Obed Kithure Kirika & 7 others v Gerald Ntari M'Mutea (Sued on his own behalf and on behalf of the estate of M'Ritara M'Mtuambae – Deceased)

behalf and on behalf of the estate of M’RITARA M’MTUAMBAE – DECEASED)...................DEFENDANT RULING 1. Before court for determination is an application by the plaintiffs dated 8/5/2026. For a better understanding of the jurisdiction which this court is invited to exercise, I will outline the contextual background to the application. 2. The eight plaintiffs in the suit are children of the late M’Kirika M’Nanjau [hereinafter referred to as “the late M’Nanjau”]. One of them, Joseph Riungu M’Kirika [the 2nd plaintiff] was the ad litem administrator of the estate of the late M’Nanjau in a preceding appeal involving the late M’Nanjau and the late M’Ritara M’Tuambae. The said appeal was disposed by this Court [L. Mbugua, J] in April 2021. The defendant is a grandson and the administrator of the estate of the late M’Ritara M’Tuambae [hereinafter referred to as “the late M’Tuambae”] . 3. Land parcel number Abogeta/Nkachie/828 measures 21 acres. It is said to have been the property of the late M’Tuambae. It was, however, registered in the name of the late M’Nanjau in 1994 pursuant to an ex-parte judgment that the late M’Nanjau procured. The ex-parte judgment was subsequently set aside. The relevant land register was, however, not rectified to restore the name of the late M’Tuambae as the registered proprietor. ELCL (OS) NO E007 OF 2026 (RULING) Page 2

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4. From 1985 to April 2021, the suit land was the subject matter of active litigation between the late M’Nanjau and the late M’Tuambae. Vide Meru SRMC Civil Case No 268 of 1985 [The case is now reflected as Meru CMC E & L Case No 268 of 1985], the late M’Nanjau sued the late M’Tuambae seeking a declaration that he was the rightful owner of the suit land, measuring approximately 21 acres. After 33 years of litigation in the Chief Magistrate Magistrate Court, the Court at Meru [H. N Ndungu – CM] rendered a Judgment in which it held that the late M’Nanjau purchased and was therefore entitled to only 12 acres out of the suit land. The Chief Magistrate Court decreed that 9 acres out of the suit land belonged to the late M’Tuambae. 5. Aggrieved by the Judgment of the Chief Magistrate Court, the estate of the late M’Nanjau challenged the Judgment through an appeal in the Environment and Land Court, to wit, Meru ELC Appeal No 56 of 2018. The appeal was heard and disposed by this Court [Lucy Mbugua, J] vide a Judgment dated 21/4/2021 in which the Court upheld the Judgment of the Chief Magistrate Court. The estate of the late M’Tuambae embarked on enforcement of the Judgment through subdivision of the suit land to parcel out the 12 acres that were awarded to the estate of the late M’Nanjau. The enforcement is ongoing at this point. 6. While the enforcement was ongoing, the eight children of the late M’Nanjau [including Joseph Riungu M’Kirika who represented the estate in the proceedings in the Chief Magistrate Court and in the Environment and Land Court] took out an originating summons dated 8/5/2026, seeking ELCL (OS) NO E007 OF 2026 (RULING) Page 3

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to be declared to have, through adverse possession, acquired title to the 9 acres that were in April 2021 adjudged to belong to the late M’Tuambae. 7. It is also important to observe at this point that, it does emerge from the materials presented to the court at this interlocutory stage that, while aware that: (i) the ex-parte judgment that vested the suit land in the name of the late M’Nanjau was subsequently set aside in 2003; (ii) the ownership dispute which their late father lodged in court was still ongoing and; (iii) the suit land was not available for distribution as a free asset of the late M’Nanjau, the applicants purported to procure from the succession court what appears to be an irregular certificate of confirmation of grant distributing the suit land, which at that time was not part of the free assets of the late M’Nanjau because the registration they were relying on had been nullified by the court and the land was still the subject matter of litigation. 8. Upon taking out the present originating summons in May 2006, the plaintiffs brought a notice of motion dated 8/5/2026, seeking the following interlocutory injunctive orders:1) Spent 2) Spent 3) Spent 4) That this Honourable Court be pleased to order that an inhibition be issued and the same be registered against the parcel of land known as Title Number Abogeta/Nkachie/828 ELCL (OS) NO E007 OF 2026 (RULING) Page 4

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to restrict any dealings or transfer of the said parcel of land pending the hearing and determination of this Suit. 5) That this Honourable Court be pleased to issue a temporary restraining the order of injunction defendant/respondent whether by himself, his servants, agents, police officers or any person whomsoever from evicting, demolishing the plaintiffs/applicants houses, selling, leasing, charging or otherwise howsoever interfering with the plaintiffs/applicants’ quiet, peaceful, actual and exclusive possession, cultivation, user, development and enjoyment of their respective portions out of parcel of land known as title number Abogeta/Nkachie/828 pending the hearing and determination of this suit. 6) That Costs of this application be borne by the defendant/respondent. 9. The above notice of motion is the subject of this ruling. The application is opposed. The key question that falls for determination in the ruling is whether the application meets the criterial upon which a trial court exercises jurisdiction to grant interlocutory injunctive orders. 10. The application was premised on the grounds set out in the motion and in the supporting affidavit sworn on 8/5/2026 by Obed Kithure Kirika. It was canvassed through written ELCL (OS) NO E007 OF 2026 (RULING) Page 5

