Bargoria v Wandera & another

Kimumu Settlement Scheme/1404 currently being utilised by the applicant and the OCS Kapsoya Police Station ensures compliance of the orders. 4. That costs be provided for. 2. The Application is premised on the grounds set forth on the Motion and supported by the Plainti/ Applicant’s Adavit dated 04.12.2025. She deponed that she assumed possession of parcel no. Uasin Gishu/Kimumu Settlement Scheme/1404 measuring 0.25 Acres and extensively developed it by constructing rental houses. The Plainti claims to have been in exclusive possession of the portions of the suit property as of right without force, without permission and without secrecy since 2009 for over 12 years now. That she has by this suit moved the court to be declared owner thereof through adverse possession. 3. The Plainti averred that she has made tremendous and massive investments thereon with the assistance of her brother Eric Chelimo Kipsaina. That however, on or about 30.11.2025, the 2nd Defendant/Respondent stormed into the suit property holding a title deed over the suit property and demanded that her sister vacate the suit property. That the 2nd Defendant claimed his wife, the 1st Defendant/Respondent herein, was the registered owner of the land. The Plainti claims that the 1st Respondent has never utilised, occupied or possessed the suit land. The Plainti asserts that her continuous possession has been adverse and inconsistent that of the registered owner. 4. According to the Plainti, she has demonstrated a prima facie case to warrant the orders sought herein pending the hearing and determination of this suit, and that the Defendants have no right to interfere with her possession thereof. She expressed apprehension that the 2nd Respondent may execute his threats by mobilising goons to damage the buildings on the land and evict the tenants therein leading to loss of income, which may not be compensated by way of damages. She urged that the Land Registration Act protects rights acquired and/or in the process of being acquired by prescription. 5. The Plainti also led an Adavit sworn by her brother, Eric Chelimo Kipsaina, on 04.12.2025 in further support of the present Motion. He deponed that the Plainti assumed possession of the suit land in 2009 and he assisted her in developing it. That the 2nd Defendant went to the land on 30.11.2025 claiming to be the registered owner’s husband and asked their sister to vacate the land. He reiterated the Plainti’s averment that she had been on the land continuously and openly for over 12 years, contrary and adverse to the Defendant’s interest. That as a result, the Plainti had demonstrated a prima facie case warranting a grant of the orders sought pending hearing and determination of the suit. 6. The 2nd Defendant/Respondent opposed the Application through a Replying Adavit sworn on 23.03.2026. He deponed that his wife, the 1st Defendant, purchased the suit property from one Susan Njeri and was issued with a title deed in 2007. That they took possession and have been farming thereon to date. He deponed that he has frequented the suit property and is aware that the late Charles Njenga’s family had subdivided their land and sold it to several buyers. That this includes Susan Njeri who bought the suit land herein. That Andrew Njenga, son of the late Charles Njenga, called him to inquire about the true position of the land. That consequently, he conrmed ownership of the land from the Lands Registry accompanied by the family of the late Charles Njenga, where he also purchased a map to undertake a survey exercise. 7. The 2nd Defendant accused the Plainti of gross misrepresentation of facts, and stated that he only visited the property on 21.12.2025 accompanied by the land surveyor to conrm the ownership of the suit parcel, and the visit was peaceful. He admitted that his family was not in possession of the suit land, but averred that the mandatory time period to found adverse possession had not lapsed. By his account, the Plainti’s occupation of the suit land commenced two years ago, and having failed to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5771/eng@2026-09-24 2

