Ernest Mwakoi vs John Leon Mwasi and Sisters of St Joseph Tarbes

service thereof be dispensed with in the first instance. 2. Pending the hearing and determination of this Application, this Honourable Court be pleased to issue an order of inhibition restraining the Land Registrar, whether by themselves, their officers, servants or agents, from registering any dealings in respect of the suit land, being all that parcel of land originally known and identified as Plot No. 884 within the former Mwachabo Settlement Scheme, Taita Taveta County, together with all parcels resultant and derived therefrom, including but not limited to Land Parcel No. TAITA TAVETA/MWACHABO SCHEME PHASE 1/1788. 3. Pending the hearing and determination of this Application, a temporary injunction do issue restraining the 1st and 2nd Respondents, whether by themselves, their agents, servants or assigns, from interfering with the suit land by selling, transferring, charging, leasing, fencing, developing, entering upon, wasting, or in any other manner. 4. Pending the hearing and determination of this suit, a temporary injunction does issue restraining the Respondents, whether jointly or severally, from alienating, disposing of, or otherwise interfering with the suit land in any manner inconsistent with the Applicant's occupation, possession, and claim. 5. The Land Registrar be directed to place and maintain an inhibition entry against the register or registers relating to the suit land, pending the hearing and determination of this suit. Page 2 of 19

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6. Tthe costs of this Application are in the cause.” 3. The Application is supported by grounds on face of the motion and a affidavit sworn by Ernest Mwakoi on 19.12.2025 as a duly appointed administrator ad litem of the Estate of the late Mwadime Mwatighina, the original allottee of the suit property under Plot No. 884 within the Mwachabo Settlement Scheme. 4. The Applicant averred that the land been in the Applicant’s family for generations and has been openly, continuously and peacefully occupied and utilised for residence, cultivation, grazing and other customary purposes. 5. The Applicant contends that, notwithstanding the family’s longstanding occupation and the original allocation, the 1st Respondent, John Leon Mwasi, subsequently procured registration of the suit property in his name and caused it to be subdivided, with part thereof being transferred to the 2nd Respondent, (the Sisters of St. Joseph Tarbes). The Applicant disputes the root and validity of the 1st Respondent’s title and maintains that the registration and subsequent transfer occurred while the family’s claim to the land remained unresolved. 6. The Applicant further averred that his late uncle, Chrispine Mwamburi, had previously raised the family’s claim with the relevant settlement and adjudication authorities, including through correspondence dated 27 February 2012, but the dispute was not resolved. Upon subsequent learning of the registration and transfer, the Applicant attempted to lodge a caution and obtain official searches from the Wundanyi Land Registry, but alleges that those efforts were unsuccessful. 7. The Applicant contended that the family’s longstanding occupation is known within the local community and is capable Page 3 of 19

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of verification by the local Chief, neighbouring residents and other persons familiar with the history of the land. He further averred that the family has invested labor, funds and improvements on the suit property over the years. 8. The Applicant contends that there are triable issues concerning the root of title, validity of the registration and transfer, and the respective interests of the parties in the suit property. He is apprehensive that further dealings, development or alienation of the land may alter its character and prejudice the subject matter of the proceedings. He seeks preservation of the suit property and maintenance of the status quo pending the hearing and determination of the suit. 9. In response to the Application, the 1st Respondent, John Leon Mwasi, states in his Replying Affidavit dated 20 January 2026 that he is the lawful and absolute registered proprietor of the suit property. 10. The 1st Respondent denies the Applicant's claim that the property was irregularly acquired, affirming that Plot No. 30 (measuring approximately 9.28 hectares at Mwachabo Squatter Settlement Scheme) was formally allocated to him by the Government of Kenya through the Settlement Fund Trustees (SFT) via a Letter of Offer dated November 4, 2011 (Ref: AS/C/145(30)). 11. The 1st Respondent urged full compliance with the allotment terms, having paid the required purchase price of Kshs. 59,828.16, which led to the lawful adjudication, boundary confirmation, and issuance of a Title Deed (TAITA TAVETA/MWACHABO SCHEME PHASE 1/1788 covering 5.75 hectares). Thereafter, he lawfully exercised his proprietary rights by selling and transferring the 5.75-hectare parcel to the 2nd Defendant/Respondent (Sisters of St. Joseph Tarbes) for Kshs. Page 4 of 19

