Mambo v Lengetu & 2 others

(ii) The Respondents are violently attempting to evict the Applicant and members of his family from the suit land despite the fact that Applicant and his family has been in occupation of the suit property since the year 1980. (iii) The Applicant and his family have no alternative place they can move to if evicted from their home where they have lived for 46 years. (iv) The Applicant has a primafacie case with high chances of success. (v) The Applicant stands to suffer irreparable loss and damage as a result of the unlawful eviction. (vi) Damages may not be adequate compensation in the events of eviction of the Applicant from the suit land. (vii) The balance of convenience in any event is in favour of the Applicant. 3. The Applicant equally deponed a supporting affidavit in respect of the application in which he reiterated the grounds in support of the application in his depositions and annexed copies of title documents and search in respect of the suit properties, copies of green cards, copies of pleadings in Kilgoris ELC Misc Application No. E003/2023, photographs of developments on the suit property. 4. The 1st Defendant/Respondent, Mr. Daniel Lengetu filed a Replying affidavit for his benefit and with the authority of the 2 nd and 3rd Respondents and deposed interalia as follows; (i) That he was the registered owner of Transmara/Oldonyati/290 having been issued with a title on 9 th January 2024 while the 2nd and 3rd Respondents were issued with titles on 13 th December 2023 (he annexed copies of the said titles respectively). (ii) That they were registered as owners upon completion of the adjudication process and orders issued in Kilgoris ELC Misc. Application No. E003/2023 which orders removed the lifting of restriction placed by Applicant. Page 2|6

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(iii) That the Applicant’s claim of adverse possession is premature, untenable and incapable of succeeding as Respondents were registered in 2024 and the statutory period under sections 7, 13 and 38 of the Limitations of Actions Act has not accrued. (iv) The Applicant has not primafacie case with probability of success, as there exists a suit before the CM’s Court Kilgoris for eviction of the Applicants, to wit E023 of 2026. (v) That a previous suit by the Applicant was dismissed on 15.03.2012 by Nairobi HCC Petition 104/2010. (vi) That the scheduled eviction is not unlawful but an assertion of their rights. 5. The Respondents further annexed copies of the pleadings pending before the CM’s Court at Kilgoris, court CTS system for Nairobi HCC Pet 104/2010, order given on 2 nd November 2023, as well as the application that gave rise to the orders issued on 02.11.2023. 6. The court directed filing of written submissions in respect of the application. Applicant’s Submission 7. The Applicant identified, framed and submitted on the principles for grant of an interlocutory injunction. 8. On issue 1, the Applicant submits that he has established a primafacie having being in actual and physical possession of the suit property for over 46 years; during which time he buried his father and relatives; and placed reliance on the photographs that he had annexed, to support the case. Hence, he has established the claim of adverse possession. He relied on the decision in the case of Mrao Limited Vs. First American Bank of Kenya Limited and 2 Others (2003) KLR on the definition of a primafacie case. 9. On issue number 1, on irreparable loss, the plaintiff’s Applicant submits that in so far as he is in physical and actual possession of the suit property an eviction carried out would cause irreparable loss, as it will render the Applicant and his family homeless. Page 3|6 In

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support of this limb of submissions the Applicant places reliance on the decision in the case of Vivo Energy Kenya Ltd Vs. Maloba Petrol station and 3 Others Civil Appeal No. 21/2014 (2015). 10. On the balance of convenience the Applicant submits that the balance of convenience tilts in favour of preserving and/or conserving the suit property and relies on the decision in the case of Naftali Ruth Kinyua Vs. Patrick Thuita Gachure and Another (2015) eKLR. 11. On the strength of the above the Applicant sought for the grant or orders prayed for in the application. 12. On the strength of the above the Applicant sought for the grant of orders prayed for in the application. Respondent’s Submissions 13. At the time of writing the Ruling, the Respondents submissions had not been filed despite an extension of time by 7 days to file the same on 01.07.2026, hence no submissions on behalf of the Respondents were considered. Issues for Determination 14. Arising from the Application, the affidavits as well as the submissions the court frames the following as issues for determination. (i) Whether or not the application has met the threshold for grant of a temporary injunction so as to be considered as merited. (ii) What reliefs ought to issue? (iii) Who bears the costs of the suit? Analysis and Determination 15. The court notes that the matter is still at the interlocutory stage and that it cannot make final findings. Page 4|6

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16. The principles for grant of an interlocutory injunction were settled in the case of Giella Vs. Cassman Brown which the Plaintiff/Applicant has submitted on. 17. On whether the Plaintiff has established a primafacie with probability of success; the court notes the definition of a primafacie as defined in Mrao Limited Vs. First American Bank, where a primafacie case was defined as “which on the material presented, a tribunal properly directing itself will conclude that there exists a right which is apparently been infringed by the opposite party so as to call for an explanation or rebuttal from the later…. A prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of success of the Applicants case upon trial. That is clearly a standard which is higher than an arguable case…” 18. Has the Applicant established a primafacie case? It is the Applicant’s case, that he has sued for adverse possession having had possession of the suit property for about 46 years now. In response the Respondents contend that the plaintiff had sued them in a matter that was determined in the Constitutional Division of the High court, although the said judgment was not exhibited before this court. Both the annextures exhibited by the Applicant and Respondent reveal that the suit properties were initially registered on 24.05.2017, as per annexture MMM 2a, b and c, as well as 3a, b and c. the Respondents have exhibited copies of titles firstly registered on 24.05.2017, and contends that the 12 year period for adverse possession had not crystalized. 19. Given the date that the suit parcels were registered as well when time for adverse possession starting running, the Applicant has not established a prima facie case with probability of success. 20. Once the court finds that no primafacie case has been established the court is not obligated to inquire into the two Page 5|6

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remaining limbs of Giella Vs. Cassman Brown, as was stated in Kenya Commercial Finance Co. Limited Vs. Afraha where the court held interalia as follows “if prima facie case is not established then irreparable injury and balance of convenience need no consideration”. 21. The upshot is that the Application has not met the threshold of grant of a temporary injunction, in answer to issue No. 1. 22. The court has taken note of the developments exhibited by the photographs annexed by the Applicant and in order to preserve suit property, hereby issues an order for maintenance of status quo prevailing at the moment pending hearing and determination of this suit under the powers of the court through practice direction 12(K) of Gazette Notice No. 5178 of 2014, which empowers the court to make such orders in order to preserve the suit property. 23. Costs of the application shall be in the cause. Dated at Kilgoris this 16th day of September, 2026 Hon. M.N Mwanyale Judge In the presence of CA – Sylvia/Clara Mr. Adera h/b for Mr. Kwanga Mboya for Applicant Mr. Shira for Respondent Page 6|6

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