REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT EMBU
ELC LAND CASE NO. E023 OF 2025(OS)
PAUL MWENDO MULI & 8 OTHERS….…PLAINTIFFS/APPLICANTS
VERSUS
VIRGINIA NGUNYI MUTOKAA……………………1ST RESPONDENT
JAMES NJUE MUTOKAA…………………..………2ND RESPONDENT
(Sued as the legal administrators of the estate of the late MUTOKAA NTHAUTHO
RULING
1. Vide the Notice of Motion application dated 13/08/2025, the Applicants are seeking orders interalia, that this Court be pleased to order that an inhibition be issued and be registered against land parcel Mbeti/Gachuriri/249 to restrict any dealings or transfer of the said land pending the hearing and determination of this suit; that the Court be pleased to issue a temporary order of injunction restraining the Respondents whether by themselves, their servants, agents, police officers, or any person whatsoever from evicting, demolishing the Applicants’ houses, selling, leasing, charging or otherwise interfering with their quiet, peaceful, actual and exclusive possession, cultivation, user, development and enjoyment of their respective portions out of the said land pending hearing and determination of the suit.
2. The application is based on grounds on the face of the application supported by the affidavit of the 1st Applicant, Paul Mwendo Muli on behalf of the other Applicants sworn on 13/08/2025. He deposed that land parcel 249 is currently registered in the name of the late Mutokaa Nthautho and the Respondents are his legal administrators of his estate and are sued in that capacity. He averred that the suit land was initially owned by his father, the late Muli Munyasya as per entry No. 5 of the land register.
3. He stated that their forefathers resided and occupied the whole of the land before the demarcation period and that together with the other Applicants, they were born on the said land where they settled their homes to date. He averred that the Respondents together with hooligans invaded the suit land and forcefully took part of the land displacing them from where they used to graze their animals. He stated that they are still occupying part of the suit land especially where their houses are situated and where they cultivate. He maintained that the Respondents have never evicted them from the land except recently and that they have occupied it openly, exclusively, continuously and uninterrupted for over 50 years and have made immense developments on the land.
4. He stated that the Respondents have never occupied or utilized the suit land. He expressed that they are apprehensive that the Respondents may alienate the land anytime and that they stand the risk of being evicted from land they have called home since they were born leaving them and their families in a precarious position. They urged that they have a good case against the Respondents and prayed that the application be allowed. He attached to the supporting affidavit a copy of the authority to plead, a copy of the register for land parcel 249, a copy of the grant of letter of administration to the estate of the late Mutokaa Nthautho, a copy of the survey report for the suit land and photographs of the developments on the land.
5. The 2nd Respondent in opposition to the application and on behalf of the 1st Respondent filed a replying affidavit dated 25/09/2025 and deposed that the suit land is registered in the name of his late father Mutokaa Nthautho. He averred that the application is defective as the 3rd Applicant, Lydia Mutua is deceased. He stated that the suit land is also the subject matter in ELC Petition Case No. E002 of 2025 which is before this Court in which they are sued with the 1st Respondent. He averred that the Court in the Petition on 23/06/2025 gave orders restraining him and the 1st Respondent from subdividing, transferring, intermeddling or adversely dealing with the land and issued conservatory orders preserving the land against any transfer, conveyance, reassignment, change of user, interference, division, alienation, alteration or any interference with the land. He averred that there is also a restriction on the land and therefore the land is already encumbered and such is not at the risk of being adversely dealt with.
6. He maintained that the suit is Res Judicata and that they had raised a Preliminary Objection on that ground. He denied attempting to evict the Applicants and stated that together with the 1st Respondent, they had no intention to disobey the Court Orders issued on 23/06/2025. He stated that it is the Applicants who threaten to cause harm and have assaulted their tenants and family when they were exercising their beneficial interest as beneficiaries of the estate of the late Mutokaa Nthautho. They urged that the application be dismissed with costs. He attached to the replying affidavit a copy of the authority to plead, a copy of the register for land parcel 249, a copy of ELC Petition No. E002 of 2025, a copy of the Order issued on 23/06/2025 and a copy of a police abstract.
7. The Applicants in response filed a further affidavit dated 22/10/2025 sworn by the 1st Applicant, Paul Mwendo Muli. He deposed that the demise of the 3rd Applicant does not render the application defective as there are other Applicants on record and that her name can be struck out without affecting the validity or substance of the proceedings. He averred that the suit is not Res Judicata since the parties in the petition are different and the subject matter is also different. He further stated that the petition concerns a claim by members of the Mbadi Clan that the late Mutokaa Ntahutho held the suit land in trust for the clan members, whereas the present suit is founded on a claim of adverse possession.
