Angata Barikoi Farmers Cooperative Society Limited v Mutai & another

a) That the Respondents herein have without any lawful justification and or any colour of right unlawfully and repeatedly trespassed upon and laid claim to the land comprised in Title No. Transmara/Moyoi/3808 measuring approximately 1,500 Acres, land belonging to the Plaintiff thereby interfering with quiet possession of the said piece of land. b) That unless the orders sought by the Plaintiff/Applicant herein are granted, the Plaintiff/Applicant shall continue to suffer loss and damage which are incapable of compensation by way of damages. c) That the balance of convenience is tilted more in favour of the Plaintiff/Applicant herein as against the Defendants/Respondents. 3. The Application is supported by the Sworn affidavit of Benedict Parsaiyo Koyianto, the Applicant’s chairman and duly authorised representative, dated 24.02.2026. The Applicant deponed on the following issues; a) That the Defendants/Respondents moved in and assumed possession of portions of the parcel of land known as Transmara/Moyoi 3808 on 10.02.2026. b) That the Defendants, Respondents built structures on the suit property and have unlawfully fenced off portions of the land and continued to trespass upon the suit land. c) That the actions of the Defendants/Respondents are illegal and provocative and may lead to a breach of peace and an injunction order will restrain the defendants/Respondents from further trespassing. d) That the Applicant stands to suffer irreparable harm and/or loss of damage that cannot be adequately compensated by way of damages if the prayers sought are not granted. 4. The Defendants/Respondents responded to the Notice of Motion filed by filing a Replying Affidavit dated 24.03.2026 sworn by the 1 st Defendant/Respondent with the authority of the 2 nd Defendant/Respondent; deponing interalia; P a g e 2 | 11

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(i) that there is no proper and specific prayer before this Honourable Court that warrants an interrogation by the Court. (ii) that this Application is not anchored to any suit that is known in law and the same ought to be dismissed, (iii) that in the alternative and without prejudice, the Plaintiff/Applicant is an entity which does not exist in law and any claim of its existence is marred with irregularities and illegalities. (iv) that the claims by the Plaintiff/Applicant herein to be the registered proprietor of the suit property is false, void ab initio and untenable. The suit property is registered in the name of ANGATA BARGOI FARMERS COOPERATIVE SOCIETY while the Plaintiff claims to be called ANGATA BARIKOI FARMERS COOPERATIVE SOCIETY LIMITED. Thus, the name in the purported title document is not the Plaintiff’s/Applicant’s name. (v) that it is a fact known to him and many other persons residing in the suit property who are members of the Co-operative society by the name Angata Gaa Co-operative Society Limited as per the Court if Appeal Consent order entered on 14.10.2024 and adopted by the Court of Appeal in Nakuru CACA No. 25 of 2020 (Consolidated with No. 22 of 2020). (vi) that the action by the Registrar of Lands is unlawful and illegal as it runs against the Consent Order of the Court of Appeal. 5. In addition to the Replying Affidavit, a notice of preliminary objection raising the following issues was filed. a) The suit herein is incompetent and cannot support an Application. b) There is no suit in place that can be tried. c) The Registrar of Lands did not have authority to register another person in the suit property other than Angata Gaa Co-Operative Society Limited. P a g e 3 | 11

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d) The Plaintiff does not exist in law. e) The title is not indicated to be owned by the Plaintiff 6. On strength of the Replying Affidavit and the Preliminary Objection the Respondent seek dismissal of the application. 7. Upon service of the Replying Affidavit, the Applicant herein filed a Further Affidavit dated 28.04.26 sworn by Benedict Parsaiyo Koyianto, wherein depones interalia; (i) that the Respondents’ allegations that the Plaintiff does not exist in law is false, misleading and intended to mislead the court. (ii) that the Plaintiff is a duly registered co-operative society known as ANGATA BARIKOI FARMERS CO-OPERATIVE SOCIETY LIMITED, registered under the applicable laws governing co-operative societies in Kenya and that any variation in the name, resulting from a clerical, typographical and/or administrative error does not negate the Plaintiff’s legal existence and such discrepancies are common in land registration records and are curable. (iii) that the Defendants reference to Consent Order in Nakuru Civil Appeal No. 25 of 2020 (Consolidated with No. 22 of 2020) is misplaced and inapplicable to the present dispute, as the defendants herein are not beneficiaries of the suit land under the said consent and must not occupy the land before transfer to the rightful beneficiary as per the consent. (iv) that the consent order does not extinguish the Plaintiff’s proprietary rights nor does it authorize the Respondents’ acts of trespass. (v) that the Respondents claim that there is no suit before this Honourable Court is factually incorrect as this application is properly anchored on a duly filed suit. (vi) that this court is enjoined in Article 159 of the Constitution to administer justice without undue regard to procedural technicalities P a g e 4 | 11

