Charles Kibasi Magembe v Kennedy Omari Atina

Applicant, pending the final hearing and determination of the main Originating Summons. b. THAT the LAND REGISTRAR, KISII COUNTY, be ordered to place an immediate restriction, caveat, or caution order on the register of LR NO. BASSI/BOGETAORIO II/1615 to block any registration of sales, transfers, or dealings pending the final outcome of this suit. c. THAT the Officer in Charge (O.C.S) ITUMBE POLICE STATION be directed to enforce compliance and maintain peace during the subsistence of these interim orders. d. THAT the costs of this Application be provided for. 2. The application is supported by grounds stated on its face and the affidavit sworn by the Applicant of even date. Inter alia, the Applicant avers that he has been in open, continuous, and peaceful possession of the 0.68HA portion since 21ST JULY 1972 following a completed land sale transaction. That he has built his permanent ancestral homestead and established his lifelong livelihood on the suit land for over fifty-four (54) years. 3. The Applicant contends that the Respondent is actively planning, negotiating, and attempting to sell and transfer the suit property to innocent third parties to permanently alter the status quo. In parallel with the sale plans, the Respondent has threatened to forcefully, unlawfully, 2

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and violently evict the Applicant and demolish his structures to hand over vacant possession to potential buyers. 4. The Respondent, vide his replying affidavit sworn in opposition to the application, deposes that the Applicant had initially, by fraudulent means, filed a succession cause which was revoked. That he is wrongly sued in this matter, considering that the suit property, LR NO. BASSI/BOGETAORIO II/1615, is registered in the names of three persons who are not litigating before this court, and that he cannot be sued on their behalf, since they are adults. 5. According to the Respondent, the Applicant is a trespasser over the suit property, LR NO. BASSI/BOGETAORIO II/1615, and that the claim is unfounded, having been determined by a competent court of law. Further, he avers that, together with his co-registered owners, they stand to be prejudiced and suffer loss and damage, as the orders sought will subject them to loss of mesne profits. He asserts that the Applicant has not given any security for undertaking as a precondition for the grant of the orders sought. He urged the Court that, if inclined to grant any such orders, the Applicant must deposit Ksh. 1 million as security for costs and loss of mesne profits. 6. Directions were issued for prosecution of the application by way of written submissions, which both parties complied with. On the issue of res judicata and jurisdiction, the Applicant submits that the dismissal of 3

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the Preliminary Objection affirmed this Court’s jurisdiction to determine the land claim and established that the Originating Summons was not barred by res judicata. 7. On the merits of the application, the Applicant relies heavily on the history and duration of his possession. He states that he was the registered proprietor of the land for approximately twenty-five years, from 1997 to 2022, before the subsequent alteration of the title through the succession proceedings. He further states that his physical possession commenced on 21st July 1972 pursuant to a sale agreement with the late Ayoma Mosansa, and that he has remained in continuous possession of the 0.68-hectare portion for approximately fifty-four years. 8. The Applicant contends that the Respondent has neither denied his physical occupation nor demonstrated that the Respondent or his conephews have occupied, cultivated or otherwise utilised the disputed portion. It is consequently argued that the Applicant’s long and uninterrupted occupation has given rise to enforceable possessory and overriding interests, which the Applicant says remain protected notwithstanding the subsequent registration of the Respondent and his conephews. 9. The Applicant further submits that he has established a strong basis for equitable protection because the disputed land contains his permanent 4