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3,552,063/=, making them a bona fide purchaser for value without notice of competing claims. 12. Regarding the Applicant’s assertion of customary or ancestral rights, the 1st Respondent contends that once land is designated a Settlement Scheme, it is strictly governed by statutory settlement laws and Settlement Fund Trustee administration, requiring all customary claims to be submitted during the official adjudication period, which the Applicant's family failed to do. Consequently, the 1st respondent asserts that the Applicant has failed to establish a prima facie case with a probability of success, and that the balance of convenience tilts in favor of protecting his indefeasible title and long-standing ownership. He prays for the dismissal of the Notice of Motion with costs. 13. In opposition to the Application, the 2nd Defendant/Respondent filed a Replying Affidavit sworn on 22.05.2026 by Mary Wangui Wairagu, an accountant appointed by and competent to depose on behalf of the 2nd Respondent. The 2nd Respondent opposes the application, characterizing it as malicious, misconceived, devoid of merit, and an abuse of the court process. 14. The 2nd Respondent deponed that it purchased the parcel of land known as TAITA TAVETA/MWACHABO PHASE 1 SCHEME/1788 directly from the 1st Respondent for a consideration of KShs. 3,552,063/=, which consideration was paid in full. This is after conducting due diligence by visiting both the Land Registry and the physical site, establishing that the subject land was vacant, overgrown with thick bushes, and devoid of any homesteads or farming activities, directly countering the Applicant’s claims of continuous occupation. 15. The 2nd Respondent maintains that it is a bona fide purchaser for value without notice and contends that the Applicant possesses no valid claim, interest, or right over the property, Page 5 of 19

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labeling the Applicant as an invader encroaching upon ownership rights. It is further deponed that granting the conservatory and injunctive orders sought would severely prejudice and disrupt the 2nd Respondent’s plans and intended use of the land. On these grounds, the 2nd Respondent prays for the outright dismissal of the Application dated 19th December 2025 with costs. B. Directions of the Court: 16. On 18 June 2026, the Court directed that the Applications dated 19 December 2025 and 15 June 2026 be canvassed by way of written submissions and fixed the matter for mention on 23 July 2026 for compliance. 17. On 23 July 2026, by consent of the parties, the Application dated 15 June 2026 was allowed, with costs in the cause. The Application sought, inter alia, the joinder of the Settlement Fund Trustees, the Land Registrar, Taita Taveta County, the Director of Land Adjudication and Settlement, and the Director of Surveys as the 3rd to 6th Defendants, respectively, and leave to file a Further Amended Plaint. The Court extended orders for maintenance of the status quo. 18. The parties dispensed with filing of written submissions . C. Issues for determination: 19. Upon considering the Application, the Replying Affidavits, the Annexures and the Court’s record, the following issues arise for determination:Whether the Applicant has satisfied the conditions for the grant of temporary injunctive orders 1. 2. (I) Who shall bear the costs of the Application? Whether the Applicant Page 6 of 19 has satisfied the

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conditions orders. for the grant of temporary injunctive 20. The Plaintiff/Applicant moved the court for temporary and prohibitory orders to issue against the respondents pending hearing and determination of the suit. The law relating to injunctions is provided under order 40 (1) (2) of the Civil Procedure Rule which provides as follows: 1. Where in any suit it is proved by affidavit or otherwise— 1. 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 2. that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff 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 fit until the disposal of the suit or until further orders. 2.Injunction to restrain breach of contract or other injury [Order 40, rule 2] In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from 1. Page 7 of 19

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committing the 3.breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right. 2. The court may by order grant such injunction on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court deems fits” 21. Sections 68 & 69 of the Land Registration Act, 2012 which provides for power of the court to inhibit registered dealings as follows:(1) The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge. (2) A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register. (3) An inhibition shall not bind or affect the land, lease or charge until it has been registered. 69. Effect of inhibition So long as an inhibition remains registered, any instrument that is inconsistent with the inhibition shall not be registered.” 22. The court in a persuasive decision of Dorcas Muthoni & Page 8 of 19

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2 others v Michael Ireri Ngari [2016] KEHC 6213 (KLR) stipulated:“Looking at the substance of this application, it is, as I have indicated above, basically seeking an order of inhibition because the plaintiff/applicants fear that the land subject of this suit may be sold before the case is heard and determined. An order of inhibition issued under Section 68 of the Land Registration Act is similar to an order of prohibitory injunction which bars the registered owner of property under dispute from registering any transaction over the said property until further orders or until the suit in which the said property is a subject is disposed off. The Court issuing such an order must be satisfied that the applicant has good grounds to warrant the issuance of such an order because, like an interlocutory injunction, such an order preserves the property in dispute pending trial. … Guided by the principle that the Court should always take the course that carries the lower risk of injustice – FILMS ROVER INTERNATIONAL & OTHERS VS CANNON FILMS SALES LTD 1986 3 ALL E.R 772 - it is my view that the injustice that would be caused to the defendant/respondent if the plaintiff/applicants were granted the prayer of inhibition and later failed at the trial outweighs the injustice that would be caused to the plaintiff/applicants if the prayer for inhibition was dismissed and they succeed in proving their case. Balancing the two competing interests, the cause of justice will best be served if the order of inhibition is granted. Since each of the parties claim to be in possession of the property subject of this suit, an order of inhibition will not affect those rights but serve the greater interest by preserving the said land while their proprietary interests are determined.” Page 9 of 19

