant possession. The courts were called upon to determine whether the Plaintifi/Respondent could be evicted as a trespasser. The cause of action, the relief sought, and the legal questions framed did not encompass a claim for adverse possession. Indeed, the Defendant/Applicant's own grounds of appeal explicitly confirm that adverse possession was not pleaded. They faulted the trial court for introducing that issue. This was a clear and unequivocal admission that the matter was not properly before the court. 45. The Court of Appeal in the case of:- “John Florence Maritime Services Limited & Another – Versus Cabinet Secretary for Transport and Infrastructure & 3 Others” held that:“ ….Res Judicata only applies to issues that were distinctly put in issue and finally determined. Matters that arise incidentally or are not pleaded cannot found a plea of Res Judicata. Further, in Henderson – Versus - Henderson, the court stated that parties are bound to bring forward their whole case; however, this principle does not extend to barring claims that were neither pleaded nor could reasonably have been determined within the scope of the earlier proceedings. In the present case, adverse possession-being a substantive and independent cause of action-was never litigated.” 46. The Supreme Court of Kenya in the case of: “Kenya Commercial Bank Limited – Versus - Muiri Cofiee Estate Limited & Another” cautioned that res judicata must not be applied mechanistically so as to impede the right to be heard, particularly where a party raises a distinct claim that has not previously been adjudicated upon. In the same vein, the Court of Appeal in the case of:- “Uhuru Highway Development Limited – Versus - Central Bank of Kenya & 2 Others” emphasized that the doctrine did not apply where the subsequent suit was founded on a difierent cause of action, even if it related to the same subject matter.The present claim for adverse possession was legally and conceptually distinct from the earlier claim for vacant possession. 47. Additionally, the East African Court of Appeal in the case of:- “Kamunye & Others – Versus - Pioneer General Assurance Society Limited” held that for res judicata to apply, the issue must had been directly and substantially in issue and not merely collateral or incidental. This principle squarely applied herein, as adverse possession was neither central nor determinative in the previous litigation.Therefore, it was beyond peradventure that the issue of adverse possession had never been heard and finally determined by any court. The prior proceedings conclusively dealt only with the question of vacant possession and the rights of a registered proprietor vis-à-vis an alleged trespasser. 48. In the premises, the Defendant/Applicant’s plea of res judicata was not only legally unsustainable but was a transparent attempt to foreclose a legitimate claim without a hearing. This Honourable Court is urged, in fidelity to both statute and binding precedent, to dismiss the objection with costs and allow the matter to proceed to full hearing on its merits https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 11

page 11 of 33

49. On whether adverse possession was directly and substantially in issue. The Learned Counsel averred that the previous proceedings culminating in the Court of Appeal decision concerned title and/or vacant possession. The issue of adverse possession was neither pleaded, canvassed, nor determined. The Court of Appeal in the case of:- “Wambugu – Versus - Njuguna” clearly distinguished adverse possession as a claim dependent on possession and limitation, not merely title. Further, in the case of:“Kweyu – Versus - Omuto”, the court held that adverse possession is a statutory right accruing upon lapse of time, independent of earlier proceedings unless specifically litigated. 50. The present claim is brought under of Sections 7 and 38 of the Limitation of Actions Act, Cap. 22. The law provides that after 12 years of adverse possession, the registered owner’s title is extinguished and The possessor acquired enforceable rights. In the case of:- “Mtana Lewa – Versus - Kahindi Ngala Mwagandi”, the Court stated adverse possession is essentially a situation where a person takes possession of land and asserts rights over it, and the owner fails to assert his rights within the statutory period. Thus the Applicant’s claim arises by operation of law it is not dependent on prior litigation. 51. On the efiect of the Court of Appeal Judgment. The Learned Counsel asserted that the Respondent has placed heavy reliance on the finality of the Court of Appeal decision. While the Applicant conceded that decisions of the Court of Appeal were binding, it was submitted that finality applied only to matters actually determined. The Court of Appeal decision: “ Determined ownership / entitlement to vacant possession Did not determine limitation rights or adverse possession.” 52. On the constitutional imperative. The Learned Counsel submitted that the provision of Article 50 (1) of the Constitution of Kenya 2010 guarantees the right to a fair hearing. 53. On striking out of the Applicant’s claim. The Learned Counsel stated that it would: 54. a. Deny the Applicant an opportunity to ventilate a legitimate claim b. Elevate technicalities over substantive justice The Learned Counsel relied on the provision of Article 159 (2) (d) of the Constitution 2010, which further obligates Courts to: Administer justice without undue regard to procedural technicalities. 55. On the abuse of Court process. The Learned Counsel submitted that the Defendant/Applicant’s Application was an attempt to shut out a valid claim and avoid adjudication on merits. This amounts to an abuse of the Court process. 56. In conclusion, the learned Counsel submitted that:- 57. a. The doctrine of res judicata does not apply; b. The cause of action is distinct and statutory; c. The Application is devoid of merit. The Plaintifi/ Respondent prayed that: a. The Application be dismissed with costs. b. The suit proceeds to hearing on merits. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 12

