Gatimu v Muriuki & 2 others

The application is premised on the thirteen (13) grounds on its face marked (i) to (xiii), and supported by the adavits of Patrick Kariuki Gatimu, applicant, sworn on 24th June, 2025 and 24th December, 2025, deposing inter alia that the applicant purchased a portion of land measuring 0.3Ha or thereabout contained in LR. No. Mutira/ Kianjege/162 in the year 1998 from Muthike Gatabiri – deceased; that he has been on the land since 1998, and the 1st and 2nd respondents are aware of those facts; that despite that, the 1st and 2nd respondents initiated succession proceedings to the estate of Muthike Gatibiri without disclosing the applicant’s interest; that after succession, the 1st and 2nd respondents sold LR. No. Mutira/ Kianjege/1268, which forms part of what the applicant occupies, to the 3rd respondent; that the 3rd respondent has come onto the property where he is harvesting the applicant’s coee and cassava roots; that LR. No. Mutira/ Kianjege/162 underwent rectication to be known as LR. No. Mutira/ Kianjege/163; that the applicant has led an application to revoke the grant in Kerugoya Magistrate Succession E455 of 2023. 2. That the 1st and 2nd respondents did not le any replies to the application. The application is opposed by the 3rd respondent through the replying adavit sworn on 17th July, 2025, in which he deposed inter alia that LR. No. Mutira/ Kianjege/1268 is not a subdivision of LR. No. Mutira/ Kianjege/162, and that the land bought by the applicant out of LR. No. Mutira/ Kianjege/162 has a dierent acreage from LR. No. Mutira/ Kianjege/1268; that LR. No. Mutira/ Kianjege/1268 is a subdivision of LR. No. Mutira/ Kianjege/163 and not LR. No. Mutira/ Kianjege/162; that he bought LR. No. Mutira/ Kianjege/1268 in 2025 and took possession in March, fell trees and has been cultivating on it since then; that he has a title to LR. No. Mutira/ Kianjege/1268. 3. The court issued directions on ling and exchanging submissions on the application. The learned counsel for the applicant led their submissions dated 8th April, 2026, while that for the 3rd respondent led theirs dated 17th July, 2025 and 13th January, 2026. 4. The learned counsel for the applicant submitted inter alia that his client had purchased LR. No. Mutira/ Kianjege/1268 from Muthike Gatibiri and paid a total purchase price of Ksh. 120,000/=; that upon rectication of the register on 19th March, 2014, the land subject that was LR. No. Mutira/ Kianjege/162 became LR. No. Mutira/ Kianjege/163; that the 1st and 2nd respondents were incapable of passing good title to the 3rd respondent; that the 3rd respondent holds the land in trust for the plainti as he acquired the land whereas the plainti has been on the land since 1998; that the 3rd respondent tried to occupy the land by felling trees; that the applicant has established a prima facie case and should be protected as failure to do so would occasion him irreparable damage. The plainti relied on the decision in the case of Dina Management Ltd –vs- County Government of Mombasa & 5 others [2023] KESC 30 (KLR). 5. The learned counsel for the 3rd respondent submitted inter alia that the applicant’s claim pertains to a dierent land, for he bought a portion out of LR. No. Mutira/ Kianjege/162, whereas the 3rd respondent’s land is LR. No. Mutira/ Kianjege/1268, and that the two parcels are distinct in history and registration; that LR. No. Mutira/ Kianjege/1268 is a subdivision of LR. No. Mutira/ Kianjege/163; that the 3rd respondent holds title to LR. No. Mutira/ Kianjege/1268 which title is protected by Section 26 of Land Registration Act, 2012. The counsel further submitted that the applicant has not tendered evidence to establish any overriding interests under Section 28 of the Land Registration Act, 2012; that the land sale agreements tendered in support of the application are suspicious, and the adverse possession claim against the 3rd respondent is misplaced as he only acquired title in 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5687/eng@2026-09-23 2

