1. This ruling is in respect of two applications: the Plaintiff’s Application dated 20th December, 2024 and the Defendant’s Application dated 18th February, 2025. The Plaintiff’s Notice of Motion Application dated 20th December, 2024 seeks the following orders:
2. The application was supported by the annexed affidavit of Jane Njoki Gechure, who deponed that the deceased was the registered owner of the parcel of land known as Dundori/Mugwathi Block 2/47 which was the subject of litigation in Nakuru HCC No 495 of 1988 with the Defendant where on 25th March, 2011, the High Court entered judgment in favour of the Defendant as the absolute owner of the mother parcel.
3. The Plaintiff further deponed that the Court of Appeal on 21st December, 2018, in Nakuru CACA No 156 of 2012 set aside and dismissed the High Court judgment. She further deponed that on 27th September, 2012, the Court of Appeal issued an order prohibiting dealings or any registration in the register at the Land Office until the hearing and determination of the appeal. It was the Plaintiff’s disposition that the Defendant, nonetheless, on 6th September, 2018 illegally subdivided the mother parcel into eleven parcels.
4. It was the Plaintiff’s deposition that she had been in peaceful occupation of the mother parcel until early December 2024 when the Defendant forcibly entered into the suit parcels, and illegally cultivated the same and urged the court to allow the Application as prayed.
5. Samuel Beswell Wanderi, the Defendant, filed a Replying Affidavit sworn on 18th February 2025 and deponed that the Plaintiff’s case is that she obtained a decree from the Court of Appeal, which effectively set aside the decree of the High Court. He deponed that questions relating to compliance of a court order issued in the context of the appeal cannot be canvassed by way of a fresh suit and urged the court to strike out the application.
6. The Plaintiff filed a Further Affidavit sworn on 17th March, 2025 and deponed that it is not true that the Defendant is in occupation of the suit properties, and that if the application is not granted, she will suffer huge losses.
7. The Defendant’s application dated 18th February, 2025 seeks the following orders:
a) THAT the plaint and the application dated 20th December, 2024 be struck out.
b) THAT costs of the application and costs of the suit be borne by the plaintiff.
8. The application was supported by the annexed affidavit of Samuel Beswell Wanderi, the Defendant, sworn on 18th February, 2025 where he deponed that he has been in occupation of the parcel of land while the matters have been pending in court. He also deponed that the question whether he was a trespasser and whether an order of injunction should be issued ought to have been raised by way of a counterclaim or cross-suit in Nakuru HCCC 495 of 1998, as the issue is res judicata. He therefore urged the court to strike out the suit with costs.
9. Jane Njoki Gechure filed a Replying Affidavit sworn on 17th March, 2025 and deponed that the suit is proper before the court since the same pertains to amalgamation of parcel numbers DUNDORI/MUGWATHI BLOCK 2/3070 to 3080 which are a subdivision of L.R No DUNDORI/MUGWATHI BLOCK 2/47 (KOILEL). It was her deposition that the Court of Appeal judgment could not be executed as the land in question, LR number DUNDORI/MUGWATHI BLOCK 2/47 (KOILEL) was no longer in existence and new parcels had been created.
10. The Plaintiff deponed that the case is not res-judicata and the matter can only be cured through a proper suit which the Court of Appeal has no jurisdiction over.
PLAINTIFF’S SUBMISSIONS
11. Counsel filed submissions dated 17th March, 2025 and identified the following issues for determination:
a) Whether the court should grant the Plaintiff a temporary injunction?
b) Whether the application and the suit should be struck out?
12. On the first issue, counsel relied on Order 40 Rule 1 (a) of the Civil Procedure Rules, 2010 and submitted that the Plaintiff has established a prima facie case as the deceased was successful upon litigation of the suit plot vide the Court of Appeal decision in Nakuru CACA No 156/2012.
13. Counsel submitted that the Plaintiff is in occupation of the suit plots and that sometime in December 2024, the Defendant attempted to forcibly take possession of the suit plots. Counsel relied on the cases of Giella vs Cassman Brown (1973) EA 358, Mrao vs First American Bank of Kenya Limited & 2 others (2003) KLR 125, Linas Ngetich vs Cecilia Chelangat Ngetich & 2 others [2018] eKLR and Joel Richard Wamai (Suing through Virginiah Wambui Wamai Guardian) vs Mary Wanjiru Wamai [2018] eKLR.
14. On the issue as to whether the Applicant will suffer irreparable loss that cannot be compensated by way of damages, counsel submitted that the deceased had a great attachment to the land, hence pursuing the court cases where he suffered financial and psychological implications.
15. Counsel relied on the case of Joseph Siro Mosioma vs Housing Finance Company of Kenya Limited & 3 others [2008] eKLR. Counsel further submitted that the balance of convenience tilts in favour of the Plaintiff since the suit plots form part of the deceased land which was illegally subdivided and relied on the cases of Chebii Kipkoech vs Barnabas Tuitoek Bargoria & Another [2019] eKLR and JM vs SMK & 4 others [2022] eKLR.
16. It was counsel’s submission that the Defendant did not address that the Plaintiff’s case on the new parcels of land being DUNDORI/MUGWATHI BLOCK 2/ 3070 to 3080 and which were not the subject matter in Nakuru H.C.C.C No 495/1998 and in Nakuru CACA No 156/2012. Counsel submitted that both the High Court and the Court of Appeal lacked jurisdiction to cancel the new illegal parcels created upon subdivision of DUNDORI/MUGWATHI BLOCK 2/ 47 (KOELEL) hence the present suit.