page 12 of 33

c. Any other orders this Honourable Court may deem just. C. The Written Submissions by the 1st to 4th Defendant in respect of the Notice of Motion application dated 4th February, 2026 and Notice of Motion application dated 9th December, 2025 58. The 1st and 4th Defendant through the Law firm of Messrs. B Kagunyi & Company Advocates filed their written submissions dated 9th April, 2026. Mr. Kagunyi Advocate commenced his submissions by informing the Court that presently, there were two Application before this Honourable Court for hearing and determination. The first one was dated 4th February 2026 by the 1st, 2nd, 3rd and 4th Defendants. It sought the above stated orders. 59. In support of the Application, the Defendants rely on the grounds set out therein and the Afidavit of Karen Kanjiru Kirera, sworn on 4th February 2026. In opposition to the Application, the Plaintifi filed a Replying Afidavit sworn on 6th February 2026, and a Further Afidavit sworn on 26th February 2026. Additionally, the second application was by the Plaintifi dated 9th December 2025. It sought the above stated reliefs. The said application was supported by the Plaintifi’s Afidavit, sworn on 9th December 2025. 60. According to the Learned Counsel, the brief facts were that the 1st, 2nd, 3rd and 4th Defendants were the registered proprietors of the properties known as Kwale/Diani/529, 530, 531, 532, and 533, which properties were formed after the sub - division of the large property formerly known as Kwale/ Diani/295. On or about 11th February, 1986, the Ereri M’Chabare (now deceased), the father of the Defendants herein, was issued with “A Certificate of Outright Purchase’ of Plot no. 295 by the Ministry of Lands, Settlement and Physical Planning for an agreement purchase price of a sum of Kenya Shillings Five Hundred (Kshs. 500/=). 61. The aforementioned was duly issued with a title deed in respect of the property known as Kwale/ Diani/295 on 26th February 1993, measuring 2.0 Hectares. Thereafter, the deceased sub - divided the property, forming Kwale/Diani/529, 530, 531, 532, and 533 title deeds, being issued. The Deceased transferred the properties as follows; a. Plots No. Kwale/Diani/529 & 530 were transferred to Lloyd Mugo Josphat, the 1st Defendant herein. b. Plot No. Kwale/Diani/531 was transferred to Karen Kanjiru Kirera, the 2nd Defendant herein. c. Plot No. Kwale/Diani/532 was transferred to Eutychus Kithinji Josphat, whose estate is represented by the 4th Defendant herein. d. Plot No. Kwale/Diani/533 was transferred to Gerald J. Murunge, whose estate is represented by the 3rd Defendant 62. The Plaintifi and her husband entered into the property and trespassed, which they declined to vacate despite repeated requests and agreement to vacate, thus resulting in the filing of case:-“Kwale CMCC No. 324 of 2006, Llyod Mugo Josphat & 3 others – Versus - Mwanahamisi Masudi”. Vide the Judgment entered on 26th November 2021, the trial court (P.W. Mwangi, PM) dismissed the Appellants’ suit and declared the Respondent as the rightful owner of the suit properties. This resulted in the Defendants filing the Kwale “ELC Appeal No. E003 of 2021 Llyod Mugo Josphat & 3 others – Versus - Mwanahamisi Masudi”. 63. In its judgment, the ELC (A. E. Dena, J) court issued its Judgment on 20th February 2023, dismissing the Appeal with costs to the Respondents, further upholding the magistrate’s court's decision and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 13

page 13 of 33

further ordering the Kwale Lands Registrar to register the suit properties in the Respondent’s name. Accordingly, the Defendants herein were dissatisfied and proceeded to file the case of:- “Mombasa Court of Appeal Civil Appeal No E054 of 2023 Llyod Mugo Josphat & 3 others – Versus Mwanahamisi Masudi”, to which the court rendered its decision on 5th December, 2025, (Murgor JA, Laibuta JA & Ngenye-Macharia JA). The Court of Appeal, in its decision, proceeded to allow the appeal and set aside the decision of the ELC.It was on the above premises, through material nondisclosure of facts, that the Plaintifi proceeded to file the present suit seeking to challenge the decision and outcome of the Court of Appeal before this Honourable Court. 64. From the pleadings filed by the parties, the facts arising, and the law, the Learned Counsel submitted on the following six (6) issues. Firstly whether the Plaintifi had failed to disclose pertinent facts before this Honourable Court. The Learned Counsel submitted on material non – disclosure that from the onset, the Plaintifi herein is guilty of being before this Honourable Court with unclean hands, material non-disclosure and mischief, with the sole intent to ‘steal a march’ in the matter.As was noted hereinabove, the Counsel averred that in the first instance, the Plaintifi had deliberately failed to disclose previous proceedings and their outcomes to this Honourable Court.The Plaintifi had deliberately failed to disclose pertinent facts about the subject property, to wit, disclosure of other court proceedings between the same parties over the same subject matter. 65. The Learned Counsel informed the Court that at all material times, the issues before this Honourable Court had been the subject of other pending proceedings, as follows; 66. a. Mombasa Court of Appeal Civil Appeal No E054 of 2023 Llyod Mugo Josphat & 3 others – Versus - Mwanahamisi Masudi b. Kwale ELC Appeal No. E003 of 2021 Llyod Mugo Josphat & 3 others – Versus - Mwanahamisi Masudi c. Kwale CMCC No. 324 of 2006 Llyod Mugo Josphat & 3 others – Versus - Mwanahamisi Masudi To buttress on this point, they were guided by the case of:- “Halima Haji Sarah – Versus - Multiple Haurliers (E.A) Limited & another [2022] KEELC 912 (KLR)”, wherein Wabwoto, J, whilst addressing the issue of material non-disclosure, relied on the court of appeal case of “Bahadurali Ebrahim Shamji – Versus - Al Noor Jamal & 2 Others Civil Appeal No. 210 of 1997”, as quoted as follows; “ Non-disclosure of material facts was discussed in Bahadurali Ebrahim Shamji – Versus - Al Noor Jamal & 2 Others Civil Appeal No. 210 of 1997, where the Court of Appeal stated as follows: “ It is perfectly well-settled that a person who makes an ex parte application to the court – that is to say, in the absence of the person who will be afiected by that which the court is asked to do – is under Page 4 of 19 an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make the fullest possible disclosure then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained. It has been for many years the rule of court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement, he should make a full and fair disclosure of all the material facts – facts, not law. He must not misstate the law if https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 14

page 14 of 33

he can help it – the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement…In considering whether or not there has been relevant non-disclosure and what consequence the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to include; (i) The duty of the applicant is to make full and fair disclosure of the material facts. (ii) The material facts are those which it is material for the judge to know in dealing with the application made; materiality is to be decided by the court and not the assessment of the applicant or his legal advisers. (iii) The applicant must make proper inquiries before making the application. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made suficient inquiries. (iv) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including a. the nature of the case which the applicant is making when he makes the application, b. the order for which the application is made and the probable efiect of the order on the defendant, and Page 5 of 19 c. the degree of legitimate urgency and the time available for the making of the inquiries. d. If material non-disclosure is established the court will be astute to ensure that a plaintifi who obtains an ex parte injunction without full disclosure is deprived of any advantage by that breach of duty. (v) Whether the fact not disclosed is of suficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to issues which were to be decided by the judge in the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to consider the case being presented. (vi) Finally, it is not every omission that the injunction will be automatically discharged. A locus pentitentiae (chance of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 15