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submissions dated 9/6/2026, filed by M/s Kiautha Arithi & Co. Advocates. 11. The case of the applicants is that, together with their extended family members, they have been in open, exclusive, continuous, and uninterrupted occupation of the suit land since 2003. They have acquired interest in the suit land under the doctrine of adverse possession. They are apprehensive that the respondent seeks to dispose the suit land to third parties. They have made immense developments on the suit land. They urge the court to preserve the suit land, pending the hearing and disposal of their originating summons. 12. The respondent opposed the application through a replying affidavit dated 12/6/2026 and written submissions dated 21/7/2026, filed through M/s Mbumbuya & Co Advocates. His case is that he is the administrator of the estate of the late M’Tuambae. The suit land has been the subject matter of litigation between the applicants’ late father [the late M’Nanjau] and the late M’Tuambae. He points out that in 1985, the late M’Nanjau sued the late M’Tuambae in Meru SRMC Civil Case No 268 of 1985 claiming the suit land. Vide a Judgment dated 8/11/2018, the Chief Magistrate Court at Meru disposed the above case and decreed that the late M’Nanjau was entitled to only 12 acres out of the suit land and that the remainder (9 acres) belonged to the estate of the late M’Ritara M’Tuambae. 13. The respondent contends that the Judgment of the Chief Magistrate Court was upheld by the Environment and Land Court in Meru ELC Appeal No 56 of 2018. He argues ELCL (OS) NO E007 OF 2026 (RULING) Page 6

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that the plaintiffs/applicants have failed to satisfy the wellestablished principles governing the grant of interlocutory injunctions. It is the case of the respondent that the present application seeks to impede the enforcement of the two judgments that conclusively determined the parties' respective proprietary rights over the suit land. He urges the court to dismiss the application with costs. 14. The court has considered the application; the response to the application; and the parties’ respective submissions. An inhibition is, by and large, an interlocutory injunctive relief that bars registration of dealings in a land register pending the hearing and disposal of a suit. Consequently, the single issue that falls for determination in this ruling is whether the application dated 8/5/2026 meets the criteria for granting an ordinary interlocutory injunction by a trial court. 15. The relevant criteria on exercise of jurisdiction of a trial court to grant an ordinary interlocutory injunction was outlined by the Court of Appeal for East Africa in the case of Giella v Cassman Brown (1973) EA 358. First, the applicant is required to demonstrate a prima facie case with a probability of success. Second, the applicant is required to demonstrate that if the plea for an interlocutory injunction is declined, he will stand to suffer injury that may not be adequately indemnifiable through an award of damages. Thirdly, should the court have doubt on either or both of the above, the application is to be determined on the basis of the balance of convenience. 16. Over the years, our superior courts have developed a fourth principle to the effect that, at the stage of disposing of the ELCL (OS) NO E007 OF 2026 (RULING) Page 7

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plea for interlocutory injunction, the court should refrain from making conclusive or definitive pronouncements on the key issues in the dispute. The courts have emphasized that definitive and conclusive pronouncements/findings should be reserved for the final disposal of the dispute, as follows: The Court of Appeal defined a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd & 2 others:“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”. 17. Have the applicants satisfied the above criteria? The applicants are children of the late M’Nanjau. There is a Judgment and an active decree dated April 2021, pursuant to which 12 acres out of the suit land are supposed to go to the applicants’ father and 9 acres are supposed to go to the late M’Tuambae. By dint of the appellate Judgment of this Court, the decree is 5 years and 5 months old. Secondly, parcel number Abogeta/Nkachie/828 has been the subject of active litigation between the applicants’ father and the late M’Tuambae. The applicants are children of the late M’Nanjau. They have not demonstrated that while the land was registered in the name of the late M’Nanjau and while the late M’Nanjau and the late M’Tuambae were involved in ELCL (OS) NO E007 OF 2026 (RULING) Page 8

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active litigation on the question of ownership of the suit land, they [the children of the late M’Nanjau] were contemporaneously exercising adverse possession over the suit land as against the party whom their late father was litigating against. I will refrain from uttering anything definitive at this interlocutory stage. It suffices to state that, what emerges from the interlocutory evidence on record is that from 1985 to April 2021, the suit land was the subject of active litigation between the applicants’ late father and the late M’Tuambae. The suit land could not, in the circumstances, have been contemporaneously available for adverse possession by the applicants. Consequently, at this interlocutory stage, the applicants have not presented prima facie evidence demonstrating that they have a prima facie interest as adverse possessors of any portion of the suit land. 18. On irreparable damage, the applicants are members of the family of the late M’Nanjau. They are aware that in April 2021, the Environment and Land Court settled the protracted litigation that existed over the suit land between their late father and the late M’Tuambae. They are aware that the decree of the Chief Magistrate Court which was upheld by the Environment and Land Court is what is being enforced. They are aware that their intention is to procure an interlocutory injunctive order in enforcement of the subsisting decree. order to stop The question of irreparable damage does not arise under the above circumstances. ELCL (OS) NO E007 OF 2026 (RULING) Page 9

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19. The balance of convenience tilts in favour of allowing enforcement of the subsisting decree to proceed. 20. For the above reasons, the application dated 8/5/2026 is rejected and dismissed for lack of merit. In tandem with the general principle on costs, the applicants shall bear costs of the application. DATED, SIGNED AND DELIVERED AT MERU THIS 30TH DAY OF SEPTEMBER, 2026. B M EBOSO [MR] ELC JUDGE In the Presence of: Ms Mbumbuya for the Defendant Plaintiffs – Absent Mr E Tupet – Court Assistant ELCL (OS) NO E007 OF 2026 (RULING) 10 Page

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