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prove possession for 12 years, the Plainti had not proved a prima facie case, hence the 1st Respondent has a right to enforce her proprietary rights thereon. 8. The 2nd Defendant denied issuing any threats to demolish the structures on the land or evict the Plainti. He explained that the surveyor spoke to Eric Kipsana who had claimed to be the owner and he promised to provide his ownership documents. He alleges that after the visit, he reported the matter to the Ainabtich Police Station. Further, that on 25.11.2025 he reported the matter to the area chief, Chepkoilel Location, who summoned Eric Kipsaina and he came and claimed that they had erroneously used the land, thus he would provide alternative land. He avers that there is no evidence that the Plainti reported the purported threats to the police or other relevant authorities. 9. The 2nd Defendant states that he has always been amenable to settlement of the matter as suggested by the Plainti and her brother. He urged that the law does not protect interest in land acquired fraudulently. He claimed that the Plainti was not entitled to the orders sought as her hands are tainted with illegality. He urged that the Surveyor’s report dated 23.03.2026 shows that the parties were mistaken as to their rightful parcels of land and documents the peaceful nature of the visit. 10. The 1st Defendant/Respondent also led a Replying Adavit dated 23.03.2026 opposing the Plainti’s Application. She conrmed that she purchased the suit property from Susan Njeri, who showed her the position of the land, and that she obtained a title deed in 2007. That sometime in 2025, Andrew Njenga, the son of the late Charles Njenga, called her husband regarding the suit parcel of land. That her husband engaged the services of the Uasin Gishu County Surveyor and it was established that the said Susan Njeri had shown her parcel No. Uasin Gishu/Kimumu Settlement Scheme/1408 instead of 1404. That her family had therefore erroneously been utilising parcel no. 1408. She deponed that she had visited the suit property and found that the Plainti had hurriedly began erecting some structures thereon. 11. The 1st Defendant denied the alleged 12-year possession by the Plainti, and averred that she had been frequenting the area and claimed that the Plainti begun her stay two years ago when she started putting up buildings. She thus averred that the Plainti had not demonstrated a case for adverse possession. She denied the alleged threats to demolish the structures and that no evidence of such violence has been presented. She accused the Plainti of seeking to fraudulently and unjustly acquire her land before the mandatory period of 12 years. That the Plainti, through her brother Eric Kipsaina, attempted to settle this matter out of court, but when they attended a meeting with them, they were instead served with summons in this suit. 12. The 1st Defendant claims that the Plainti and her brother are still attempting to negotiate a settlement with them, arguing that they were also shown a wrong parcel. The 1st Defendant averred that the Land Registration Act neither protects nor sanctions fraudulent dealings, especially when a party misrepresents facts to unjustly enrich themselves. She also claimed that the application was made in bad faith and on misrepresentation of facts aimed at defrauding her of her lawfully acquired land. As proof of the said misrepresentation, the 1st Defendant pointed to ground 3 and 5 of the Motion where the Plainti has alleged that she was deceased yet she was still alive. The 1st Defendant thus asked that the application be dismissed with costs. Submissions: 13. This court directed that the present application be canvassed by way of written submissions and the parties have complied. The Plainti’s submissions are dated 28.07.2026 while the Defendants’ submissions are dated 22.06.2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5771/eng@2026-09-24 3

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The Plainti/Applicant’s Submissions; 14. Counsel for the Plainti submitted that the Applicants have been in possession of the suit property for a period in excess of 12 years and now claim to have acquired it by way of adverse possession. Counsel cited Section 28 of the Land Registration Act which recognises overriding interests such as interests that are in the process of being acquired by virtue of written law or by prescription. Counsel submitted that the Plainti had utilised the land since 2009 and had annexed photographs showing extensive developments. That there was also an Adavit sworn by her brother evidencing her occupation thereof until 2021 when the Respondent sent them notice to vacate. Counsel pointed out that the Defendants had admitted that they had never utilised the land thus their title had been extinguished and he relied on Mtana Lewa vs Kahindi Ngala Mwagandi (2015) eKLR. 15. As regards the injunction sought herein, Counsel submitted that the guiding principals were settled in Giella vs Cassman Brown (1973) EA 358 and Nguruman Limited vs Jan Bonde Nielsen & 2 Others CA No. 77 of 2012 (2014) eKLR. On the rst requirement of a prima facie case, Counsel submitted that the court is not required to delve into substantive issues and make nal conclusions before hearing the oral evidence. Counsel relied on Mrao Ltd vs First Americn Bank of Kenya Ltd (2003) eKLR and Vivo Energy Kenya Limited vs Maloba Petrol Station Limited & 3 Others (2015) eKLR. He further submitted that the Plainti has extensively developed the suit property as shown in the annexed photographs. 16. On the requirements of irreparable injury and balance of convenience, Counsel relied on the denitions given in the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR. Counsel submitted that the balance of convenience tilts in maintaining the status quo as enshrined by rule 28(K) of the Practice Directions in the Environment and Land Court. Counsel further relied on the case of Mbuthia vs Jimba Credit Corporation Ltd (1988) KLR and asked that the application be allowed with costs. The Defendants/Respondents’ Submissions; 17. In the Defendant’s submissions, Counsel submitted that the law on injunctions is Order 40 Rule 1 of the Civil Procedure Rules and that an applicant must meet the conditions set out in Giella vs Cassman Brown (supra). Counsel submitted that the Plainti had not demonstrated a prima facie case. Counsel argued that merely annexing photographs does not indicate the 12-year statutory period has been attained to prove prima facie case. On irreparable harm, Counsel submitted that having failed to prove a prima facie case, the Plainti stood to lose nothing. Counsel added that the Plainti was a trespasser who holds no rights over the suit land since the 1st Defendant’s title has yet to be extinguished. 18. Counsel opined that the Plainti cannot therefore be said to suer irreparable loss in the absence of demonstrable rights. Counsel refuted the allegation of threatened eviction, stating that the 2nd Defendant only visited the land on 25.11.2025 in the company of a surveyor. Counsel submitted that the problem with the identities of the parcels of land was captured in the survey report. Counsel reiterated the Defendants’ averments that the Plainti and her brother had been pursuing an amicable settlement geared towards an exchange of the 1st Defendant’s parcel with the Plainti’s parcel no. Uasin Gishu/Kimumu Settlement Scheme/4716. 19. Counsel further argued that the Defendants were committed to pursuing a lawful conclusion of the dispute having reported it to the police and local administration. That in any event, there was no proof of the alleged violence or that the Plainti reported the same to the police or any other relevant authority. Owing to the foregoing, Counsel submitted that the balance of convenience favours the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5771/eng@2026-09-24 4