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23 Section 13 (7) (a) of the Environment and Land Court Act, 2015 further mandates this court to grant interim preservation orders; including an interim order of injunction in the nature sought herein. From the cited decided cases and statutory provisions an order of inhibition, serves to preserve the subject property pending determination of the dispute. .24. The case of Giella vs Cassman Brown and Co ltd (1973) EA358 settled the principles for granting orders of injunction as follows “a). where he is required to demonstrate that he has a prima facie case with serious triable and arguable issues with a probability of success against the respondent. The test on prima facie case does not mean establishing a case beyond reasonable doubt; b). He will suffer irreparable harm/injury which cannot be adequately compensated by damages; c). Balance of convenience: In granting an injunction under this condition the court must be satisfied that the hardship or inconvenience which is likely to be caused to the applicant by declining the injunction will be greater than that which is likely to be caused to the respondent.” 25. The principles applicable for consideration when dealing with an application for granting a temporary order of injunction are settled as follows: The Applicant must demonstrate a prima facie case with a probability of success; establish he is likely to suffer injury which cannot adequately be compensated by an award of damages; and, where the Court remains in doubt, determine Page 10 of 19

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the application on a balance of convenience. (i)Whether the applicant has established a prima facie case with a probability of success? 26. The Court of Appeal in Mrao Ltd vs First American Bank of Kenya Ltd & 2 Page 11 of 19

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(Supra) 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.” 27. In the present case, the Applicant's claim is founded upon alleged customary and ancestral rights over land originally identified as Plot No. 884 within the Mwachabo Settlement Scheme. It is contended that the Applicant's family has been in longstanding occupation and use of the suit land and that the subsequent allocation, registration and transfer of the resultant parcel to the Respondents was irregular and unlawful. The Respondents, on the other hand, rely upon the 1st Respondent's allocation by the Settlement Fund Trustees, the subsequent adjudication and registration of Land Parcel No. TAITA TAVETA/MWACHABO SCHEME PHASE 1/1788 in his name, and its subsequent transfer to the 2nd Respondent as a bona fide purchaser for value without notice. 28. The Court is confronted with competing claims by the parties to the suit property which cannot be resolved by mere reference on the existence of a registered title. The Applicant has raised questions challenging the root of the 1st Respondent's title, including the alleged prior customary occupation and allocation of the land, the regularity of the Settlement Fund Trustees' allocation, the process through which the parcel was adjudicated and registered, and the circumstances in which it was subsequently transferred to the 2nd Respondent. The issues Page 12 of 19

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raised by the applicant cannot be determined on affidavit evidence at the interlocutory stage. 29. Of particular significance is the dispute concerning the parties' competing claims to possession of the disputed property. The Applicant asserts longstanding occupation, cultivation and use of the suit land, including the existence of permanent structures and an ancestral homestead. The 2nd Respondent, conversely, maintains that upon conducting due diligence it found the land vacant, overgrown and without evidence of occupation or farming. These conflicting assertions raise triable issues for hearing and determination at the main suit, not the interlocutory stage. 30. Further, the Applicant relies upon alleged efforts by his family to raise the dispute with the relevant settlement and adjudication authorities, including correspondence said to have been made in 2012.Equally, the contention that the family failed to lodge a formal objection during the adjudication process is a matter which cannot, without examination of the applicable records and evidence, be treated as conclusively extinguishing any right or interest that may otherwise be established in law. 31. The Court is mindful that a registered title is accorded statutory protection. Nevertheless, registration does not, by itself, foreclose an inquiry into the legality or propriety of the acquisition where the root of title is challenged. 32. whether 1st Respondent's allocation was irregular, and whether 2nd Respondent acquired the property as a bona fide purchaser for value without notice, are substantive questions reserved for hearing and determination of the main suit, not interlocutory stage. The Court is only required to determine whether the material placed before it discloses a genuine and Page 13 of 19

