Mweme & 2 others v Mkala & another

The Application 2. The application is grounded on Section 3A of the Civil Procedure Act (Cap 21 of the Laws of Kenya), Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. It seeks the following prayers: a. Spent. b. Spent c. A temporary order of injunction restraining the 1st Respondent whether by himself, his servants, agents, or any person whomsoever from doing any of the following acts, to wits; selling, transferring, trespassing, entering upon, encroaching, evicting, remaining, constructing, destroying or in any other manner whatsoever interfering with land parcel Kwale/Mwavumbo/44 measuring 45.5 Hac registered in the name of the 1st Respondent. pending the hearing and determination of the suit. d. That costs of the Application be provided for. 3. The grounds in support of the application are that the Applicants are residents of Matumbi Village within Kwale county where the suit property Land parcel title deed No. KWALE/MWAVUMBO/44 is situated and that they have been in possession and carrying out economic activities on the suit property, farming and animal grazing, which activities they have been dependent on for their livelihood for over 40 years continuously. That they have no any other land to carry out the said economic activities other than the suit property. They posit that the 1st Respondent lives in the same village and is and has been fully aware of their possession and utilization of the suit property yet has not taken any step to bar them from carrying out the activities. 4. They aver that the continuous, open possession and utilization of the suit property for the period of over 12 years has since conferred proprietorship of the suit property on them pursuant to section 38 of the Limitations of Actions Act. It was said that the applicants have since prepared the suit property for the long rain season ready to grow crops and in the event the orders sought are not granted the 1st Respondent shall proceed to dispose the suit property or seek to kick the Applicants out of the suit property which exercise shall render the decision of honourable court nugatory in the event the same is entered in their favour. 5. The application is buttressed by a Supporting Adavit sworn by the 1st Applicant, Khamisi Kauli Mwembe, on the 3rd of June 2026 who deposes that he has the authority of his co-applicants to swear the Adavit. He reiterates the contents of the application and deposes that the suit property Kwale/ Mwavumbo/44 is registered in the name of the 1st Respondent as per the annexed copy of the green card yet he, together with his parents and siblings have been relying on the same for farming and animal grazing ever since he was a child. He annexed a bunch of photos showing crops growing on the suit property and deposed that their possession and utilization of the suit property has been without the 1st Respondent or his representative's permission, has been open, continuous and with his knowledge. 6. He deposed that the 1st Respondent has not reclaimed possession of the of the suit property from them despite the fact that he is aware of our possession and utilization and as a result they are entitled to the suit property by way of adverse possession pursuant to section 38 of Limitation of Actions Act. He deposed that they have prepared the suit property for this year's long rain season and feared that the 1st Respondent would interfere with their activities ones served with the pleadings hence the application. He too was apprehensive that if temporary orders restraining the Respondent from disposing the suit property pending the hearing and determination of the main suit, is not granted, there is high chances that the respondent shall dispose the suit property purposely to defeat justice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5582/eng@2026-09-17 2

