Onduso & 41 others v Cherogony, Shariff, Choge

MILIMANI ELC (OS) NO. E039 OF 2026 KEFA MUNDATI ………………………………………….28TH PLAINTIFF RUKIA WANJA ABDI …………………………………….29TH PLAINTIFF PATRICK KAMAU ……………………...………………...30TH PLAINTIFF JANE NGIMA …………………………..………………...31ST PLAINTIFF CHARLES KAVITA MAKAU …………………………….32ND PLAINTIFF SUSAN M NJERI KARIUKI ……………………….…...33RD PLAINTIFF BONIFACE NGAE MBELENGE …………….…………34TH PLAINTIFF PETER KARANJA ……………………………...………...35TH PLAINTIFF NJERU GACHINI …………………………………………36TH PLAINTIFF BERNARD KIMARU NJOGU …………..………………37TH PLAINTIFF OMARI ZABLON MARTINS …………………………….38TH PLAINTIFF REGINA WAIRIMU …………………………….…………39TH PLAINTIFF GEOFFREY MWANGI NDIRANGU ……..…………….40TH PLAINTIFF GATHAIYA KIMANI ………………………..…………….41ST PLAINTIFF STEPHEN MALUKI NGWAE ……………………………42ND PLAINTIFF VERSUS EVA CHEPKURUI CHEROGONY NOREEN ALI SHARIFF BYRON KIPNGETICH GAWON CHOGE (SUED AS THE LEGAL ADMINISTRATORS AND REPRESENTATIVES OF THE ESTATE OF JIM KIPTUM CHOGE)……………..…...1ST DEFENDANT KENYA COMMERCIAL BANK …………………………...2ND DEFENDANT RULING 1. The motion before the Court is dated 29.6.2026. The Plaintiffs’ seek temporary injunction restraining the Defendants from entering, trespassing, fencing, selling, transferring, leasing, charging, advertising for auction, evicting, or in any manner interfering with the Plaintiff’s and the occupants’ quiet possession and enjoyment of L.R Page 2 of 13

page 2 of 13

MILIMANI ELC (OS) NO. E039 OF 2026 No. 209/11568 I.R No. 58299, currently Nairobi Block 179/2114 situated in Saika, along Kangundo road Nairobi County. 2. The reasons are contained on the face of the application and in a supporting affidavit sworn on 29.6.2026 by Hudson Ongere Onduso, where he attaches authority to sue on behalf of the 42 Plaintiffs marked as annexure H00(1). 3. It is contended by the Plaintiffs that they have been in occupation of the suit property occupation of the suit property since 2000 without the consent of the respondent being the registered owners, after they bought portions of the same from one Jacob Mwangi Mugo alleging that he was in the process of acquiring a title. Attached are copies of sale agreements marked – HOO(2). 4. The Plaintiff depose that since purchasing the land, they have been in quiet and uninterrupted use, possession and occupation without any force, stealth, mistake or collision from the registered owners, while occupation for the last 25 years has also been peaceful, open and exclusive until 2.6.2026. Page 3 of 13

page 3 of 13

MILIMANI ELC (OS) NO. E039 OF 2026 5. The Plaintiff depose that on or about 2nd June 2026, the 1st Defendant, without any colour of right, with the help of the Director, Criminal Investigation, Kayole Police Station, summoned them and verbally threatened them with an eviction notice that each of them pays for the plots or vacates the land by 30.6.2026. 6. The Plaintiff depose that to carry onto the threat the 1 st Defendant on 23rd & 24th June ,2026 at night individually or through relatives or agents, or servants sent unknown people to the suit property who threw garbage or wastes on the roadside blocking their access to the suit property and per annexed photos marked HOO (2). 7. The Plaintiff deposes that they only realised that the Defendants have title to the land on 2.6.2026 when the DCI summoned them, and the estate of the late Jim Kiptum Choge demanded payments to them for the plots in default to vacate the land. 8. Further, the Plaintiff deposes that they then instructed lawyers on record for them who effected a search over the title, showing that the suit property was registered in the name of the late Jim Kiptum Choge who charged it with Page 4 of 13