page 15 of 33

repentance) may sometimes be afiorded. The Court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex - parte order, nevertheless to make a new order on terms: when the whole of the facts, including that of the original non-disclosure, are before it, the court may well grant such a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed…In the instant case the so-called material facts repeatedly alleged to have been either suppressed, concealed or not disclosed by the respondents are only two pending applications which were never heard nor determined by the superior court. It is submitted that the court was consequently misled but the court cannot understand how this could be so…It is accepted that in cases of ex parte proceedings there must be full and frank disclosure to the court of all material facts known to the applicant but in the instant case everything was in the court record and was available to the learned judge for perusal. There was no deliberate concealment on the part of the respondents. Both the applications were on record and the notice of discontinuance accompanying the latest application clearly showed what applications were being discontinued and they were not in any sense misleading. Granted that the Respondents did not inform the learned Judge of the pending applications, the issue is: were the material facts those, which it was material for the learned judge to know in dealing with the application as, made? The answer to this must be in the negative since the Learned Judge was satisfied that the pending applications did not preclude him from doing justice to the parties especially in that the applications and the suit had not been heard on merit. He was also concerned that injury to the Respondents, which could not be compensated for damages, could be occasioned by a delay. This mode of approach to the matter before him cannot be faulted”. 67. Thus, their humble submissions was that the material non-disclosure before this Honourable Court by the Plaintifi was not innocent. To them, the facts of other proceedings were well known to the Plaintifi. They had been admitted before this Honourable Court in their responses. The Counsel placed further reliance on the case of “Owners of the Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment)”, where the court held:“ The same principle was dealt with in the case of Brink’s Mat Limited – Versus - Elcombe [1988] 3 All ER 188. It is not necessary to set the relevant facts here but I would like to refer to an important passage in the judgment of Ralph Gibson LJ, at page 192 (f) where he said: “ In considering whether there has been relevant non- disclosure and what consequence the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to me to include the following. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 16

page 16 of 33

(i) the duty of the applicant is to make a full and fair disclosure of the material facts. (ii) The material facts are those which it is material for the Judge to know in dealing with the application as made; materiality is to be decided by the Court and not by the assessment of the applicant or his legal advisers. (iii) The applicant must make proper inquiries before making the application. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had such inquiries. (iv) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application (b) the order for which application is made and the probable efiect of the order on the Defendant, and (c)the degree of legitimate urgency and the time available for the making of inquiries. (v) if material non-disclosure is established the court will be astute to ensure that a Plaintifi who obtains an ex - parte injunction without full disclosure is deprived of any advantage he may have derived by that breach of duty. [emphasis made] (vi) Whether the fact not disclosed is of suficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to issues which were to be decided by the judge on the application. The answer to the question whether the non disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented. (vii) Finally, it is not for every omission that the injunction will be automatically discharged. A locus poenitentiae (chance of repentance) may sometimes be afiorded. The court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms: when the whole of the facts, including that of the original non-disclosure, are before it, (the Court) may well grant such a second injunction if the original non disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed.’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 17

page 17 of 33

See Lloyds Bowmaker Limited – Versus - Britannia Arrow Holdings p/c (larens, third party) [1988] 3 All ER 178 at 183 per Glidewell LJ.” 68. Accordingly, they humbly submitted that the Plaintifi, having come before this Honourable Court with unclean hands, the court should find them guilty of material non-disclosure. 69. Secondly, was on whether the Plaintifi’s application ought to be granted. The Learned Counsel submitted that threshold for grant of injunction not met. The Plaintifi had not met the legal threshold for the grant of the injunctive orders sought. They were guided by the case of:- “Kenya Power & Lighting Co. Limited – Versus - Mosiara Trading Company Ltd [2016] KEELC 1285 (KLR)”, wherein the court stated: “ The applicant has sought injunctive orders, which are equitable in nature and which are granted at the discretion of the court. However, the said discretion must be exercised judiciously. See the case of CMC Motors Group Limited and Another – Versus - Evans Kangeche Boro, Civil Appeal NO. 295 of 2007, where the court held that: In granting the injunctory reliefs, the superior court was exercising equitable jurisdiction which is discretionary and the court of Appeal can only interfere with the judicial discretion of the learned Judge, if it is satisfied that the learned Judge did not exercise is discretion Judicially…..” And also in Hasmukh Khetshi Shah – Versus - Tinga Traders ltd, Civil Appeal No.326 of 2002 held that:It must be stated at the outset that the granting of an interim injunction is an exercise of judicial discretion and an appellate. Court will not interfere unless it is shown that the discretion has not been exercised judicially” The orders sought herein being discretion, the Court will have to be guided by the principles laid down in the case of Giella – Versus - Cassman Brown & Co.Ltd 1973 EA 358. These principles are:a) The applicant must establish that he has a prima facie case with probability of success. b) That the applicant will sufier irreparable loss which cannot be adequately compensated in any way or by an award of damages. c) When the court is in doubt, to decide the case on a balance of convenience. Firstly, the applicant has to establish that it has a prima facie case with probability of success. In the case of Mrao Limited – Versus - First American Bank of Kenya and 2 Others (2003) KLR 125, the Court described prima facie case as;A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 18

page 18 of 33

been infringed by the opposite party as to call for an explanation or rebuttal from the later.” 70. In light of the above, and the submissions made herein, they humbly submitted that the Plaintifi had neither demonstrated a prima facie case, nor met the legal threshold as set out in the case of “Giella – Versus -Cassman Brown (Supra)” and was therefore undeserving of the orders sought in the Plaintifi’s application. 71. Thirdly, on the need to set aside the orders of status quo. The Learned Counsel asserted that in light of the above, the only reasonable action to be taken by this Honourable Court was to review and set aside the orders that had been issued on 17th December 2025.Presently, as per the decision of the Court of Appeal, the status quo in the matter ought to be that the Defendants had the right to evict the Plaintifi. However, with the directions of the court presently in place, the Plaintifi obtained a status quo order that injuncted the Defendants with unclean hands. Accordingly, the Defendants sought orders in accordance with the provisions of Order 40, Rule 7 of the Civil Procedure Rules, 2010. 72. They were also guided by the case of “Bahadurali Ebrahim Shamji (Supra)”, where the Court held that: “ A litigant who obtains ex parte relief must not withhold material facts which might infiuence the Court’s decision. If he does, the Court is entitled to discharge the order even if the omitted facts would not have led to a difierent result.” 73. In light of the above, it was not only fair but also just that the Defendants be allowed to evict the Plaintifi and take possession of the property as they were the legal owners of it. 74. According to the Learned Counsel, the Plaintifi had perjured herself. Section 108 of the Penal Code clearly provides that: Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then pending in that proceeding or intended to be raised in that proceeding, is guilty of the misdemeanour termed perjury. 75. In the instant case, it was more than clear that Plaintifi’s averment in paragraph 5 of the Supporting Afidavit dated 9th December, 2025, that she had occupied the property openly without any interruption was a complete and utter lie.The same went for her averments in Paragraphs 6,7, 9, 10, 11, 12, and 14 of the Supporting Afidavit, as the Plaintifi herself was a party to the case of Mombasa Civil Appeal No. E054 of 2023, where the Court in paragraph 18 of the Judgment dated 5th December, 2025, noted that the Plaintifi had signed an agreement dated 30th July, 1993, to vacate the land upon harvesting her maize, but refused to do so, prompting the file a suit in the year 2006. 76. Accordingly, the Plaintifi could not now turn around and claim that her occupation was open and uninterrupted. Further, the Plaintifi’s reliance on what she knew to be false was a clear indication that the Plaintifi’s suit was defective and should therefore be struck out. Therefore, they submitted that the Plaintifi be found to have perjured herself. 77. Fourthly, on whether the Plaintifi’s suit was fatally defective and incurable in law. The Learned Counsel submitted that at all material times, the Plaintifi’s suit lacked a Verifying Afidavit which was a requisite pleading. Thus, to them the entire suit ofiended the provisions of Order 3 Rule 1(1) & Rules 2 (2)(a) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 19