8. He stated that a survey report by Geoland Surveys attached to the further affidavit at page 3 shows that approximately 39.211 Ha of the suit land are occupied, developed or owned by individuals who are not members of the Muli Munyasya estate/family which confirms that portions of the land have already been disposed of to third parties. He maintained that the risk of alienation is therefore real and continuing which justifies the grant of injunctive reliefs to preserve the property. He further maintained that the Respondents have been persistently threatening and harassing them and that they assaulted his wife on 06/08/2025, and that they have also been summoning them to local administration for purposes of intimidation and harassment which shows that the Respondents have not been peaceful.
9. He averred that the Respondents were in contempt of the temporary injunctive orders issued by this Court on 20/08/2025 which restrained them from engaging in any activities on the suit property. He averred that despite being served with the said Orders, the Respondents have by themselves or through their agents or servants, continued to cultivate and plough the suit property using tractors. He contended that they had satisfied the conditions for the grant of the injunctive Orders and asked that the application be allowed.
10. He attached to the further affidavit a copy of the survey report a copy of a P3 form and photographs showing the Respondents cultivating on the suit land.
11. When the application came up for directions, the parties agreed to canvass it by way of written submissions. The Applicants filed the submissions dated 13/11/2025 through the firm of Kiautha Arithi & Company Advocates.
12. They submitted that the Respondents Preliminary Objection deals with disputed facts and thus is not a proper objection as was required in the case of Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors Ltd (1969) EA 696 and in Oraro versus Mbaja (2005) Eklr. They submitted that in order for a bar of res judicata to be sustained, the Respondents must meet the criteria set out in section 7 of the Civil Procedure Act and in this case, they failed to do so. They submitted further, that principles for determining an application for interlocutory injunction were set out in the Court of Appeal case of Kenya Commercial Finance Company Ltd versus Afraha Education Society (2001)1 EA and in Giella versus Cassman Brown & Company Limited (1973) EA 358.
13. They stated that a party must prove that they have a prima facie case with a probability of success and that in this case, they had adduced evidence showing persistent harassment and interference by the Respondents including assault of the 1st Applicants wife by the 2nd Respondent, repeated intimidation of the 1st Applicant before local administration and continued cultivation of the suit land in defiance of court orders issued on 20/08/2025 thereby placing the Respondents in contempt. They averred that the Respondents conduct clearly shows infringement of the Applicants rights which demonstrates an ongoing violation of their rights. They added that they have a clear, demonstrable and legally recognizable interest in the suit property which forms the basis of their claim as they are not strangers to the suit property given that their claim is anchored on adverse possession.
14. On the second limb that they must demonstrate that they will suffer irreparable injury, they submitted that they have lived on the suit property with their families since the 1950’s, have built permanent homes, established farms, buried their dead and raised generations on the land. They averred that evicting them now or allowing continued threats of eviction and interference by the Respondents would completely disrupt their lives, displace their families and strip them of their only source of livelihood which is farming. They contended that they stand to suffer massive loss or injury if the orders are not granted.
15. On the third limb that is whether the balance of convenience is in their favour, they submitted that they continue to occupy the suit land and if injunctive reliefs are not granted and the Respondents evict them and the suit is determined in their favour, they will ultimately suffer greater inconvenience than the Respondents will. They averred that the balance of convenience therefore tilts in their favour and therefore they has proved all the pre requisites of granting orders of temporary injunction.
16. They submitted further, that it was clear from their further affidavit that the Respondents had disposed of or alienated the suit land to their parties and therefore the risk of alienation is real and continuing which justifies the grant of the orders of inhibition to preserve the status quo of the property. They urged that the application be allowed with costs to them.
17. The Respondents filed the submissions dated 25/11/2025 through the firm of Nzekele Magdalene & Associates Advocates. They submitted that orders of inhibition are found in section 68 of the Land Registration Act which gives the Court the power to make an order of inhibition inhibiting for a particular time or until the occurrence of a particular event or until a further order the registration of any dealing with land. They averred that according to their replying affidavit, they have no intention to alienate by transfer, charge or adversely deal with the suit land and they would therefore would not object to status quo being maintained.