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arguable case warranting preservation of the subject matter. 33. On the material before it, the Court is satisfied that the Applicant has raised triable issues concerning the root of the title, the alleged prior occupation and customary claim, the regularity of the allocation and registration, and the subsequent transfer to the 2nd Respondent. The Court therefore finds that a prima facie case has been established for purposes of the present application. The finding is, however, interlocutory and shall not be construed as a determination of the parties’ substantive rights. (ii)Whether the Applicant will suffer irreparable injury/harm that cannot be compensated in damages. The burden lies with the applicant to demonstrate the nature and extent of the substantial injury likely to be suffered. The court in Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) defined what amounts to an irreparable injury as follows; “Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury. The defendant has been collecting rent since the year 2005 and therefore the issue of irreparable harm if injunction is not granted should not arise so long as the matter is fast-tracked for hearing.” 34. In the present matter, the Applicant asserts a longstanding familial and customary connection with the land and alleges continued occupation, cultivation and the existence of an Page 14 of 19

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ancestral homestead and permanent structures thereon. If established at trial, the threatened eviction, fencing, development, subdivision or further alienation of the property may substantially alter the character and use of the land and interfere with the very subject matter upon which the Applicant's claim is founded. 35. The Court is therefore satisfied that the apprehended prejudice cannot be quantified monetarily hence the irreparable loss to be suffered by applicant if the suit property is not preserved pending hearing and determination of the suit. The preservation of the suit property in its present state is consequently necessary to ensure that the Court's eventual determination is not rendered ineffectual. It is the court’s findings that the Applicant has demonstrated sufficient apprehended prejudice to satisfy the second limb of the applicable test. 36. In whose favor does the balance of convenience tilt? Having reached that conclusion, it becomes necessary to consider the balance of convenience. This entails determining where the greater risk of injustice lies if the Court grants or withholds the interlocutory relief. At this stage, the Court should not make definitive findings on the merits of the substantive dispute but should adopt an approach that preserves the subject matter pending trial. In Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) the Court of Appeal explained that: “26. In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; 1. establish his case only at a prima facie level, demonstrate irreparable injury if a temporary injunction is not granted, and 2. Page 15 of 19

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ally any doubts as to (b) by showing that the balance of convenience is in his favor. 3. 27. These are the three pillars on which rests 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. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. 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 is 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 Page 16 of 19

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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. 28. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.” 37. In the circumstances of this case, the competing interests are clear. The 1st Respondent relies upon a registered title and the 2nd Respondent upon a subsequent purchase for value. Those interests are entitled to protection. On the other hand, the Applicant asserts longstanding possession and a customary and ancestral claim whose validity remains to be determined. 38. The Court is therefore persuaded that the appropriate course is to preserve the property rather than permit further dealings with it before the competing claims have been fully determined. Granting an injunction will not determine the Respondents' proprietary rights; it will merely restrain further interference with the property pending trial. Conversely, declining the injunction may permit further development, subdivision, transfer or alienation, thereby changing the character of the property and potentially complicating the enforcement of the ultimate judgment. The balance of convenience accordingly lies in preserving the subject matter pending hearing and Page 17 of 19

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determination of the suit. ISSUE 2: Who shall bear the costs of the Application? 39. Whether costs should be in the cause or awarded to the successful party. Section 27 of the civil procedure act provides that costs follow events though the court retains the discretion to award costs to the successful party or not depending on the circumstances of the case as replicated in the case of Rai & 3 others v. Rai & 4 others [2014] KESC 31 (KLR) . 40. From the foregoing, the question of costs in this matter is a pure discretion of the Court. This Court finds it appropriate to order that the costs of this application abide by the outcome of the main suit. C.Final Orders Accordingly, the Court hereby finds the application meritorious and allow it on following terms: a.Pending the hearing and determination of this suit, a temporary injunction is hereby issued restraining the Respondents, whether jointly or severally, from alienating, disposing of, or otherwise interfering with the suit land (Land Parcel No. TAITA TAVETA/MWACHABO SCHEME PHASE 1/1788) in any manner inconsistent with the Applicant's occupation, possession, and claim. b.The Land Registrar Taita/Taveta county is hereby directed to register and maintain an inhibition against the register or registers relating to the suit land (Land Parcel No. TAITA TAVETA/MWACHABO SCHEME PHASE 1/1788) pending the hearing and determination of this suit. Page 18 of 19

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c.Costs of the application to abide the outcome of main suit. It is ordered accordingly. Dated, Signed and Delivered on this 23rd day of September 2026 at Voi HON. J. A. ORWA JUDGE In the presence of: Mr. Marima for the Plaintiff/Applicant Mr. Ratemo for 1st Defendant Mr. Mlizanza for 2nd Defendant Letisiah - Court Assistant Page 19 of 19

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