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It was further submitted that the suit is defective, and does not pass the three-part test laid out in the case of Giela -vs- Cassman Brown [1973] EA 358. The counsel also submitted that equitable remedies cannot be granted where fraud is apparent, and that the present application is a nullity in law, as the sale agreement is time barred and thus unenforceable. The counsel cited the cases of Muchanga Investments Ltd –vs- Safaris Unlimited (Africa) Ltd & 2 others [2009]eKLR; Kenya Electricity Transmission Co Ltd -vs- Kibisu [2019] eKLR; and Mbira -vs- Gachuhi [2002] E.A. 137 in support of their submissions. 6. 7. From the forgoing the issues arising for the court’s determination are as follows: a. Whether the applicant has established the legal threshold for temporary injunction order to issue. b. Who pays the costs? The court has considered the grounds on the notice of motion, adavit evidence, submissions by the learned counsel, superior court decisions cited thereof and come to the following conclusions: a. To succeed in his application, the applicant needed to establish the existence of a prima facie case; that he would suer irreparable loss/damage if the temporary injunction order sought is not issued and that the balance of convenience should tilt in his favour. The denition of a prima facie case is found in Mrao -vs- First American Bank of Kenya & 2 others [2003] eKLR, where it was held as follows: “ …it is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter…. A prima facie case is more than an arguable case. It is not sucient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.” The applicant has contended that he occupies LR. No. Mutira/ Kianjege/1268 that the 1st and 2nd respondents sold to the 3rd respondent, who now wants to evict the applicant from it. It is apparent from the narration that the applicant is apprehensive that his right to property is at risk of violation. b. It is apparent also that the 3rd respondent acquired title to the suit property in 2025. The applicant has claimed overriding interests spanning from 1998 over that land. It is trite that transfer of proprietorship in land is subject to Section 28 (h) of the Land Registration Act, 2012, which provides as follows: “ 28. Overriding interests Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and aect the same, without their being noted on the register(h) c. rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;” The court is alive to the right to property under the provision of Article 40 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5687/eng@2026-09-23 3

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That right is however qualied under Article 40(6) which provides that: “ The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” It is also apparent that the applicant has pleaded adverse possession in his plaint. That claim cannot be termed perfunctory, at this stage, as his claim of a long stay on the land has not been challenged, through evidence. The court is of the view that the applicant has established a prima facie case. d. The applicant has in support of his application deposed that the 3rd respondent cut his trees, and he is harvesting his cassavas. The 3rd respondent at paragraph 7 of his replying adavit deposed as follows: “ 7. That I bought the subject matter; took occupation; fall (sic) trees and I am cultivating coee from March 2025 and I have a title deed.” Through that deposition, the 3rd respondent has conrmed the applicant’s claim that his trees were cut. In the case of Onyango & 16 others –vs- Kinyua & 3 others; County Government of Nairobi (Interested Party) [2026] KEELC 762 (KLR) the court addressed what can constitute irreparable loss, where it held that: “ The construction will permanently alter the state of the land which cannot be compensated by way of damages. As such the lower risk lies in favour of preserving the substratum of the suit” The 3rd respondent’s act of cutting trees, from the contested land, will likely result to economic disenfranchisement on the part of the applicant. As was found in the foregoing decision, which dealt with a situation similar to the one herein, I nd the applicant has established that irreparable harm will be occasioned if the prayer sought is not granted. 8. e. Having found that the applicant has established the existence of a prima facie case and that he is likely to suer irreparable damages, which are the rst two prerequisites for granting of an injunction, it naturally follows that the balance of convenience tilts in favour of the plainti. f. Under Section 27 of the Civil Procedure Act, Chapter 21 of Laws of Kenya, cost follow the events unless where the court is convinced to order otherwise on good grounds. In this instance, I nd justice will be served better with an order that costs abide the outcome of the main suit. Flowing from the above determinations, the court nds and orders as follows: a. That pending the hearing and determination of this suit, the 3rd respondent is hereby restrained from leasing, transferring, selling, disposing, alienating or in any way dealing with title in respect of LR. No. Mutira/ Kianjege/1268. b. That pending the hearing and determination of this suit, the 1st, 2nd and 3rd respondents, their agents, family and servants are hereby restrained from entering, trespassing, utilizing LR. No. Mutira/ Kianjege/1268. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5687/eng@2026-09-23 4

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c. Costs shall abide the outcome of the main suit. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 23RD DAY OF SEPTEMBER 2026. S. M. Kibunja ELC JUDGE In the presence of: Plainti – No Appearance. Defendants – 3rd Defendant only. Kinyua/Charles - Court Assistants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5687/eng@2026-09-23 5

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