Mutwiwa v Mutindimi (Administrator of the Estate of Mutindimu Kitemu) & another (Enviromental and Land Originating Summons E0035 of 2025) [2026] KEELC 3346 (KLR)

3. The motion is based on four (4) grounds and is supported by an afidavit of the Applicant dated 21-10-2025. The gist of the grounds and the afidavit is as follows. Firstly, the Applicant has been in possession of L.R. No. Kakuzi/Ithanga/Gituamba Block 1/747, suit land, for more than 20 years. Secondly, on 30-9-2025, she received an illegal notice from the 1st Defendant to vacate the suit land. Thirdly, having occupied the suit land for over 20 years, she is entitled to be declared the owner thereof through the doctrine of adverse possession. Finally, if the Applicant were to be evicted from the suit land, her claim to it would be rendered nugatory. 4. The motion is opposed by the Respondent. He and his wife Emily Mbinya Kilonzo have sworn two replying afidavits both of which are dated 24-11-2025. They respond as follows. One, the suit land belongs to Zedekiah Mutindimi Kitemu, deceased, who is 1st the Respondent’s father. Two, the Applicant has been on the suit land but with the permission and consent of the 1st Respondent. The reason why she occupied the land was to protect it from land grabbing which is prevalent in the area and the 1st Respondent stays in Kangundo which is far from the suit land. The Applicant’s occupation has been since the year 2018. Three, the reason why the Applicant was allowed to occupy the suit land is that she is a first cousin to the 1st Respondents wife, Emily Mbinya. Four, the Applicant has not planted any trees on the suit land and those trees in the annexed photograph are taken from a neighbour’s land. Five, in the year 2024, the 1st Respondent informed the Applicant that he wished to sell the suit land. This is when she hatched the idea of grabbing the 1st Respondent’s land. 5. Counsel for the parties filed written submissions dated 5-2-2026 and 9-4-2026 respectively. The issues identified are as follows. 6. i. Whether the Applicant has established a prima facie case with a probability of success. ii. Whether the Applicant will sufier irreparable loss if the order sought is not issued. iii. In whose favour does the balance of convenience tilt? Having carefully considered the motion in its entirety, I find as follows. Regarding the first issue, I find that the Applicant has not established a prima facie case with a probability of success. Apart from her eight paragraph afidavit and a photograph showing trees, the Applicant has nothing else to prove occupation of the land for 20 years. Not only is her occupation of the land disputed but it is deposed that the trees in the photograph are in a neighbour’s land. There is no supplementary afidavit to counter this credible deposition by the 1st Respondent. After weighing the Applicant’s afidavit against the two by the 1st Respondent, it is highly doubtful if the Applicant occupied the suit land without the permission of the 1st Respondent. The deposition by the 1st Respondent and his wife heavily outweighs the deposition by the Applicant. 7. Having failed to prove a prima facie case with a probability of success, it is my finding too that the Applicant does not stand to sufier irreparable loss. As already held in paragraph 6 above, the Applicant has not shown what property she has on the suit land. Having no house or crops on the suit land, the Applicant has nothing to lose if she is evicted from the land. 8. Finally, the Court would only look at the balance of convenience if the other two prerequisites to the grant of the order of injunction had not been proved or disproved. Since they have been disproved by the 1st Respondent, there is no need of looking at the balance of convenience. 9. For the above stated reasons and in conclusion, I find no merit in the motion dated 21-10-2025 which I dismiss. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3346/eng@2026-06-03 2

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Costs in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 3RD DAY OF JUNE, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Jackline and Antony Plaintifi’s Counsel – Mr Onderi 1st Defendant’s Counsel - Absent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3346/eng@2026-06-03 3

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