page 4 of 13

MILIMANI ELC (OS) NO. E039 OF 2026 the Kenya Commercial Bank Ltd on 7.12.1993 vide a charge dated 1.12.1993 as per annexure marked HOO(4). 9. The Plaintiff depose that, out of long occupation without eviction or attempt to take vacant possession by the true owner, they have acquired the right to adverse possession, as there has also been no effective entry to the land by the respondent. 10. The Plaintiff depose that they have also erected permanent structures and houses on the suit land without interruption by the Defendants, where they reside with family members, undertaking their daily lives as per annexure photographs marked HOO(5). 11. The Plaintiff depose that, given the threatened eviction, they are apprehensive that, without interim orders of injunction, they will be evicted and then stand to be subjected to irreparable loss due to the substantial investments they have on the land; otherwise, there will be no prejudice to the Defendants if the orders are issued, especially when the owners have been aware for over 25 years. Page 5 of 13

page 5 of 13

MILIMANI ELC (OS) NO. E039 OF 2026 12. When the matter came up for hearing inter-parties on 30.7.2026, Mr Waweru, Advocate for the Plaintiffs, submitted that the Plaintiffs have resided on the land not as licensees, but as persons who have acquired adverse right to the land. Despite entry onto the land on different dates, learned counsel submitted that the Plaintiffs have a common interest in acquiring an adverse interest in the land, which the Defendants have not interrupted through their occupation, use and development, as the present houses or homes displayed in the photographs attached to the supporting affidavit. 13. The Plaintiffs submitted that they have met the threshold to be granted interim orders of injunction. 14. The Plaintiffs, regarding the 1st Defendant’s Replying Affidavit, submit that the 1 st Defendant has not challenged the possession so far and therefore it will not be prejudicial to issue interim orders of injunction until the suit is heard and determined. 15. Learned counsel, Mr Wesonga, for the 1st Defendant, opposed the motion through a replying affidavit. Noreen Choge and written submission sworn and dated 27.7.2026. Page 6 of 13

page 6 of 13

MILIMANI ELC (OS) NO. E039 OF 2026 16. The 1st Defendant denies issuing any alleged notice of eviction to the Plaintiffs. 17. Further, the 1st Defendant terms the authority to sue for relied upon by the Plaintiffs as an act of deception, given that in entry No. 10 the signatory lied on 12.4.2021. 18. The 1st Defendant deposes that, going by the sale agreement exhibited, the Plaintiffs cannot be hostile owners of the suit land, for they did not pay the alleged monies to the 1st Defendant. 19. The 1st Defendant deposes that some of the Plaintiffs have paid monies to the 1st Defendant to regularise their purchase or occupation as captured in the Replying Affidavit. 20. The 1st Defendant deposes that the photos attached to the Supporting Affidavit have been taken elsewhere and not on the suit land to mislead the Court. 21. The 1st Defendant deposes that the Plaintiffs hold no title, rate or rent payment receipts, and are not entitled to any interim orders. 22. The 1st Defendant deposes that the subdivision map attached to the supporting affidavit is not authentic, as Page 7 of 13

page 7 of 13

MILIMANI ELC (OS) NO. E039 OF 2026 explained in the Replying Affidavit. The 1 st Defendant terms that orders issued by the Court were obtained through deception concealed as material fact or misrepresentation. 23. Learned counsel in his oral submissions on behalf of the 1st Defendant conceded that the Plaintiffs are currently in occupation or possession of the suit premises. 24. Nevertheless, learned counsel submitted that some of the Plaintiffs, such as Peter Mweura Wamburu, Stephen Kamau, Patrick Maina, and June Wanjiru King’oo, a wife to the 21st Plaintiff, have registered their occupation. 25. In a rejoinder, learned counsel for the plaintiffs submitted that the Plaintiffs are in Court to get title. 26. Learned counsel submitted that the alleged regularisation of occupation by some of the Plaintiffs, if that was the case, has not been captured in the Replying Affidavit. 27. Learned counsel submitted that the issue of his clients being summoned on behalf of the 1 st Defendant by the police has equally not been denied in the Replying Affidavit. Page 8 of 13