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dismissal of the suit since the 1st Defendant, who is the registered owner of the suit property, risks losing her land to a party seeking to acquire it through misrepresentation of facts. Counsel thus prayed that the present application be dismissed with costs. In support of his submissions, Counsel relied on Mrao vs First American Bank of Kenya & 2 Others (supra), Nguruman Limited vs Jan Bonde Nielsen (supra), Pius Kipchirchir Kogo vs Frank Kimeli Tenai (supra). Analysis and Determination: 20. I have considered the Notice of Motion application with its supporting adavits, the replying adavits and the submissions led by Counsel on behalf of the parties. The issues for determination are:i. Whether a temporary injunction should be granted pending the hearing and determination of the main suit; ii. Who shall bear the costs of this Application? a. Whether a Temporary Injunction should be Granted Pending the Hearing and Determination of the Main Suit; 21. The law regarding grant of interlocutory injunctions is found in Order 40 Rule 1 of the Civil Procedure Rules, 2010 which provides as follows:- 1. Cases in which temporary injunction may be granted [Order 40, rule 1] Where in any suit it is proved by adavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the defendant threatens or intends to remove or dispose of his property in circumstances aording reasonable probability that the plainti will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit; the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks t until the disposal of the suit or until further orders. 22. This Court is taxed to critically examine and determine whether the application has any merit or not as to qualify the Plainti to the grant of a temporary injunction. In doing so, a court ought to apply the principles established in the case of Giella vs Cassman Brown & Co Limited (1973) EA 358, where the Court held that:“ The conditions for the grant of an interlocutory injunction are well settled in East Africa. First, an Applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5771/eng@2026-09-24 5

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23. The rst principle for the grant of a temporary injunction is that the applicant must establish a prima facie case with a probability of success. Under this requirement, the Plainti is required to demonstrate, on the material presented before the court, that there exists a genuine and arguable legal right that has been infringed or is under threat of infringement, warranting the court’s protection. This principle ensures that the court does not grant the equitable remedy of an injunction where the claim is frivolous, speculative, or without legal merit. 24. A prima facie case does not require the applicant to prove the case conclusively at the interlocutory stage; rather, it is sucient to show that there is a serious question to be tried and that the claim has a real likelihood of succeeding at the full hearing. In the case of Silvester Momanyi Marube vs Guizar Ahmed Motari & Another (2012) eKLR, Odunga J. (as he then was) held that:“ In determining this application, I am well aware that at this stage the court is not required to make any conclusive or denitive ndings of fact or law, most certainly not on the basis of contradictory adavit evidence or disputed propositions of law and that in an application for injunction although the court cannot nd conclusively who is to be believed or not, the court is not excluded from expressing a prima facie view of the matter and the court is entitled to consider what else the deponent to the supporting adavit has stated on oath which is not true.” 25. In the present case, the 1st and 2nd Defendant have acknowledged that the Plainti is in possession of the suit property herein. The Plainti claims that she has had such possession since 2009, which is in excess of the 12 years required in the Limitation of Actions Act. The Defendants however claim that even though the Plainti has been in possession of the suit property, she has only been there for the last two years, which period is not sucient to demonstrate a prima facie case or found a claim for adverse possession. 26. It goes without saying that one of the requirements for adverse possession is actual possession of the subject land. The Plainti herein claims that she is in possession of the suit land and has acquired the same by way of adverse possession. The Defendants have also admitted that the Plainti is indeed currently in possession of the suit property herein. In addition, this court has looked at the photographs, which show an older structure that is possibly the rental house, as well as an upcoming structure still under construction. This, coupled with the admission by the Defendants, leaves no room for this court to doubt that the Plainti is in actual possession of the land. 27. As indicated earlier, the court at this stage is not required to determine the merits and demerits of the Plainti’s claim. Therefore, this court is not mandated at this point to determine whether indeed the Plainti has met the 12-year requirement for adverse possession. That is a matter to be determined after the trial upon hearing the evidence of the parties. The court is only required to determine whether the Plainti has established a prima facie case as regards the alleged occupation of the land. And going by the above analysis, it is clear that the Plainti does meet the requirement of a prima facie case with a probability of success. 28. Secondly, a party seeking an injunction must also demonstrate that they stand to suer irreparable injury that cannot be compensated by way of damages. In Nguruman Limited vs Nielsen & 2 others (2014) KECA 606 (KLR), irreparable injury was dened as follows:“ 29. On the second factor, that the applicant must establish that he “might otherwise” suer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5771/eng@2026-09-24 6

