Philip Maiyo v Sammy Tarus

parcel of land known as PIONEER/NGERIA BLOCK 1 (EATEC)/11119. d) That the OCS Langas Police Station do assist to ensure compliance of the orders of this Court. e) That the costs of this application be provided for. 2. The Application is supported by an affidavit sworn by the Plaintiff/Applicant herein on 6th March, 2026 and the annexures thereto whose deposition basically explains out the grounds upon which the application is predicated among others. 3. Briefly, the Plaintiff/Applicant contends that he is the legal and registered owner PIONEER/NGERIA of all that BLOCK 1 parcel of land (EATEC)/11119 known as measuring approximately 2.83 Hectares. The Plaintiff/ Applicant claims that in or about February 2026, the Defendant/Respondent without any consent, authority or permission entered the Applicant’s said parcel and interrupted the peaceful utilisation of his land. 4. The Plaintiff/Applicant further contends that the Defendant/Respondent has interfered with the said parcels initial boundaries and commenced preparation of the land for planting. In addition, that despite the issuance of a demand letter calling upon the Defendant/Respondent to cease and desist from his unlawful acts, he has ignorantly continued and further intensified his encroachment upon the said parcel of land. 5. The Plaintiff avers that the Defendant/ Respondent continued actions deprive the said Plaintiff/Applicant full enjoyment of his ELC CASE NO. 026 OF 2026 RULING Page 2

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proprietary rights over his own land parcel and he stands to suffer irreparable harm and loss as the Respondent has shown no intention of desisting from his unlawful acts unless this Honourable Court intervenes by granting the said orders. 6. In opposing the Application, the Defendant/Respondent filed a Replying Affidavit dated 19th May, 2026 sworn by Sammy Tarus, the Respondent herein. Briefly, the Defendant/ Respondent contends that the Applicant only attached a copy of title deed which was issued on 13th June, 2011 which cannot be conclusive proof of ownership without the current official search from the lands office to ascertain the current ownership status of the land in question. 7. The Defendant/Respondent further contends that he does not own neither is he in occupation of any parcel of land neighbouring parcel of land known as PIONEER/NGERIA BLOCK 1 (EATEC)/11119. He further denies the contents of paragraph 6 and 7 of the Applicants Supporting Affidavit and avers that he has not encroached the plaintiffs parcel of land known as PIONEER/NGERIA BLOCK 1 (EATEC)/11119. 8. In addition, the Defendant/Respondent contends that he has not in anyway breached the Plaintiff/Applicant’s fundamental rights and in particular the plaintiff’s right to ownership to the property in question. 9. The Defendant/Respondent contends that the Plaintiff/Applicant herein obtained the orders before the Honourable Court by way of concealment of material facts and/or misrepresentation to ELC CASE NO. 026 OF 2026 RULING Page 3

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wit by alleging trespass when there was none, suing the Defendant/ Respondent because he is the son-in- law to one of his neighbours, and when the Respondent is neither in occupation nor in ownership of any neighbouring parcel of land. 10. The said Defendant/Respondent avers as informed by his advocate on record that the Plaintiff/Applicant has not demonstrated the extent of alleged trespass by annexing any photographs and/or any other documentary evidence. 11. The Defendant/Respondent further avers that the Plaintiff/Applicant has no locus and or legal basis to institute a suit against him by virtue of being a son-in-law to one of his neighbours. 12. The Defendant/Respondent contends that as informed by his Counsel on record which he believes to be true that when a party institutes a suit there must be a cause of action and the existence of the subject matter and as it stands there is no suit against the said Defendant/Respondent as there is neither a cause of action nor existence of the subject matter. 13. Lastly, the Defendant/Respondent contends that the present application is baseless, unfounded and an abuse of courts process and ought to be dismissed with costs to the said Respondent. 14. The Application herein was canvassed by way of written submissions. The Applicant herein filed his written submissions dated 18th May 2026 through the office of Ms. Tum & Associates ELC CASE NO. 026 OF 2026 RULING Page 4

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Advocates. Upon perusal of the Court file and the E-filing system, I have not seen any submissions by the Respondent. Analysis and Determination: 15. I have carefully considered the motion, the grounds pleaded in support thereof, the Supporting Affidavit and the Replying Affidavit. I have also read and considered the submissions filed by the Applicant herein as well as the law and the authorities cited thereunder. 16. The court finds that the issues for determination are: i. Whether the Applicant’s Application dated 6th March, 2026 has met the requisite threshold to grant the interlocutory injunction sought. ii. (a) Who bears the costs of the application? Whether the Applicant’s Application dated 6 th March, 2026 has met the requisite threshold to grant the interlocutory injunction sought; 17. As correctly submitted by the Applicant’s counsel, the principles for the grant of a temporary injunction are well set out in the case of Giella vs. Cassman Brown & Co. Ltd (1973) EA 358. 18. It is trite law that a claimant seeking orders of temporary injunction must establish that he/she has a prima facie case with a probability of success, must show that he/she will suffer irreparable loss which would not be adequately compensated by an award of damages if the order is not granted and if the ELC CASE NO. 026 OF 2026 RULING Page 5