page 8 of 13

MILIMANI ELC (OS) NO. E039 OF 2026 28. Learned counsel also conceded that the 21st Plaintiff is reportedly deceased. 29. What the Plaintiffs have brought before Court is a suit where they seek to be declared entitled to orders of adverse possession to the suit land owned by the 1 st Defendant and charged with the 2nd Defendant. 30. In Njihia vs Wainaina, Civil Appeal 131 of 2020 (2026) KECA 1398 KLR (10th July 2026 (Judgment) the court addressed its mind on the ingredients of adverse possession. Adverse possession, as held in Mtana Lewa Vs Kahindi Mwagandi (2021)KEELC 3071(KLR) Judgment delivered on 3rd June 2021, steps in out of the inaction or negligence of a true title holder to take action against intruders on his land for a period of 12 years. 31. In this matter, the Plaintiff are seeking to be declared as adverse owners of the land where, according to them, they are now threatened with eviction by the 1 st Defendant through intervention of the DCI of Kayole, to either voultaarily vacate or legalise occupation with the true owner otherwise they risk eviction. Page 9 of 13

page 9 of 13

MILIMANI ELC (OS) NO. E039 OF 2026 32. The party seeking interim orders of injunction must surmount the ingredients set out in Giella Vs Cassman Brown & Co. Ltd, ( 1973 ) EA 358, Mrao Ltd. Vs First American Bank of Kenya Ltd ( 2003 ) KLR 125 (CA) , Nguruman Ltd. Vs Jan Bonde Nielsen & Others (2014) KECA 606 (KLR; Civil Appeal NO 77 OF 2012 Judgment delivered on 4th April 2014. 33. A prima facie case is more than an arguable case. It is established that, looking at the material before the court, a right of interest has been infringed, calling for a rebuttal from the other side. 34. The law is that an applicant need not establish title to land. Similarly, a Court is not expected at the interlocutory stage to conduct a mini-trial or make definitive findings on both the law and the facts. In this suit, the Plaintiffs have displayed a sale agreement and photos showing that they acquired some interest or rights in land belonging to the 1st Defendant. The 1st Defendant has conceded that some of the Plaintiffs have legalised use, occupation and possession of the land with them. The court finds that the Plaintiffs have established a prima facie case. Page 10 of 13

page 10 of 13

MILIMANI ELC (OS) NO. E039 OF 2026 35. Coming to irreparable loss or damage, the same was defined in Nguruman Ltd vs Jan Bonde Nielsen (Supra) as one that may not be monetarily measured. It must be real, apparent, demonstrable and not speculative. In this matter, occupation of the land by intruders is conceded by the 1st Defendant. The photographs produced by the 1 st Plaintiff display immense development on the land without the consent or authorisation of the 1 st Defendant. I think the Plaintiff have also demonstrated the hurdle of irreparable loss or damage if interim orders are not issued. 36. Balance of convenience was defined in Kogo v Tenai (Supra) as to what would happen to an applicant, being greater in the absence of an injunction as compared to the respondent if the injunction is granted and the suit ultimately dismissed where the right is not disputed, but the violation is disputed. The Court looks at the lowest degrees of injustice.In Amir Suleimani vs Amboseli Resort Ltd NRB Civil case no. 2078 of 2003, the Court cited, with approval, Gusii Mwalimu Investment Co. Ltd & others vs Mwalimu Hotel Kisii Ltd (iv) appeal No. 160 of 1995, that the Court of law cannot allow the Page 11 of 13

page 11 of 13

MILIMANI ELC (OS) NO. E039 OF 2026 law of the jungle to take over unless the tenant's consents to or agree to give up possession;otherwise the landlord has to obtain an order for vacant possession. 37. The law on eviction is set out in section 152A-1 of the Land Act. The 1st Defendant cannot use a shortcut through the police to drive out alleged illegal occupants to private land. The notice given for 30.6.2026 through the presence of the Defendants falls short of what the law expects, as was held in the Mitu -Bell Case. 38. The upshot is that the Court grants a temporary injunction to remain in force for one year. Orders accordingly. DATED, SIGNED AND DELIVERED THIS 16TH SEPTEMBER 2026 VIA MICROSOFT TEAMS ……………………………….. HON. C.K. NZILI JUDGE In the presence of: 1. Mr. Waweru for the plaintiff 2. Wesonga for the 1st respondent 3. Miss. Swaka for the 2nd defendant 4. C/A: Julius Page 12 of 13

page 12 of 13

MILIMANI ELC (OS) NO. E039 OF 2026 Page 13 of 13

page 13 of 13