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the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 29. On this requirement of irreparable harm, the Plainti herein claims that the 1st Defendant has issued a notice to vacate the land. The Plainti is anxious that in fullling their intention to have her vacate the land, the Defendants may hire goons, and in the process, cause damage to the property and evict the tenants currently living in the rental buildings on the suit property. 30. I must point out that I have not seen any evidence of a notice to vacate the suit property issued to the Plainti herein. Notably, however, the Certicate of Ocial Search dated 27.11.2025 and the register to the suit property also presented do prove that the suit land does belong to the 1st Defendant herein. However, the property is developed by the Plainti, and these developments are also acknowledged in the survey report annexed by the Defendant. 31. Even in the absence of proof of the alleged threats, it is not in doubt that being the registered owner of the suit property, the 1st Defendant would indeed be entitled to take possession over the suit property and assert her rights thereon. This cannot be done without the Plainti leaving the land or being evicted therefrom. Having developed the suit property, the Plainti would indeed stand to suer substantially if this is allowed to happen. 32. I also note that the Survey Report placed before this court indeed acknowledges that there was a mixup as regards the parcels of land currently occupied by the parties herein. While the Defendants claim that there has been attempts at reaching an amicable settlement out of court, no proof of this was tabled before this court. In addition, no invitation to nor minutes evidencing any alleged meetings or intended exchange agreement of the property belonging to the Plainti and the suit property herein has been availed. Consequently, the Court nds that the Plainti has established that she is likely to suer irreparable loss and/or injury which cannot be adequately compensated by an award of damages. 33. On the balance of convenience, I will to refer to the case of Amir Suleiman vs Amboseli Resort Limited (2004) eKLR, where Ojwang, Ag. J (as he then was), elaborated on what a “balance of convenience” means by stating that:“ The Court in responding to prayers for interlocutory injunctive reliefs, should always opt for the lower rather than the higher risk of injustice.” 34. The Plainti has demonstrated a prima facie case and that she stands to suer irreparable harm if the orders are not granted and she is eventually removed from the land. Therefore, with regard to the balance of convenience, this court is satised that the same tilts in favour of the Plainti, who should be given the chance to prove whether she has indeed acquired any proprietary rights over the suit property by adverse possession. In conclusion, the Court nds that the Plainti is entitled to the orders sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5771/eng@2026-09-24 7

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b. Who shall bear the costs of this Application? 35. Under Section 27(1) of the Civil Procedure Act (Cap 21), costs follow the event, which means that the winning party is automatically awarded costs at the expense of the losing party. The said provision further provides that the award of costs is strictly within the court’s discretion. In exercise of this discretion, the Proviso to Section 27(1) allows a court to deviate from this general rule where there is a good reason to order otherwise. 36. In this instance, the Plainti has indeed succeeded in prosecuting the application. However, noting that the suit herein is yet to be heard, and parties are also yet to undertake pre-trial directions, I am convinced that justice is served if costs abide the outcome of the suit. Orders:37. The upshot is that the Plainti’s Notice of motion application dated 4th December, 2025 is hereby allowed and I make the following orders:- 38. a. An order of temporary injunction be and is hereby issued restraining the respondents jointly and severally whether by themselves, their servants, agents and or assigns from trespassing, entering, interfering and or evicting the applicant from land parcel No. Uasin Gishu/Kimumu Settlement Scheme/1404 currently being utilised by the Plainti/Applicant pending hearing and determination of the suit, and the OCS Kapsoya Police Station ensures compliance of the orders. b. The costs of this application shall abide the outcome of the suit. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 24TH DAY OF SEPTEMBER, 2026 VIDE MICROSOFT TEAMS. HON. C. K. YANO JUDGE In the virtual presence of:Ms. Mutunga for the Defendants. Mr. Bundotich Korir for Plainti/Applicant. Court Assistant - Laban. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5771/eng@2026-09-24 8

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