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ancestral home, which he has occupied throughout his life, as well as his livelihood and family ancestral graves. He argues that eviction, demolition or alienation of the property would render him homeless and result in the destruction or disturbance of ancestral graves, thereby occasioning harm that cannot adequately be compensated by an award of damages. 10.The Applicant characterises the Respondent and his co-nephews as persons who have never occupied or cultivated the property and contends that their attempt to change the existing status quo is primarily financial. He also challenges the Respondent’s demand for security of Kshs. 1 million and maintains that the circumstances justify preservation of the existing position pending determination of the substantive dispute. 11.The Respondent submitted that the suit property was initially part of the estate of the late Ayoma Mosansa, who died intestate on 15th July 1978, without any surviving children or a widow. The Respondent states that he subsequently obtained a grant of representation together with other beneficiaries, who were duly registered as proprietors. The Respondent alleges that the applicant fraudulently caused himself and his wife to be registered as proprietors of the entire property and has now sought an injunction against the Respondent alone, without joining the other coregistered proprietors or filing a ground report to substantiate his claim. 5

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12.On the applicable principles for grant of an interlocutory injunction, the Respondent relies on Giella v Cassman Brown and submits that the applicant has failed to establish the requisite conditions. With regard to a prima facie case, reliance is placed on Mrao Ltd v First American Bank of Kenya Ltd & 2 Others, where a prima facie case was defined as one showing an apparent infringement of a right warranting an explanation or rebuttal. On irreparable injury, the respondent cites Banis Africa Ventures Ltd v National Land Commission [2021] eKLR and submits that the applicant has not demonstrated injury incapable of adequate compensation by damages. Reliance is also placed on Said Ahmed v Mannassen Benga & Another [2019] eKLR, Aikman v Muchoki (1984) KLR 353 and Joseph Mbugua Gichanga v Co-operative Bank of Kenya Ltd (2005) eKLR for the proposition that a party should not be permitted to maintain an unlawful advantage merely because damages can be paid. 13.As regards the balance of convenience, the respondent relies on Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR and submits that the applicant has not demonstrated that the inconvenience likely to be suffered if the injunction is refused would be greater than that likely to be suffered by the respondent if it is granted. In conclusion, the respondent contends that the application fails to meet the legal threshold for an injunction and is also at variance with the amended originating summons dated 2nd July 2026. 6

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Analysis and determination: 14.My first duty is to determine whether the Applicant has demonstrated a prima facie case. He has annexed a copy of a sale agreement executed with the original owner of the land and which he says is the basis of his entry onto the suit property. The Applicant alleges that he has been on the suit premises for over 12 years and has acquired rights to own it by operation of the law. 15.The Respondent on his part asserts that the Applicant has sued him alone instead of joining his other co-owners. He also avers that the Applicant is trespassing on their land and if the orders are granted, they will suffer loss of mesne profits. Thus the Respondent does not deny the presence of the Applicant on the suit portion. The issue of non-joinder of the co-owners does not change the possession alleged, and it is an omission that can be cured by way of amendment. 16.Further, the Applicant alleged that the Respondent is actively seeking buyers and plans to sell, alienate, and transfer the suit property to third parties. To facilitate this intended sale and clear the land for prospective buyers, the Respondent has issued him direct threats to forcibly evict his family and demolish the Applicant's ancestral homes. In the replying affidavit, the Respondent did not deny this allegation. Thus, the 7

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Applicant's occupation and the direct threats demonstrate a prima facie case. 17.Will the Applicant suffer irreparable loss that cannot be compensated by way of damages? The Applicant has demonstrated that this is the place he calls home and that he has lived on the suit property over time. Should he be evicted before his case is heard, he is likely to suffer emotional and economic loss from abruptly and/or forcefully being relocated. Damages may not redeem such loss. 18.In terms of balance of convenience, I hold the same tilts in favour of the Applicant who has been in possession all along. Although the Respondent sought an undertaking to be issued should the court proceed to grant the orders sough, It is my considered opinion that the circumstances of this case do not require ordering undertaking. This is because, at the hearing of the main suit, the Respondent will have an opportunity to establish grounds for the Court to award general damages, if any, for loss of use of the land. 19.In conclusion, I hold that the application dated 16 th June 2026 is merited. It is allowed in terms of prayers 3, 4 and 5 of the motion. Costs of the application are ordered in the cause. Ruling Signed and delivered at Kisii this 24th day of September, 2026. 8

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A. OMOLLO JUDGE 9

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