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and it is in the best interest of justice that the orders sought in the Application dated 24.02.2026 are granted. 8. The court directed filing of written submissions in respect of the application. APPLICANT’S/PLAINTIFF’S SUBMISSIONS 9. The Applicant filed written submissions dated 28.04.2026. 10. The Applicant submissions framed 2 issues for determination to wit; (i) whether the Applicant has met the threshold for grant of interlocutory injunction and (ii) whether the Respondents’ objections on competence and existence of the suit are merited. 11. On issue No 1, whether the Applicant has met the threshold for grant of interlocutory injunction, the Applicant relied on the case of Giella v Cassman Brown & Co. Ltd and Nguruman Limited v Jan Bonde Nielsen & 2 Others on the principles governing the grant of interlocutory injunctions. 12. The Applicant’s submissions submit that they have demonstrated proprietary interest in land parcel No. Transmara/Moyoi/3808 through the annexed title documents, forming a prima facie proof of ownership by the Applicant quoting Mrao Ltd. v First American Bank of Kenya Ltd & 2 Others. 13. The Applicant submits that it is in possession and occupation of the suit property however the continued trespass by the Defendants/Respondents could result in irreparable harm including dispossession as squatters are likely to settle permanently on the land and could lead to permanent alteration of the land since the defendants are already putting the land to use that is not convenient to the Plaintiff's use of land for pasture relying on the decision in Kenleb Cons Ltd v New Gatitu Service Station Ltd. 14. On the same issue, the Applicant submits that the balance of convenience titles in favour of maintaining the status quo relying on the court’s position in Suleiman v Amboseli Resort Limited that courts opt for the lower risk of P a g e 5 | 11

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injustice and that preserving the property pending trial safeguards the subject matter of the suit. 15. On issue No. 2, whether the Respondents’ objections on competence and existence of the suit are merited, the Applicant submits that the Notice of Motion is filed within an existing suit and even if there were procedural defects, Article 159 (2)(d) of the Constitution mandates the court to administer justice without undue regard to technicalities. 16. On the same issue, the Applicant submits that the allegations that the Plaintiff does not exist is a contested factual issue which is best addressed at trial where evidence shall be tendered. 17. Further, the Applicant submits that the Respondent’s reliance on a Court of Appeal consent order does not automatically invalidate the Applicant’s title without due process. Under the Land Registration Framework, a registered proprietor enjoys prima facie indefeasible title unless fraud or illegality is proven at trial. The effect of the consent is to facilitate amicable settlement of the dispute between the parties to the consent and not a gateway for third parties to grab portions of the land set aside for allocation to the parties in the suit. 18. The Applicant submits on the strengths above that the Orders sought in Paragraph 1 are granted and a temporary injunction is issued and costs awarded to the Applicant. Defendants/Respondents Submissions 19. The Respondents filed theirs through Written submissions dated 13.05.2026 and framed 4 issues for determination. 20. On issue No 1, whether the suit and application are competent in law, the Respondents submitted 3 sub issues as follows; failure to extract and serve summons to enter appearance, failure to include mandatory averment on P a g e 6 | 11

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existence of other suits, and the suit property was subject to existing court orders. 21. On the first sub issue, failure to extract and serve summons to enter appearance, the Defendants submit that no summons to enter appearance were extracted or served upon the Defendants as required under Order 5 Rule 1 of the Civil Procedure Rules and therefore no proper invocation of jurisdiction over the Defendants and the suit remains fundamentally defective relying on the case of Equity Bank Limited v West Link Mbo Limited. 22. On the second sub issue, failure to include Mandatory averment on existence of other suits, the Defendants/Respondents submit that the Plaintiff/Applicant failed to disclose whether there exists any previous proceedings, pending proceedings, or other suits touching on the same subject matter and parties contrary to Order 4 Rule 1 (1)(f) of the Civil Procedure Rules. Further, that there were existing proceedings before the court of Appeal touching on the same property and the omission was deliberate and calculated to conceal material facts from the court contrary to the decision in Amina Omar & Abdulaziz Gakuria v Dahabo Ali Noor & Chief Land Registrar and Madara Evans Okanga Dondo v Housing Finance Company of Kenya [2005] eKLR. 23. On the third sub issue, the suit property was subject to existing court orders, the Defendants/Respondents submit that there existed a Court of Appeal Consent Order, orders of stay and injunctive orders restraining dealings over the suit property pending resolution of disputes concerning ownership and allocation. The Defendants/Respondents submit that the Applicant has failed to explain how title was allegedly obtained, who authorized the registration and how registration occurred despite subsisting court orders preserving the suit property contrary to Section 60 of the Evidence Act and the principles in Owners of the Motor Vessel ‘Lillian S’ V Caltex Oil (Kenya) Ltd. P a g e 7 | 11