page 19 of 33

as read together with Order 4 Rule 1(2) of the Civil Procedure Rules, 2010 which makes it mandatory of file a Verifying Afidavit that shall be mandatory. Order 3 Rule 2 provides:“ 2. Documents to accompany suit [Order 3, rule 2] All suits filed under rule 1(1), including suits against the government, except small claims, shall be accompanied by— (a) the afidavit referred to under Order 4 rule 1 (2).” (b) Order 4 Rule 1 provides; … (f) (2) An averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the Plaintifi and the Defendant over the same subject matter, and that the cause of action relates to the Plaintifi named in the Plaint. The Plaint shall be accompanied by an afidavit sworn by the Plaintifi verifying the correctness of the averments contained in rule 1(1)(f) above. SUBPARA c. A reading of the above clearly shows that it is mandatory to have a Verifying Afidavit that afirms the correctness of the averments therein and that indeed there are no previous proceedings in any court. 78. Accordingly, the Plaintifi’s failure to comply with the above further exacerbated the fact that the suit was fatally defective, and the true intent of failing to file a verifying afidavit was intended to conceal that the matter was already res judicata. It was noted that the Plaintifi had neither denied their failure nor attempted to remedy it. Accordingly, with no prayer to file it, this Honourable Court could only make a finding that the suit was fatally incompetent. 79. Accordingly, they relied on the case of:- “Latifa Yakub & 4 Others – Versus – Shamshudin M. Kassim [2006] KEHC 1217 (KLR)”, wherein Maraga J (as he then was) stated:“ As regards the failure to file a Verifying Afidavit Mrs. Moolraj submitted that that also makes the suit a nullity. I entirely agree with Mrs. Moolraj. As was stated by Law J (as he then was) in the said case of Pathak – Versus – Mrekwe a suit instituted in the name of a dead person is a nullity. The power conferred by Order 1 Rule 10 of the Civil Procedure Rules to substitute a plaintifi where a suit has been filed in the name of a wrong person can only be exercised where the wrong person was living at the date of instituting the suit and has no application where the wrong person was dead before such date. The suit is also a nullity for failure to file a verification afidavit along with the plaint as required by Order 7 Rule 1 (2). That provision is mandatory and failure to comply with it renders the suit a nullity – see Gwao – Versus – Nairobi City Council [2001] 1 EA 69 (CA). The case of Kizingo Distributors Ltd cited by Mr. Hamza is distinguishable. In that case there was a verification afidavit filed along with the Plaint which, however, turned out to be defective. The court allowed the Plaintifi to file a proper one. In the case of Shashikant C. Patel – Versus – Oriental Commercial Bank Limited, Mombasa HCCC No. 264 of 2005, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 20

page 20 of 33

where there was also a defective afidavit I allowed the Plaintifi to file a proper one. In this case, like in the Gwao case (supra) no verifying afidavit, not even a defective one, was filed at all. The suit is therefore a nullity. This being my view of the matter, I need not bother myself about the validity or otherwise of the afidavit in support of this application which was sworn by counsel. For these reasons I hold that this suit is a nullity and the plaint is therefore incapable of amendment for you cannot amend what in law does not exist. In Auto Garage – Versus Motokov (No 3) [1971] EA 514 at page 519 Spry V.P. stated that “…where the plaint is a nullity there can be no amendment …” Accordingly the plaintifi’s application dated the 14th November 2002 is hereby dismissed with costs.”[Emphasis Added] 82. 83. 80. Similarly, they humbly submitted that this Honourable Court be persuaded by the above jurisprudence and make a finding that this suit was fatally defective and null ab initio. 81. Fifthly, on whether this Honourable Court had jurisdiction to hear and determine this matter, or is barred from hearing the present suit. The Learned Counsel submitted on the issue of res judicata that this Honourable Court lacked jurisdiction to hear and determine these proceedings ab initio by dint of the provision of Sections 7 and 8 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya, as read together with Sections 13 and 19(2) of the Environment and Land Court Act Cap. 8D Laws of Kenya. The provision of Section 7 of the Civil Procedure Act, Cap. 21 expressly provides for the doctrine of res judicata, and the court must afirm that indeed the elements are present in these proceedings, which elements are as follows:a. The suit or issue was directly and substantially in issue in the former suit. b. That former suit was between the same parties or parties under whom they or any of them claim. c. Those parties were litigating under the same title. d. The issue was heard and finally determined in the former suit. e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. At all material times, it was abundantly clear that all elements noted hereinabove apply to the issues for determination before this Honourable Court had been determined. They guided by the case of “Kenya Commercial Bank Limited – Versus - Benjoh Amalgamated Limited (Civil Appeal 107 of 2010) [2017] KECA 98 (KLR) (15 December 2017) (Judgment)”, wherein the Court of Appeal stated: The rule or doctrine of Res Judicata serves the salutary aim of bringing finality to litigation and afiords parties closure and respite from the spectra of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favorable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of Res Judicata thus rest in the public interest for swift, sure and certain justice.” See also William Koros (Legal Personal https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 21

