Samuel Kamuhia Kiiru v Paul Wagura Githinji & 6 others

1. The brief background to the litigation herein is that Francis Mwangi Ngera filed a suit CM ELC E075 OF 2024 before the Chief Magistrates court through a plaint dated 8.10.2024 seeking orders of eviction of Samuel Kamuhia Kiiru from parcel Euaso Nyiro Suguroi/ Block/ VII/126. Thereafter, Samuel Kamuhia Kiiru filed an Originating Summons suit No OS E001 OF 2025 before this court seeking orders of adverse possession against Francis Ngera and 5 others in respect of parcel Euaso Nyiro/Suguroi/Block V11/9 including the resultant subdivisions like Euaso Nyiro Suguroi/ Block/ VII/126. Vide a ruling dated 12.3.2025, this court transferred the suit before the magistrates court to this court where it was consolidated with the Originating summons suit, with the former suit for eviction being the lead suit while the latter suit on adverse possession became the counter claim. 2. At paragraph 8 of the said ruling the court noted that; “on the injunctive orders sought by the parties under Order 40 of the Civil Procedure Rules, again this court need not re-invent the wheel. It is pertinent to note that the current plaintiff is in possession of the suit land going by the orders of eviction ELCLC NO E012 OF 2025 [RULING] Page 2 of 9

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sought by one Francis Ngera in the older suit. In order to achieve the overriding objective set out under Section 1A (1) of the Civil Procedure Act, the court gives a blanket order of maintenance of status quo (ground as well as registration status) in terms of the provisions of Section 63(e) of the Civil Procedure Act.” 3. The defendant/Counterclaimant was to file an application dated 11.4.2025 seeking the following orders; “ 1. Spent 2. Pending hearing and determination of this application, this Honourable court be pleased to issue an order compelling Mr. Francis Mwangi Ngera and his agents to immediately vacate the suit property and stop interfering known as Title number Euaso Nyiro/Suguroi/Block VII/9. 3. Mr. Francis Mwangi Ngera, the 3rd defendant/respondent herein do appear before this Honourable court and show cause why he should not be cited for contempt of court for disobeying the court order issued on 12 th March ELCLC NO E012 OF 2025 [RULING] Page 3 of 9

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2025 for maintenance of status quo with respect to the suit property. 4. This honourable court be pleased to find and hold that Mr. Francis Mwangi Ngera, the 3rd defendant is in contempt and has disobeyed the order the court issued on 12th March 2025. 5. Mr. Francis Mwangi Ngera be punished for contempt of court for a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years or to both. 6. Mr. Francis Mwangi Ngera be ordered to pay the costs of reconnection of heater and replacement of the water meter number CA12 and of its replacement meter upon an invoice being issued by the water provider. 7. That costs of this application be borne by the 3rd defendant/respondent.” 4. The aforementioned application is the subject of this ruling. The applicant contends that the plaintiff and his agents forcefully entered the suit land, occupied the same and engaged in acts of vandalism where he even disconnected ELCLC NO E012 OF 2025 [RULING] Page 4 of 9

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the water systems. The applicant reported the matter to the nearest police station. The applicant therefore contends that there is a need to punish the plaintiff for contempt of the court orders issued on 12.3.2025. 5. In opposition thereof, the plaintiff filed a replying affidavit dated 3.5.2025 where he denies the allegations made against him and avers that he is in occupation of the suit parcels of which the two houses on the land are occupied by his employees. 6. I have considered the arguments proffered herein including the rival submissions. I decline to grant the orders sought for two main reasons. 7. The first issue relates to the crux of the dispute which is occupation of the suit parcels. For the court to delve into the merits of the application, the court would need to interrogate the nature and extent of the occupation of the land by either party. It is pertinent to note that there being a claim of adverse possession in this matter, the issue of nature and extent of occupation will form the fundamental question for consideration in the final determination. Delving into the said ELCLC NO E012 OF 2025 [RULING] Page 5 of 9

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issue at the interlocutory stage may pre-empt the overall determination of the matter. 8. The applicants have flagged out the wordings of this court at paragraph 8 of the ruling of 12.3.2025 to buttress their point that they are in occupation of the suit land, hence the plaintiff should be evicted and should also be held to be in contempt of the court orders. However, the court only made a note that sought by observation “ going by the orders of eviction Francis Ngera”. A note is simply an and not a finding based on analysis of the evidence tendered by the parties. It is not lost to this court that based on the various arguments proffered in respect of the application of 11.4.2025, the court found it expedient to order the filing of a scene visit report by the Deputy Registrar of this court with a view of establishing “ the nature and extent of the developments on the suit land”. This again buttresses the point that the question of how the land has been utilized over the years, by who and how will be a fundamental question for determination in the final analysis. 9. The overriding objective set out under the Civil Procedure Act entreats the courts to act justly in every situation as was ELCLC NO E012 OF 2025 [RULING] Page 6 of 9

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stated in Harit Sheth Advocate -vs- Shamas Charania – Civil Appeal No. 68 of 2008 Limited v MFI cited in Crown Beverages Document Solutions Limited [2022] KEHC 2231 (KLR). The justice of the day demands that the court should not determine the question of occupation of the land at this stage of the trial. . 10. The second issue concerns the need to invoke Active Case Management principles in order to achieve the overriding Objective set out at Article 159 2 (b) Constitution and of the section 1A and 1B of the Civil Procedure Act. In the case of Lawrence Kinyua Mwai v Nyariginu Farmers Co Ltd & another [2019] eKLR, the court had this to say on the issue of Active Case Management; “ In exercising its judicial authority this court has a duty to facilitate just and expeditious determination of proceedings. One of the cardinal principles in our constitution is “the expeditious delivery of justice” –see Article 159 (2) (b) of the Constitution of Kenya, which in ELCLC NO E012 OF 2025 [RULING] Page 7 of 9

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effect codifies the 17th century maxim “Justice delayed is justice denied”. 11. The court further went on to state that; “Active Case management enhances processing efficiency, promotes court control of cases, and provides judicial officers with the tools that may be used to dispose off a case efficiently. These techniques reduce delays and case backlogs, and provide information to support the strategic allocation of time and resources - all of which encourage generally better services from courts”. 12. This is a situation whereby in the ruling of 12.3.2025, the court marked as spent all the pending applications and proceeded to conduct pre trial proceedings thereafter on 8.7.2025. The hearing of the case is now underway of which strategic allocation of time has been made whereby plaintiff’s case is slated to be heard on 28.9.2026 while defence case is to be heard on 29.9.2026. It follows that the expeditious disposal of the substantive issues is now at the ELCLC NO E012 OF 2025 [RULING] Page 8 of 9

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horizon, but this can be derailed by interlocutory proceedings which are anchored on applications. 13. In light of the foregoing, the application dated 11.4.2025 is disallowed. Each party shall bear their own costs of the application. DATED, SIGNED AND DELIVERED AT NANYUKI THIS 28TH DAY OF SEPTEMBER, 2026 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Consolata – C/A Muchiji for defendant Wahome Gikonyo for plaintiff ELCLC NO E012 OF 2025 [RULING] Page 9 of 9

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