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Reply by the 2nd Defendant/Respondent 7. The Attorney General for the 2nd Defendant led grounds of opposition. It was their averments that the claim for adverse possession is legally sustainable only against the registered proprietor, as expressly contemplated under Sections 7, 13, 17 and 38 of the Limitation of Actions Act and the Land Registrar is therefore not a necessary or proper party to these proceedings. That the Land Registrar has no statutory mandate to defend or adjudicate claims founded on adverse possession. 8. Counsel noted that under the Land Registration Act, 2012, the Registrar's functions are purely administrative and arise only upon issuance of a court order capable of registration. Counsel therefore dismissed the Originating Summons as disclosing no reasonable cause of action against the Land Registrar, who neither holds nor asserts any proprietary interest in the suit property That the joinder of the 2nd Respondent is therefore a misjoinder contrary to Order 1 of the Civil Procedure Rules and the continued participation of the Land Registrar in the proceedings serves no legal or practical purpose and oends the principle that only parties against whom relief is sought or who are necessary for the eectual adjudication of the dispute should be joined. 9. Counsel sought the claim against the 2nd Respondent be struck out in limine as an abuse of the court process. 10. On the 22nd July 2021, the counsel for the 1st Respondent sought and was granted 21 days leave to put in a replying adavit to the application. As at 10th September 2026, more than 48 days later, no reply has been led and as such, the application stands unopposed in respect to the 1st Defendant/Respondent. 11. The court similarly gave directions as to the lling of submission on the 22nd July 2026. As at 10th September, only the applicant’s submissions were on record. Submissions 12. The Plainti/Applicant lled submissions dated 14th August 2026 and posited the following issues for determination. a. Whether or not the Applicants have a Prima Facie case with probability of success. b. Whether or not the Applicants will suer irreparable injury. c. Balance of Convenience 13. On the 1st issue, counsel submits that the 1st respondent is the registered owner of the suit land all that land KWALE/MWAVUMBO/44 which they, the Applicants have been utilizing for over 30 years growing food crops and grazing livestock for their livelihoods. The utilization has been without permission of the 1st Respondent, has been open, continuous and with full knowledge of the 1st Respondent. Counsel quoted Section 13 and section 38 (1) of the Limitations of Actions Act and avers that by euxion of time, the 1st Defendant’s/Respondent’s title to the land has been extinguished and that the Plaintis are entitled to be registered as proprietors. Counsel gave refence to Cheromei v Muigai (Environment & Land Case E005 of 2023) [2024] KEELC 5604 (KLR) (25 July 2024) (Judgment) and urged the court to nd that they have established a prima facie case. 14. On the question of whether or not the plaintis stand to suer irreparable injury, counsel submitted that the 1st Defendant/Respondent is in possession of all documentation of the suit property hence capable of disposing or alienating the same. That in the event it so happens, the Plaintis will be https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5582/eng@2026-09-17 3

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deprived of land to carry out their farming and livestock keeping activities which they may not be able to recover in any way. Counsel cited Pius Kipchirchir Kogo versus Frank Kimeli Tenai [2018] eKLR on what amount to irreparable injury and urged the court to nd that the Plaintis/ Applicants have established that they will suer irreparable injury unless the injunction is granted. 15. On the balance of convenience, citing Amir Suleiman v Amboseli Resort Limited (2004) eKLR, counsel argued that the balance tilts in favour of the Plaintis/ Applicants. 16. Finally, counsel implored the court to consider the object and purpose of an injunction as provided for under Order 40 Rule 1 of the Civil Procedure Rules and restated in various court decisions. On this, he cited Nduati & 2 others v Chemutai & 3 others (Environment & Land Case E080 of 2024) [2025] KEELC 3550 (KLR) (6 May 2025) (Ruling) Analysis and determination 17. I have carefully considered the application, the supporting adavit and the 2nd Defendant’s/ Respondent’s grounds of opposition. I have also reviewed the written submissions led by the counsel for the Plainti/Applicant, alongside the array of judicial authorities cited therein. The issue arising for determination therefrom is: a. 18. 19. Whether the application meets the threshold for granting injunctive relief. As correctly submitted by counsel for the Plaintis Applicants, the principles guiding the grant of temporary injunctions were crystallized in the landmark decision of Giella v Cassman Brown & Co. Ltd (1973) EA 358. The tripartite test requires an applicant to demonstrate: a. A prima facie case with a probability of success. b. That the applicant will suer irreparable injury which would not convenience. c. If the Court is in doubt, it will decide the application on the balance of adequately be compensated by an award of damages. It is settled law that these three conditions are sequential. As elucidated in the case of Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001]1 EA 86, an applicant must surmount the rst hurdle before the Court can even consider the second. Only when the Court is in doubt after analyzing the rst two conditions does the third condition, the balance of convenience, come into play. In that case the Court held:“The conditions stated in Giella’s case are sequential so that the second condition can only be addressed if the rst one is satised, and when the court is in doubt then the third condition can be addressed.” Establishment of a Prima Facie Case 20. The Plaintis/Applicants bear the heavy burden of establishing a prima facie case with a probability of success. As stated in Nguruman Ltd v Jan Bonde Nielsen & 2 others [2014] eKLR:“We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a nal decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona de question to raise as to the existence of the right, which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5582/eng@2026-09-17 4