page 21 of 33

Representative of Elijah, C.A. Koross – Versus - Hezekiah Kiptoo Komen & 4 others (2015) eKLR”. 84. Further to the above, they placed reliance on the case of:- “Safaris Unlimited (Africa) Limited – Versus - Muchanga Investments Limited (Environment and Land Case 293 of 2009) [2009] KEHC 1700 (KLR) (23 September 2009) (Ruling)”, wherein Mbogholi - Msagha J stated as follows:“ It is my finding that, that being the case, section 7 of the Civil Procedure Act applies and therefore the Plaintifi cannot at this stage plead and canvass the said issue in this fresh suit. The doctrine of estoppel accordingly also applies. That, in my view, also falls within the cited authority of Mukisa Biscuit in that it disposes ofi the whole suit because that is the substratum of the present suit. I say so because, the levying of distress apart from being a secondary issue, can be pursued by the Plaintifi in a totally difierent action. The next question that arises is whether or not the court can determine this suit at this stage. Again, I find support in the same Civil appeal No.25 of 2002 aforesaid. The learned judges had this to say: A court of law would not be entitled in our view to abdicate its cardinal role of making a determination……. In our view, the often quoted principle that a party should have its day in court should not be taken literally. It should have its day only when there is something to hear. No party should have a right to squander judicial time. Hearing time should be allocated by the court on a need basis and not as a matter of routine. Judicial time is the only resource the courts have at their disposal and its management does positively or adversely afiect the entire system of administration of justice.”[Emphasis Added] 85. 86. As per their submissions hereinabove, they had demonstrated that the matter had been the subject of protracted litigation, which rested on the Judgment of the Court of Appeal. To wit, the court of appeal in “Mombasa Court of Appeal Civil Appeal No E054 of 2023 Llyod Mugo Josphat & 3 others – Versus - Mwanahamisi Masudi (in a sitting of Murgor JA, Laibuta JA, & Ngenye JA)”, which decision was rendered on 5th December 2025, before the filing of this matter, did address the issue of advance possession.The court expressly pronounced itself as follows:a. In respect of whether the Plaintifi was in possession of the property, it is noted by the court at paragraph 27 that “27. In the instant case, the Respondent claimed to have been in occupation of a ‘portion’ of the original plot of land known as Kwale/Diani/295 before sub - division into plot Nos. Kwale/Diani/529, 530, 531, 532, and 533. It is noteworthy that the Respondent did not adduce evidence at the trial to prove, on a balance of probabilities, which of the five sub divisions aforesaid comprised the portion of which she was allegedly in occupation. In efiect, she failed to clearly identify or describe the portion, size and location of the portion allegedly in her possession.” b. In light of the above, it is clear that the court has determined that her claim for adverse possession was fatally fiawed, and again the Plaintifi has again sought to proceed with the same argument of claiming a non-existent property” Lastly they placed reliance on the case of:- “ET – Versus - Attorney General & Another [2012] eKLR”, where the Court held:“Courts must always be vigilant to guard against litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 22

page 22 of 33

is whether the plaintifi in the second suit is trying to bring before the court, in another way and in the form of a new cause of action, a transaction which has already been presented before a court of competent jurisdiction.” 87. From the above, they were of the view that this Honourable Court should not allow the matter to proceed, noting that the same was the subject of other proceedings, which the Plaintifi deliberately concealed to evade the doctrine of res judicata. 88. On whether the suit and application were ripe for striking out. The Learned Counsel averred that the only resolution of the frivolous, scandalous, and vexatious nature of the Plaintifi's suit, this Honourable Court ought to proceed to strike out the pleadings. They were guided by the provisions of Order 2 Rule 15 of the Civil Procedure Rules, 2010. A reading of this provision, its is noted that the suit presently before this Honourable Court ofiended the provision of Rules 15(1) (b), (c) & (d) above. Additionally, for this Honourable Court to attempt to hear and determine this suit, the same would be tantamount to sitting on appeal of a decision of the Court of Appeal, which would inter alia be illegal ab initio for want of jurisdiction, be a waste of judicial resources, and occasion a great embarrassment to the court. To buttress on this point, the Counsel placed reliance on several cases including the case of: “D.T. Dobie & Company Kenya Limited – Versus - Joseph Mbaria Muchina & Another [1980] eKLR” and “Toronken & 5 others – Versus - Nguruman Limited & 10 others; County Government of Narok & another (Interested Parties) (Land Case E034 of 2024) [2025] KEELC 7598 (KLR) (6 November 2025) (Ruling),”, wherein the court delved into the issue of striking out of pleadings based on various grounds being no reasonable cause of action; had no Locus Standi; the suit was barred by limitation of action; was an abuse of the court process, was res judicata; and failed to exhaust the Alternative Disputes Resolutions Mechanism, the court proceeded to strike out the pleadings. 89. Finally, on who should have the costs of this suit and application. The Learned Counsel submitted that this Honourable Court should award costs as set out under the provision of Section 27 of the Civil Procedure Act, Cap. 21, Laws of Kenya. They placed reliance on the proverbial principle that ‘costs follow the event’. This principle was well expounded on in literally works of Kuloba, J. (as he then was); Judicial Hints on Civil Procedure, 2nd Edition, at page 94, where it reads: “ Hints subPARA 151. Court’s Discretion as to Costs Generally Costs are in the unfettered discretion of the court, subject to such conditions and limitation as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reasons to order otherwise: Kneller, J (as he then was) in Chemilabs – Versus - Lalji Bhimji and Shmji Jinabhai Patel, High Court of Kenya at Nairobi, Civil Case number 1062 of 1973, (3 December 1976, and Crabbe, JA in Kholi and others – Versus - Bachulal Popatlal [1964] EA 219 at 229, (16 March 1964)……” 90. They were also guided by the case of “Chuka Civil Appeal No. 3 of 2020; Southern Star Sacco Limited – Versus - Vanancio Ntwiga [2021] eKLR”, where the court in awarding costs held as follows; “ The rule is that costs must follow the event and can only be disregarded where the court has a good reason and has stated that good reason in her ruling or judgment. A successful party is entitled to the fruits of his labour. And one of these fruits is the costs of prosecuting the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 23