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court is in doubt, it will decide the application on a balance of convenience. 19. The Court of Appeal in the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 others [2014] eKLR restated this position and held as follows: “…these are the three pillars on which rest the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… if the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.” ELC CASE NO. 026 OF 2026 RULING Page 6

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20. I will now proceed to discuss and determine whether these 3 principles have been met and consider whether the applicant has satisfactorily proved the same to the required standard. 21. The applicant is under a duty to demonstrate the existence of a prima facie case which raises arguable and triable issues with a probability of success. The Court of Appeal in Mrao Ltd vs. First American Bank of Kenya and 2 Others (2003) KLR 125 explained what amounts to a prima facie case and stated as follows: “a prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case 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.” 22. The question that therefore follows is whether the applicant has established a prima case and demonstrated his right which is at risk of being infringed by the Defendant/Respondent to warrant the grant of the injunctive orders. 23. The Applicant herein contends that is the owner of the suit land by virtue of being a registered owner, and that the forceful entry into the Applicant's land by the Respondent is an interference with his quiet and lawful possession. The Applicant further contends that the Respondent’s aim is to cause loss to the applicant since he wants to prevent him from utilizing his ELC CASE NO. 026 OF 2026 RULING Page 7

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land, which is his source of livelihood, during this planting season. That the applicant herein and the family stand to suffer irreparable harm if this Honourable Court does not intervene. 24. In addition, the Applicant herein claims the issue of trespass by the Respondent in regard to the suit land. It is the Applicants contention that the Respondent without any lawful authority gained entry into the Applicant’s land and began ploughing. That he even issued threats to the applicant breaching his peaceful and quiet possession of the land. That the Respondent's actions of trespass have denied the Applicant his right to use the land during this planting season, as the Applicant relies on farming for his livelihood. That the Respondent ploughed the land and cultivated it, which infringed upon his right to the property. 25. In the Respondent’s Replying Affidavit dated 19th May 2026, the Respondent herein denies being in possession of the suit land and claims that the Applicant has not fully demonstrated the said trespass as alleged via photographic evidence and the verge on which the Applicant is suing him is because he is a son in law to one of the Applicant’s neighbour’s. He further alleges he has not in any way interfered with the Applicant’s rights and quiet possession therefore there is no cause of action against him. 26. From the above, there are certain issues which need to be determined at the hearing stage extensively to accord the parties a favourable hearing as a constitutional right therefore, I will not belabour much on the rival claims as they will be ELC CASE NO. 026 OF 2026 RULING Page 8

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canvassed at the hearing of the main suit. However, from the considered material placed before court, I am of the considered view that the order of temporary injunction is merited and is allowed. This is because the applicant has exhibited title in his name which is prima facie evidence that he is the proprietor of the suit land. (b) Who shall bear the costs of this application? 27. On the question of costs, it is now settled that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21), which equally vests this court with discretion on whether or not to award costs. Therefore, a successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. 28. In this case, having held that the applicant has proved his application to the required standard, it is my finding that the applicant is entitled to costs of the application. Orders:29. The upshot is that the Plaintiff/Applicant’s Notice of Motion dated 6th March, 2026 is merited and is allowed as follows: (a) An interim order of injunction is hereby allowed pending the hearing and determination of this suit restraining the Respondent whether by himself, his agents, servants, employees and/or assigns from forceful entry, interfering with boundaries, structures or any developments, preparing/ploughing the land for planting any agricultural ELC CASE NO. 026 OF 2026 RULING Page 9

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activity, dealing with or carrying out any activity on the parcel of land known as PIONEER/NGERIA BLOCK 1 (EATEC)/11119. (b) The OCS Langas Police Station do assist to ensure the compliance of the above orders issued by the Honourable Court. 30. The costs of this Application are awarded to the applicant. 31. Orders accordingly. DATED, SIGNED and DELIVERED virtually at ELDORET on this 24th day of SEPTEMBER, 2026 vide Microsoft Teams. HON. C. K. YANO ELC, JUDGE In the virtual presence of: Ms. Tum for Plaintiff/Applicant. Mr. Okira for 1st Defendant/Respondent. Ms. Aketch holding brief for Mr. Kigen for 2 nd Defendant. Court Assistant - Laban. ELC CASE NO. 026 OF 2026 RULING Page 10

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