REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELC NO E036 OF 2025
BEATRICE WAIRIMU MUGO.......................PLAINTIFF
VERSUS
ROSEMARY WANJIKU GATENE( Sued as the Administrator of the Estate of the late John Gtaene)...................................1ST DEFENDANT
ESTATE OF THE LATE JOHN GATENE ( sued through the Administrator)...............................................................2ND DEFENDANT
LAND REGISTRAR, NYANDARUA............................3RD DEFENDANT
RULING
In the Application dated 2/12/2025 the Plaintiff prayed for orders that:-
1. Spent
2. The Court issues a temporary injunction restraining the Defendants from transferring , disposing of, changing, alienating, entering upon, trespassing onto, interfering with and/or in any manner whatsoever from dealing with the parcel of land known as Title No. NYANDARUA/OL-ARAGWA/326 or any portion thereof.
3. This Court be pleased to uphold and preserve the existing caution registered by the Plaintiff over Title No. NYANDARUA/OL-ARAGWA/326 and direct that the said caution shall remain in force pending the hearing and determination of this suit.
4. The 3rd Defendant be restrained from registering any dealings, trespass or encumbrances relating to Title No. NYANDARUA/OL-ARAGWA/326 unless with the leave of this Court.
5. Further orders as it deems fit and/or fair.
6. Costs of this Application.
The same was grounded on the Affidavit in support sworn on even date by Beatrice Wairimu Mugo, the Plaintiff and the facts on the face of the Application.
The same are to the effect that:-
a. The Plain tiff purchased the suit property from the 1st Defendant’s late husband in or about 1989, paid the full purchase price, save Kshs 5,000/= from it and took possession in 1990 where she has remained in upon peaceful, continuous and uninterrupted occupation to date.
b. The balance of Kshs 5,000/= according to their agreement was to be paid upon transfer of the suit land.
c. This transfer was effected .
d. During succession proceedings relating to the Estate of the 1st Defendant’s late husband, the suit land was registered in her name in 2007 though with full knowledge of the Plaintiff’s long-standing possession, purchase and equitable intent.
e. There is therefore a constructive trust in favour of the Plaintiff who has registered a caution to over the property to protect her interest.
f. The Plaintiff stands to suffer irreparable loss that cannot be adequately compensated by way of damages should the Defendants dispose of the land.
g. She has established a prima facie case with a probability of success.
h. It is in the interest of justice to be granted the sought for orders which would not prejudice the Defendants in anyway and that the orders are meant to preserve the property by the Court which has inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act and also powers under Order 40 Rules 1,2 and 4 of the Civil Procedure Rules, 2010.
In her aforesaid Affidavit , the Plaintiff has attached:-
i. A copy of the sale agreement for Kshs 45,000/- in respect to the suit property.
ii. Acknowledgements of payment of the purchase price.
iii. A copy of the Certificate of official search.
iv. Copy of registered caution.
v. Copy of correspondences.
vi. Photographs of agricultural activities on the suit property with a Certificate of electronic records pursuant to Section 106 B of the Evidence Act cap 80 Laws of Kenya.
The Application was brought under Certificate of urgency. None of the Defendants has filed any response to counter the Plaintiff’s Application. In respect to the Courts Documents, the Plaintiff filed written Submissions dated 26/1/2026 which I have gone through before writing this Ruling.
From the Documents attached to the Affidavit in support of the Application sworn on 2/12/2025, the Plaintiff has demonstrated her case and attached copies of sale agreement dated 21/12/1989 and 26/2/1990 respectively stating that she entered into an agreement to purchase the suit land 11/2 Acres at Kshs 45,000/=, although the agreement is in Kikuyu without an English translation and does not show the suit parcel number.
There is a copy of official search for L.R No. NYANDARUA/OL-ARAGWA/326 , an Application for registration of caution on the 23/6/2017, correspondences over the dispute with the first one coming from the Deputy County Commissioner to the 1st Defendant dated 17/9/2017 summoning the parties to the office of the Deputy County Commissioner for a meeting to resolve the matter, a second one from the same office dated 26/9/2017 and the third one from the Directorate of Criminal investigations to the senior chief, Murungaru Location notifying the said Chief that the C.I.D were investigating the issue and asking the Chief to help secure the attendance of both the Plaintiff and the 1st Defendant among others to appear before him. There are also photos of crops on the land.
From the above, I am persuaded there was an agreement of sale agreement between one John Gatene and the Plaintiff over 11/2 Acre land , and according to Mrao Ltd -vs- First American Bank of Kenya Ltd and 2 others { 2003} KLR 125.
“ In Civil cases, a prima facie case is a case in 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
There is a prima facie case with a probability of Succession. Not that the Plaintiff’s case must succeed but that the probability exists and the likelihood of a constructive ...............can be discerned. Should the land change hands before the case is heard, the Plaintiff could suffer irreparable loss not likely to be re...........by way of payment of damages.
In the premises the Plaintiffs’ Application succeeds wholly and I do order that the prayers sought in her Application dated 2/12/2025 are hereby granted with costs. The suit should be listed for hearing to be heard within the next 90 days.
Ruling read dated, signed and delivered at Nyandarua this 3rd Day of June, 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant:
Plaintiff’s Counsel:…………………N/A.
Defendants’ Counsel:………………N/A.
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