page 23 of 33

The rule of the game is that an award of costs follows the event, and a successful litigant will be awarded costs so as to recoup the costs he has undergone in the course of the litigation...” 91. In light of the above, they humbly submitted that the Defendants should be awarded costs of both applications and the suit. In view of the foregoing, it was abundantly clear that the Plaintifi’s application dated 9th December, 2025 was unmerited and deserving to be dismissed with costs being awarded to the Defendants, whilst the Defendants application dated 4th February, 2026 was merited and the orders sought herein be granted. VI. Analysis & Determination. 92. I have carefully read and considered the pleadings filed by both the Plaintifi/Respondent and the Defendants/Applicants, the afidavits sworn in support and opposition, the written submissions, the myriad authorities cited, and the relevant provisions of the Constitution of Kenya, 2010 and the governing statutes. 93. In order to arrive at a just, equitable and reasoned determination, this Honourable Court has framed the following four ( 4 ) issues for consideration:a. Whether the Plaintifi’s claim for land adverse possession was barred by the doctrine of Res Judicata under the provision of Section 7 of the Civil Procedure Act, Cap. 21. b. Whether the Notice of Motion application dated 9th December, 2025 meets threshold required of a temporary injunction under the provision of Order 40 Rules 1 of the Civil Procedures Rules, 2010. c. Whether the Defendants’ application dated 4th February 2026, premised on allegations of material non‑disclosure, perjury, and procedural defects and striking out the entire application and suit, is merited. d. Who should bear the costs of the two competing applications. Issue No. a). Whether the Plaintifi ’s claim for adverse possession was barred by the doctrine of Res Judicata under the provision of Section 7 of the Civil Procedure Act, Cap. 21. 94. Under this sub‑title, the Honourable Court shall examine whether the Plaintifi’s Originating Summons for land adverse possession is defeated by “the Doctrine of Res Judicata” as codified under the provision of Section 7 of the Civil Procedure Act, Cap. 21 Laws of Kenya. Section 7 provides: “ 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.” 95. The elements of res judicata, as restated in the case of:- “Independent Electoral and Boundaries Commission – Versus - Maina Kiai & 5 Others [Supra]”, are conjunctive: a. The matter must have been directly and substantially in issue in the former suit. b. The former suit must have been between the same parties or parties claiming under them. c. The parties must have litigated under the same title. d. The issue must have been heard and finally determined. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 24

page 24 of 33

e. 96. The court that determined the matter must have been competent. Additionally, in the case of:- “Communications Commission of Kenya & 5 others – Versus - Royal Media Services Limited & 5 others [2014] KESC 53 (KLR)”, the Supreme Court held as follows: “ (317) The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings….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...” 97. Notably, the Supreme Court also held as follows in the case of:- “John Florence Maritime Services Limited & Another – Versus - Cabinet Secretary for Transport and Infrastructure & 3 Others [Supra]”; “ 59. For res judicata to be invoked in a civil matter the following elements must be demonstrated: a. There is a former Judgment or order which was final; b. The Judgment or order was on merit; c. The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d. There must be between the first and the second action identical parties, subject matter and cause of action.” 98. Failure to satisfy even one element is fatal to the plea. The Defendants argued that the Plaintifi’s claim is barred because the subject property and parties are the same as those in the Civil cases of:- “Kwale CMCC No. 324 of 2006, Kwale ELC Appeal No. E003 of 2021, and Mombasa Court of Appeal Civil Appeal No. E054 of 2023. They relied on the case of:- “Kenya Commercial Bank Limited – Versus Benjoh Amalgamated Limited [2017] KECA 98”, where the Court of Appeal emphasized finality in litigation and the need to protect parties from endless suits. 99. The Plaintifi countered that while the subject matter was the same, the cause of action in the earlier suits was vacant possession, not adverse possession. She relied on “John Florence Maritime Services Limited (Supra]”, which held that res judicata applies only to issues distinctly put in issue and finally determined. Indeed, the record graphically shows that the trial court and appellate courts only exclusively addressed whether the Plaintifi was a trespasser liable to eviction. Certainly, the issue of land adverse possession was neither pleaded, framed nor determined by the said respectable Courts. The Court of Appeal itself noted that the Plaintifi had failed to identify the specific portion allegedly occupied, but did not render a substantive determination on the doctrine of land adverse possession. 100. With regard to the facts. Undisputably, while the parties and property are the same, evidently the cause of action in the present suit being of a claim of adverse possession—was never directly and substantially in issue in the prior litigation. The earlier suits revolved around vacant possession and registered ownership. Adverse possession, being a statutory claim under the provision of Sections 7 and 38 of the Limitation of Actions Act, Cap. 22 requires specific pleading and proof, which was absent in the earlier proceedings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 25

page 25 of 33

101. Accordingly, the Honourable Court strongly finds that the Plaintifi’s claim for land adverse possession is not barred by the Doctrine of Res Judicata under the provision Section 7 of the Civil Procedure Act, Cap. Issue No. b). Whether the Notice of Motion dated 9th December, 2025 meets threshold required of a temporary injunction under the provision of Order 40 Rules 1 of the Civil Procedures Rules, 2010. 102. Under this sub – title, the main issue here is whether the Plaintifi is entitled to be granted the relief of an interlocutory injunction. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law. Which provides as follows: Order 40, Rule 1 Where in any suit it is proved by afidavit or otherwise— 103. 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. Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of “Giella – Versus - Cassman Brown & Co Limited (1973) EA 358”, where it was stated: “ First an applicant must show a prima facie 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 be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 104. The three conditions set out in “Giella (supra)”, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR”: -, “ These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not suficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will sufier, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 26

page 26 of 33

is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”. 105. In dealing with the first condition of prima facie case, the Honorable Court guided by the definition melted down in the famous case “MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125” of: -, “ So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would 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” 106. As the Court has previously observed in this ruling, the Plaintifi and the Defendants were neighbours well known to each other. The Plaintifi entered upon the suit property in or about the year 1974 and established her homestead thereon. Over the years, she constructed residential structures, cultivated perennial crops such as mangoes, coconuts, and cashew nuts and buried her kin on the suit land—acts that are consistent with permanent settlement and assertion of proprietary rights. The Plaintifi’s occupation of the land was open, continuous, exclusive, and without interruption for a period exceeding twelve (12) years. Despite repeated attempts by the Defendants to assert ownership, including suits for vacant possession, the Plaintifi remained in possession and continued to utilize the property as her home and source of livelihood. 107. The Plaintifi’s claim is anchored on the provision of Sections 7 and 38 of the Limitation of Actions Act, Cap. 22 which extinguishes the registered owner’s title after twelve years of adverse possession and vest enforceable rights in the possessor. The Plaintifi has therefore demonstrated that her occupation meets the statutory requirements for determination under an adverse possession claim but an opportune moment. 108. The Defendants, on the other hand, have sought to disturb this settled occupation by instituting proceedings for eviction and by alleging concealment of facts. However, the Plaintifi has shown that adverse possession was never pleaded or determined in the earlier suits, which revolved solely around vacant possession. 109. In the case of “Mbuthia – Versus - Jimba credit Corporation Ltd 988 KLR 1”, the court held that; “ In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.” 110. Similarly, in the case of “Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Ltd” the court held that; “ In an interlocutory application to determine the very issues which will be canvassed at the trial with finality All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.” 111. In the present case, and on the material presented, a tribunal properly directing itself would conclude that the Plaintifi has demonstrated a right that has apparently been infringed by the Defendants’ attempts to interfere with her settled occupation. Regarding this first condition though, the Plaintifis have demonstrated a prima facie case with a probability of successat the trial as enunciated in the case https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 27