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24. On issue No. 2, whether the Plaintiff/Applicant has established a prima facie case, the Defendants submit that the Applicant has failed to establish a prima facie case as required under Giella v Cassman Brown & Co. Ltd and Nguruman Limited v Jan Bonde Nielsel & 2 Others since the Applicant’s identity is contradictory and uncertain and the discrepancy goes to the root of ownership, legal identity, locus standi, and capacity to sue, the title is seriously impugned per Section 26 of the Land Registration Act, and material non-disclosure where the Applicant failed to disclose the existence of the Court of Appeal proceedings, the subsisting orders of stay and injunction and the restrictions affecting the suit property contrary to the court’s decision in Uhuru Highway Development Ltd v Central Bank of Kenya. 25. On issue No. 3, whether the Applicant is entitled to equitable relief, the Defendants submit that equity does not aid parties who approach the court with unclean hands. The conduct of the Applicant disentitles it from equity because the alleged title was obtained during subsisting court orders, material facts were concealed and the Applicant seeks to use the court process to sanitise questionable registration processes. 26. On issue No. 4, whether the applicant is entitled to equitable relief, the Defendants/Respondents submit that the Applicant has not demonstrated irreparable harm and the alleged loss is speculative and compensable by damages. 27. On issue No. 5, whether the court ought to grant the orders sought, the Defendants/Respondents submit that the balance of convenience tilts heavily in favour of maintaining the existing status quo pending full hearing and determination of the dispute. 28. The Defendants/Respondents submit that the Applicant has failed to satisfy the threshold for grant of interlocutory injunction and this Honourable Court ought not to aid or legitimize processes undertaken contrary to superior courts orders. P a g e 8 | 11

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Issues for Determination 29. Arising from the application, the affidavits and the submissions, the court frames the following as issues for determination a. Whether or not the suit is competent? b. Whether or not the application is merited? c. What reliefs ought to issue? d. Who bears the costs of the suit. Analysis and Determination 30. At the outset the court notes that whereas the Respondent referred to a consent judgment filed before the Court of Appeal, the Respondent did not exhibit the said consent judgment before this court and the court is unable to factor the import of the said consent judgment of the Court of Appeal in this application. The court notes that it has interacted with the said consent judgment filed before the Court of Appeal in other proceedings before this court, but having not exhibited it before court in support of his deposition, the court is unable to make reference to it. 31. On issue No. 1, the Respondent contends that the suit herein is fatal defective in that there were no summons to enter appearance that were served in contravention of Order 5 Rule 1 of the Civil Procedure Rules and that the suit equally offends mandatory provisions of Order 4 Rule 1 (i) (f) of the Civil Procedure Rules, and that they were existing proceedings before the Court of Appeal. 32. The Applicant submissions did not address these two issues. 33. I have checked the CTS and indeed there are no summons to enter appearance that were extracted and served alongside the plaint as required under Order 5 Rule 1, the consequence is that under Order 5 Rule 6, non-service of summons within 30 days renders the suit abate. P a g e 9 | 11

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34. I have equally perused the Plaint filed herein and the same offends the mandatory provision of Order 4 Rule 1 (f) that provides “(1) Particulars of Plaint (Order 4 Rule 1) a. …………………. b. ………………. c. ……………… d. ……………... e. …………….. f. An averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the Plaint…” 35. The above provision is a mandatory procedural under the Civil Procedure Rules and the Plaintiff did not adhere the same rendering the Plaint as drawn to be fatally defective. Coupled again with the non-service of the summons to enter appearance within 30 days as required, the court thus agrees with the Respondent that as the Plaint is fatally defective, the application before court cannot be supported. 36. Thus, in answer to issue No. 1 the court finds that as the suit is fatally defective, the application cannot be supported and the court shall not dwell into the merits of the application as both the application and the suit are struck out with costs to the Respondents, the plaintiff being at liberty to file a complaint suit. Dated at Kilgoris this 16th day of September, 2026 Hon. M.N. Mwanyale Judge P a g e 10 | 11

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In the presence of CA – Sylvia/Clara Ms. Jepkorir h/b for Mr. Bosek for Defendant/Respondent N/A for Ms. Saika for Plaintiff/Applicant P a g e 11 | 11

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