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means no more than the court takes the view that on the face of it, the applicant’s case is more likely than not to ultimately succeed.” This means that while the Court is not required to hold a mini-trial at this interlocutory stage, it is duty-bound to closely examine the merits of the case to determine whether the Applicant's case is more likely than not to succeed at a full trial. 21. The Plaintis’ substantive claim of adverse possession pursuant to Section 13 and 38 (1) of the Limitation of Actions Act to the eect that by virtue of long usage (cultivation and livestock grazing) of the suit land, they have acquired prescriptive rights that ought to be registered. The Court is mindful that, at this interlocutory stage it ought not make a nal decision on whether those rights have truly been acquired and whether the 1st Defendant’s/Respondent’s title has been extinguished. These determinations are a preserve of the trial court upon a full hearing of the main suit, evidential analysis and evaluation of the many elements of adverse possession. 22. While the 1st Defendant/Respondent is yet to le a defence to the substantive claim and while as already stated earlier in this ruling, they had led no response to the application by the time of writing this ruling, the duty of the court to consider whether the Plaintis/Applicants have established their case to the afore stated threshold, is not lessened. The duty of the court in an unopposed application was addressed in Konchellah v Sunkuli & 2 others (Civil Application 26 of 2018) [2018] KESC 58 (KLR) (7 September 2018) (Ruling) where the Supreme Court no less, held; ‘‘It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satised that prima facie, with no objection, the application is meritorious and the prayers may be granted’’ 23. At this stage, it is instructive to note that the suit property Kwale/ Mwavumbo/44 is said to be 45.5 Hac. That is basically 112.43 Acres. The plaintis’/Applicants’ allegation is that they have been farming and grazing their animals on the suit land and depending on the farm proceeds for their survival. The understanding of this allegation is that what the Plaintis/Applicants have been doing is subsistence farming for their subsistence. No commercial farming or livestock keeping. They too have not been residing on the suit land. 24. The Plaintis/Applicants have not specied what portion of the suit land their subsistence activities are conned. They seek orders of injunction in respect of the entire 112.43 Acres. They seek the 1st Defendant/Respondent, who is the registered owner be restrained from entering into the entire 112.43 Acres parcel of land. With the expansiveness of the suit land and their alleged activities on the suit land, it is hard to fathom, without oral evidence, that their activities hence possession, have been conned to the entire suit land. 25. In eect, they have failed, prima facie, in establishing a claim as against the 1st Defendant/Respondent in respect of the entire suit land. This court therefore do nd that the Plaintis/Applicants have failed to establish the 1st hurdle of the sequential tripartite hurdles.Irreparable Injury 26. Because the conditions in Giella v Cassman Brown are sequential, the Applicant’s failure to establish a prima facie case ordinarily ends the Court’s inquiry. The application fails at the rst hurdle. However, to ensure comprehensive consideration of the submissions, the Court will briey consider the second limb: irreparable injury. 27. Irreparable injury, as dened in Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR, cited by counsel for the Plainti/Applicant means an injury that cannot be adequately compensated for in damages. The applicant must show that the injury will occur if the injunction is not granted and that there is no other remedy open to protect himself from the consequences of the apprehended injury. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5582/eng@2026-09-17 5

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28. The Plaintis’/Applicants’ counsel simple argument is that because the 1st Defendant/Respondent is in possession of all documentation of the suit property hence capable of disposing or alienating the same, the Plaintis/Applicants will be deprived of land to carry out their farming and livestock keeping activities which they may not be able to recover in any way. 29. While this Court fully acknowledges the jurisprudential principle that land is generally considered unique and that eviction often inicts harm that is dicult to quantify in damages, the concept of irreparable injury in equity carries a caveat: the threatened harm must be an infringement of a prima facie legally recognizable right. Having failed to establish a prima facie case, the court is not able appreciate how they will suer irreparable injury.The Balance of Convenience 30. The third limb of the Giella test is only invoked when the Court is in doubt regarding the rst two conditions. In this matter, the Court harbors absolutely no doubt as to the two element and need not consider the balance of convenience. Final Orders 31. The Plaintis/Applicant have failed to satisfy the criteria for the grant of an interlocutory injunction under the Giella v Cassman Brown principles.rd June 2026. The application is hereby dismissed in its entirety. Cost of the Application will abide the outcome of the suit. Consequently, the Court nds no merit in the Applicant’s Notice of Motion dated 3 DELIVERED VIRTUALLY, SIGNED AND DATED THIS 17 TH DAY OF SEPTEMBER 2026. HON. E.G NDERITU LJ ELC KWALE In the presence of: Mr Gambo for the Applicants Mr Kings for the1st Respondent Ms Kiti for the 2nd Respondent Ms Halima C/A https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5582/eng@2026-09-17 6

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