page 27 of 33

of “Giella -Versus - Cassman Brown & Co. Ltd (Supra)” warranting the protection of interlocutory injunctive relief to preserve the substratum of the suit until final determination. 112. The court has further considered the annextures on record against the second principle for the grant of an injunction, that is, whether the Plaintifi might sufier irreparable injury which cannot be adequately compensated by an award of monetary damages. With regards to the second limb of the Court of Appeal in “Nguruman Limited (Supra)”, held that:“ On the second factor, that the applicant must establish that he “might otherwise” sufier irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 113. On the issue whether the Applicant will sufier irreparable harm which cannot be adequately compensated by an award of damages, the Applicant must demonstrate that it is a harm that cannot be quantified in monetary terms or cannot be cured. The Plaintifi claims to have been in occupation of the suit property since the year 1974, having established her homestead, cultivated perennial crops, and buried family members on the land. Eviction or interference with this occupation would not only destroy her residence and livelihood but also desecrate graves of kin—a harm that monetary compensation cannot adequately remedy. The risk of alienation is real and imminent, as the Defendants have previously attempted to evict her and have instituted proceedings for vacant possession. If injunctive relief is denied, the substratum of the suit will be irreversibly lost, rendering the eventual determination nugatory. 114. The judicial decision of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (2018) eKLR” provides an explanation for what is meant by irreparable injury and it states; “ Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself suficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” 115. On the facts, the Plaintifi has demonstrated that her occupation of the suit property is deeply rooted in residence, livelihood, and family heritage. Eviction or alienation would cause harm that is actual, substantial, and incapable of adequate monetary compensation. Accordingly, the Honourable Court finds that the Plaintifi has satisfied the second limb of the “Giella – Versus - Cassman Brown test (Supra)” by proving irreparable injury. 116. Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in her favour. In the case of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (Supra)” which defined the concept of balance of convenience as: “ The meaning of balance of convenience will favour of the Plaintifi' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintifis, the inconvenience https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 28

page 28 of 33

caused to the Plaintifi would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintifis to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintifi who will sufier. In other words, the Plaintifi has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”. 117. In the case of:- “Paul Gitonga Wanjau – Versus - Gathuthis Tea Factor Company Limited & 2 others (2016) eKLR”, the court dealing with the issue of balance of convenience expressed itself thus:“ Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would sufier if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will sufier the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may infiuence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.” 118. The Plaintifi holds having settled and in occupation of the suit property for over five decades. That she has established her homestead, cultivated perennial crops, and buried family members thereon. The Defendants, though registered proprietors, seek to disturb this occupation by eviction and alienation. 119. If the injunction is denied and the Plaintifi ultimately succeeds at trial, the inconvenience and harm she would sufier—loss of home, livelihood, and desecration of graves—would be far greater than the inconvenience to the Defendants if the injunction is granted but the suit is dismissed. Land, as recognized in the case of “Milly Glass Works Limited – Versus - Kenya Railways Corporation [2026] KEELC 2248”, has a unique character, and its alienation cannot be adequately compensated by damages. The comparative mischief from withholding the injunction is greater than that which may arise from granting it. The Plaintifi’s occupation is longstanding and deeply rooted, while the Defendants’ rights as registered proprietors can be vindicated at trial if they succeed. 120. Accordingly, the Honourable Court finds that the balance of convenience tilts in favour of the Plaintifi, and preservation of the status quo through injunctive relief is the lower risk of injustice awaiting the full trial. The decision of “Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR” where the learned judge ofiered further elaboration on what is meant by “balance of convenience” and stated; “ The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.” 121. The balance of convenience lies with the Plaintifi in this case. Bearing this in mind, I am convinced that there is a lower risk in granting orders of temporary injunction than not granting him, as I wait to hear the suit on its merits. This is especially so because I have not had the opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 29

page 29 of 33

to the claim of the Applicant and it will be in the interest of both the Applicant and the Respondents that the suit property is preserved until the hearing and determination of the suit. 122. In the case of:- “Robert Mugo wa Karanja – Versus - Ecobank (Kenya) Limited & Another [2019) eKLR” where the court in deciding on an injunction application stated:“ circumstances for consideration before granting a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...” 123. From the afore - going facts, therefore, I am convinced that if orders of temporary injunction are not granted in this suit, the property in dispute might be in danger of being dealt in the manner set out in the application and apprehended by the Plaintifi/Applicant. Thus, I strongly find that the Plaintifi has met the criteria for grant of orders of temporary injunction. Issue No. c). Whether the Defendants’ application dated 4th February 2026, premised on allegations of material non‑disclosure, perjury, procedural defects and striking out the application and the entire suit is merited 124. Under this sub‑title, the Honourable Court shall examine whether the Defendants have demonstrated suficient grounds to warrant striking out the Plaintifi’s suit on account of material non‑disclosure, perjury, and procedural defects.The Defendants argued that the Plaintifi deliberately failed to disclose the existence and outcome of prior litigation, including Kwale CMCC No. 324 of 2006, Kwale ELC Appeal No. E003 of 2021, and Mombasa Court of Appeal Civil Appeal No. E054 of 2023. They relied on “Bahadurali Ebrahim Shamji – Versus - Al Noor Jamal & 2 Others [Supra]”, where the Court held that a litigant who obtains ex parte relief must not withhold material facts. 125. The Plaintifi, however, clarified that while previous litigation existed, it concerned vacant possession and registered ownership, not adverse possession. She maintained that adverse possession was never pleaded or determined in those proceedings. In the case of:- “John Florence Maritime Services Limited (Supra]”, the Court of Appeal held that res judicata applies only to issues distinctly put in issue and finally determined. Thus, non‑disclosure of collateral matters does not automatically bar a fresh statutory claim. 126. On the facts, the Court reiterates and holds that the Plaintifi’s omission was not material in the sense contemplated by law, as adverse possession was never adjudicated. 127. On the allegation of perjury, the Defendants alleged that the Plaintifi perjured herself by swearing that her occupation was uninterrupted, despite evidence of prior suits and agreements to vacate. The cited provision of Section 108 of the Penal Code, Cap. 63 by the Respondent criminalizes knowingly giving false testimony in judicial proceedings. 128. However, perjury is a criminal ofience requiring proof beyond reasonable doubt in separate proceedings. This Court, sitting in its civil jurisdiction, cannot summarily determine criminal liability at interlocutory stage. As held in the case of:- “Scope Telematics International Sales Limited – Versus Stoic Company Limited [2017] KECA 545”, procedural defects or allegations of dishonesty must be addressed within the proper statutory framework. Accordingly, the allegation of perjury cannot form a basis for striking out the suit at this stage. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 30