18. They averred that it is not the whole of the suit land that is in dispute but part of it and that they depend the part of the land not utilized by the Applicants as beneficiaries of the estate of the late Mutokaa Nthautho for their livelihood. They averred that therefore, inhibiting the portion the Applicants do not utilize would not only be unfair, unjust but would render them destitute and at the mercy of well-wishers in provision of their basic needs. They urged the court that status quo be maintained and they be allowed to continue utilizing and farming on the part of land not in dispute pending determination of the main suit.
19. They averred that the Applicants have not provided any evidence that there is a threat of eviction or that the Respondents are in the process of disposing the portion of land they occupy to third parties. They averred that it was the 1st Applicant and his wife who assaulted the 2nd Respondent and threatened to kill him and that a suit on the same is pending before the Principal Magistrates Court at Siakago. They contended that the Applicants had met the conditions for the grant of an injunction and urged that the application be dismissed with costs.
20. The Court has considered the application, the affidavits filed by the parties and their written submission. The issues for determination are:
i. Whether the suit herein is res judicata;
ii. Whether an order of inhibition should issue; and
iii. Whether a temporary injunction should issue.
21. On whether the suit is res judicata, section 7 of the Civil Procedure Act bars a court from trying a suit or issue which has been directly and substantially in issue in a former suit between the same parties, or parties claiming under them, litigating under the same title, and which has been finally determined by a court of competent jurisdiction. The Respondents contend that the present suit is res judicata in view of Embu ELC Petition No. E002 of 2025. They annexed a copy of the said petition which shows that it was filed by the Association of Friends of Youth and Women and the Chairman of Mbadi Clan suing as trustee of the clan against the Director of Land Adjudication and others, including Virginia Ngunyi Motokaa and James Njue Motokaa.
22. From the petition, the claim therein is for a declaratio that land parcel No. Mbeti/Gachuriri/249 constitutes clan land held in trust by the late Mutokaa Nthautho for members of the Mbadi Clan, a declaration that the petitioners’ rights under Article 40 of the Constitution had been violated, and for general damages for the alleged violation of their constitutional rights. The present suit, on the other hand, is founded on a claim for adverse possession. It is therefore evident that the causes of action and the reliefs sought in the two suits are distinct. Accordingly, the Court finds that the suit herein is not res judicata.
23. On whether an order of inhibition and a temporary injunction should issue, the Court notes that in Petition No. E002 of 2025, conservatory and restraining orders were issued on 23/06/2025 preserving land parcel No. Mbeti/Gachuriri/249 measuring 280 acres by prohibiting the Respondents from subdividing, transferring, alienating, interfering with or otherwise dealing with the land in any manner, and further restraining interference with the petitioners’ occupation and use of the land. It is therefore clear that the suit land is already the subject of subsisting preservation orders issued by a court of competent jurisdiction.
24. The Court further notes that the Respondents have not controverted the Applicants’ averment that, despite the subsisting conservatory and restraining orders issued on 23/06/2025, they have continued to cultivate portions of the suit land which the Applicants do not presently occupy. Such conduct amounts to interference with the suit property and undermines the preservation orders issued by the Court. In the circumstances, the Court is satisfied that the suit property ought to remain preserved pending the hearing and determination of this suit so as to prevent any dealings or activities that may defeat the substratum of the dispute. The Court is therefore persuaded that it is in the interests of justice to issue an order of inhibition and a temporary injunction to maintain the status quo and preserve the suit land pending the hearing and determination of the suit.
25. Accordingly, the Court makes the following orders:
a. The suit herein is not res judicata.
b. An order of inhibition is hereby issued inhibiting any dealings whatsoever in land parcel No. Mbeti/Gachuriri/249 pending the hearing and determination of this suit.
c. A temporary injunction is hereby issued restraining the Respondents, their agents and/or servants from selling, transferring, charging, subdividing, alienating, cultivating, interfering with or otherwise dealing with land parcel No. Mbeti/Gachuriri/249 and from interfering with the Applicants’ occupation of the land pending the hearing and determination of this suit.
DATED, DELIVERED and SIGNED at EMBU this 26th day of February, 2026.
E.C CHERONO
E.L.C JUDGE
In the presence of;
1. Mr. Onani H/B for Karoki for the Respondent.
2. M/S Mulema H/B for Kiautha for the Applicant
3. Dians Kemboi C/A.
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