17. Counsel submitted that the Plaint raises triable issues and relied on the cases of Jevaj Shariff & Co vs Chotail Pharmacy Stores [1960] EA 374, Mpaka Road Development Co. Ltd vs Abdul Gafur Kana T/A Anil Kapuri Pan Coffee House [2001] eKLR, Jubilee Insurance Company Limited vs Grace Anyona Mbinda [2016] eKLR and Blue Shield Insurance Company Ltd vs Joseph Mboya Oguttu [2009] eKLR.
DEFENDANT’S SUBMISSIONS
18. Counsel for the Defendant filed submissions dated 26th March, 2025 and submitted that the action for trespass and declaration that the Plaintiff was the owner of the disputed land should have been raised by way of counterclaim in Nakuru HCCC 495 of 1998.
19. Counsel further submitted that the Plaintiff is not permitted to re-litigate the matter since the same is res judicata and urged the court to strike out the suit with costs. Counsel relied on Sections 7 & 34 of the Civil Procedure Act and the cases of Kennedy Ooko Jacob t/a Ssebo Intel Co Auctoneer vs John Abich Ochanda [2021] eKLR and Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited [2017] eKLR.
20. On whether the applicant has met the conditions for the grant of the injunction, counsel submitted that the suit is incompetent and it does not meet the threshold for the grant of injunction. Counsel submitted that the Court does not need to go into the details of whether the Plaintiff will suffer irreparable loss since she has not met the first condition. On whether the Plaintiff will suffer substantial loss, counsel submitted that her claims are in contradiction with the facts.
21. Counsel submitted that the Plaintiff is seeking orders restraining the Defendant from trespassing on the land, whereas she has stated that she is in occupation of the land. Counsel further submitted that the Plaintiff has demonstrated that the title deed is registered in the names of her deceased husband yet she has sought an injunction restraining the Defendant from selling or alienating the same. Counsel submitted that the Defendant cannot alienate land unless it is registered in his name and urged the court to dismiss the application with costs.
ANALYSIS AND DETERMINATION
22. The issues for determination are:
a) Whether the application and the suit should be struck out?
b) Whether the court should grant the Plaintiff a temporary injunction?
23. The background of this suit is that the Plaintiff’s Late husband was sued by the Defendant vide Nakuru HCCC 495 of 1998 where the court entered Judgment in favour of the Plaintiff on 25th march 2011.
24. The Defendant, being aggrieved by the Judgment of the High Court, filed an Appeal to the Court of Appeal vide Nakuru Civil Appeal No 156 of 2012 where the court set aside the Judgment of the High Court and dismissed the Plaintiff’s suit on
25. The Plaintiff in this case who is the Legal Representative of the Defendant in the High Court case stated that she applied for the for the cancellation of the Plaintiff’s certificate of title and issuance of title in the deceased’s name which was done.
26. It is not disputed that there were 2 cases between the Plaintiff and the Defendant in respect of land parcel No DUNDORI /MUGWATHI BLOCK 2/47 in the High Court and the Court of Appeal. The Mother title was registered in the Late Plaintiff’s husband’s name.
27. It is further not disputed that there were subsequent subdivisions which were done during the pendency of the Court of Appeal case in respect of the suit land of which the Court set aside the Judgment of the High Court and dismissed the Respondent’s case.
28. The Court of Appeal vide an order dated 27th September 2012 which by consent of M/s Njeri Njagua and Mr. Simiyu counsel for the Applicant and the Respondent agreed that the status quo in respect of the suit land and there shall be no registration or any dealing in the register at the land Office in respect of the suit land until the hearing and determination of the Appeal.
29. I notice that there are mutation forms which were processed during the pendency of the Appeal, and further, the Certificates of official searches for 11 properties which are resultant subdivisions from the mother title show that they are registered in the Defendant’s name. This was done in contravention of the consent order in the Court of Appeal prohibiting any dealing or registration in respect of the suit land.
30. The suit parcels have since mutated to other parcels of land which were not in existence during the hearing of the High Court and Court of Appeal case. The action of the Defendant to subdivide the suit parcels during the pendency of the Appeal is a tactic to circumvent justice and the implementation of the Judgment. It follows that this suit is not res judicata, as the Respondent would want the court to hold. The Defendant has triggered this litigation, which he now blames the Plaintiff for re-litigating the issue. If the Defendant had obeyed the court of Appeal order, then they would not be before this court over the same parcel of land which has mutated.
31. This Court finds that the Plaintiff’s suit is not Res-judicata.
32. From the background elaborated above, it shows that the Plaintiff has established a prima facie case against the Defendant as she has genuine fear that the Defendant is up to no good having sub divided the suit parcel of land and registered in his name in contravention of a court order stopping such subdivision and registration. To preserve the substratum of the case, the court also directs the Land Registrar, Nakuru County, to place an inhibition on the suit parcels, stopping any dealings in the register or any transfers.
33. I find that the Plaintiff’s Application for a temporary injunction has merit and issue the following specific orders:
d) The Defendant’s Notice of Motion Application dated 18th February, 2025 is hereby dismissed with costs.