page 30 of 33

129. On the procedural defects as clearly pointed out by the Respondent’s Counsel. Specifically, the Counsel argued that the suit was fatally defective for want of a Verifying Afidavit, citing “Latifa Yakub & 4 Others – Versus - Shamshudin M. Kassam [2006] KEHC 1217 (KLR)”. While the provision of Order 4 Rule 1(2) of the Civil Procedure Rules, 2010 requires a verifying afidavit, courts have consistently held that defects in such afidavits are not fatal but curable. This legal position has been supported by a myriad of High Court decisions and precedents whereby this Court will not want to re – invent the wheel. For instance, in the case of:- “Shashikant C. Patel – Versus - Oriental Commercial Bank Ltd [2005] eKLR”, the Court allowed the Plaintifi to file a proper afidavit to cure the defect. 130. Guided by the provision of Article 159(2)(d) of the Constitution, which obligates courts to administer justice without undue regard to procedural technicalities, this Court finds that the absence of a verifying afidavit does not render the suit a nullity. 131. On striking out of the application and the entire suit. Like the Counsel for the Respondent has correctly held, this were guided by the provisions of Order 2 Rule 15 of the Civil Procedure Rules, 2010 which provides that:“ 15. Striking out pleadings [Order 2, rule 15] (1) 132. At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— (a) it discloses no reasonable cause of action or defence in law; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under subrule (1)(a) but the application shall state concisely the grounds on which it is made. (3) So far as applicable, this rule shall apply to an originating summons and a Petition.” Ironically, the Learned Counsel for the Respondent seem to be conceding that striking out of pleadings is a draconian action. They placed reliance on the case of “D.T. Dobie & Company Kenya Limited (Supra), wherein the Court stated that:“ No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 31

page 31 of 33

133. Further, they were also cited the case of “Toronken & 5 others – Versus - Nguruman Limited & 10 others; County Government of Narok & another (Interested Parties) (Supra). I need say no more on striking out of pleadings based on the above fundamental legal parameters and authoritative precedents. 134. On totality of the evidence and authority, the alleged non - disclosure did not relate to adverse possession, which is the distinct cause of action now before the Court. Allegations of perjury are criminal in nature and cannot be summarily determined in these civil proceedings. Procedural defects such as absence of a verifying afidavit are curable and do not justify striking out the suit. 135. Accordingly, the Honourable Court finds that the Defendants’ application dated 4th February 2026 is not merited and is hereby dismissed. Issue No. d). Who should bear the costs of the two competing applications. 136. Under this sub‑title, the Honourable Court shall examine the question of costs arising from the Plaintifi’s application dated 9th December, 2025 and the Defendants’ application dated 4th February, 2026. It is now well established that the issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings. See the decisions of Supreme Court “Jasbir Rai Singh – Versus - Tarchalan Singh (2014) eKLR” and Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited, (2014) eKLR”. 137. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 138. The Plaintifi’s application for interlocutory injunction has succeeded, having met the threshold under “Giella – Versus - Cassman Brown (Supra)”. The Defendants’ application premised on res judicata, material non‑disclosure, perjury, and procedural defects has been found to be unmerited and dismissed. 139. Given that the Plaintifi has succeeded in her application while the Defendants have failed in theirs, the logical application of Section 27(1) is that the Defendants should bear the costs of their unsuccessful application. As for the Plaintifi’s successful application, costs shall be in the cause, meaning they will abide the outcome of the main suit. This ensures fairness and avoids prejudging the substantive claim. 140. The Honourable Court therefore finds that the Defendants shall bear the costs of their application dated 4th February, 2026 and the costs of the Plaintifi’s application dated 9th December, 2025 shall be in the cause. VII. Conclusion & Disposition 141. In long analysis, the Honourable Court has carefully considered and weighed the confiicting parties’ interests as regards the doctrine of res judicata, the threshold for interlocutory injunctions under “Giella – Versus - Cassman Brown [Supra]”, the principles of irreparable harm and balance of convenience, and the statutory requirements under Order 40 Rule 1 of the Civil Procedure Rules, 2010. Ultimately, in view of the foregoing detailed and expansive analysis of the two competing applications, this Court arrives at the following decision and makes the following orders:a. That the Notice of Motion application dated 4th February 2026 by the Defendants be and is hereby found to be unmerited and is accordingly dismissed with costs to the Plaintifi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 32

page 32 of 33

b. That the Notice of Motion application dated 9th December 2025 by the Plaintifi be and is hereby found to have merit and is accordingly allowed. c. That an order of temporary injunction be and is hereby issued restraining the Defendants, their servants, agents, or any persons acting under their instructions from evicting, alienating, transferring, leasing, or otherwise interfering with the parcel of land known as Land Reference Numbers Kwale/Diani/295 and its sub - divisions, pending the hearing and determination of the substantive suit for adverse possession or until further orders of this Court. d. That an order of inhibition under the provision of Section 68 of the Land Registration Act, No. 3 of 2012 be and is hereby issued against the suit property and its sub - divisions, prohibiting any dealings whatsoever until the suit is heard and determined. e. That the Oficer Commanding Station (OCS) Diani Police Station shall ensure compliance with the injunctive and inhibition orders herein and maintain peace on the suit property. f. That for expediency sake, there shall be a mention for purposes of conducting a Pre – Trial Conference on 27th July, 2026. There shall be hearing on 27th October, 2026 preferably through Physical means. g. That the costs of the Defendants’ application dated 4th February 2026 shall be awarded to the Plaintifis to be borne by the Defendants. The costs of the Plaintifi’s application dated 9th December 2025 shall be in the cause. It is so ordered accordingly. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 30TH DAY OF APRIL, 2026. ………………………………… HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. Mr. Mwanjama Advocate holding brief for Mr. Mbwiza Rashid Advocate for the Plaintifi. c. No appearance for the Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30 33

page 33 of 33