1) This ruling is on the notice of motion dated 28-7-2025. The motion which is brought by the Applicant is dated 28-7-2025. It is brought under Sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Orders 40 rules 1,2 and 3 and 51 rule 1 of the Civil Procedure Rules.
The motion seeks six (6) residual orders.
3. That an interim injunction do issue against the Defendant by himself, his servants, agents or any other person from evicting, interfering, harassing, selling, offering for sale, advertising, alienating, transferring, disposing or otherwise completing by conveyance, transfer of any sale concluded by private treaty, taking possession, leasing, letting, charging or otherwise interfering 0.603 Ha out of the parcel of land known as Loc.8/Theri/404 pending the hearing and determination of the main suit of the Originating Summons herein.
4. That a temporary injunction do issue restraining the Respondent/Defendant and/or their savants/agents from dealing with the land in any manner that may prejudice the interests of the Applicant/Plaintiff in the land which includes leasing or letting out or from doing any act and/or use of the land parcel known as Loc.8/Theri/404 until this suit is heard and determined.
5. The Court be pleased to order maintenance for status quo as to registration, user, occupation, cultivation and possession pending full determination of the suit.
6. That an order be issued directing the Land Registrar to prohibit or restrict dealings to L.R. No. Loc.8/Theri/404 pending the hearing and determination of the originating summons herein.
7. That the Court be at liberty to give any further and necessary orders or directions it may deem fit.
8. The costs herein be provided for.
2) The motion is based on six grounds and is supported by the Applicant’s affidavit dated 28-7-2025. The gist of the motion is as follows. Firstly, the Respondent is the registered owner of L.R. No.Loc.8/Theri/404, suit land. Before and after the registration of the Respondent as the owner of the suit land, the Applicant was in occupation of the suit land and continues with such occupation of 0.603 hectares of the suit land in total exclusion of everyone else including the Respondent. The Applicant’s occupation and that of her family dates backs to the year 1970. The occupation has also been open and contrary to the title of the Respondent. Secondly, the Defendant has not interrupted or interfered in any manner with the Applicant’s peaceful possession and occupation of the suit land from the time the Applicant took possession hereof until 17-7-2025 when his agent entered the land and started clearing the unoccupied area and harvesting the Applicant’s tea bushes. Thirdly, the Applicant is the wife and legal administratix of the estate of Milton Wandii Nyagua who she married in the year 1970 and together they settled on the suit land and constructed a matrimonial home thereon. Fourthly, the Applicant’s initial occupation of the suit land was with the express permission of the Respondent’s grandfather who died in March 1976 whose remains were buried at Njoro area where he migrated to. Fifthly, the remains of the Applicants husband Milton Wandii Njagua and her son Moses Njagua Wandii who passed away on 29-3-2019 and 20-9-2008 are buried on the suit land. Finally, the Applicant has also developed the land extensively by planting tea bushes, coffee, bananas, arrow roots, various tree species and general farming. For the above and other reasons, the Applicant prays for the above orders.
3) The motion is opposed by the Respondent who has sworn a replying affidavit dated 7-10-205 in which she replies as follows. One, he is the registered owner of the suit land which does not form part of the estate of Milton Wandii Njagua with whom he has no relationships whatsoever. His registration has been since 24-6-2025. Two, when the Respondent’s grandfather passed away in the year 1976 the suit land was underdeveloped and covered with trees. Three, the Respondent objected to the burials of the Applicant’s Kin on the suit land and even sought the area chief to prevent the burials. Four the photographs annexed by the Applicant do not depict the suit land and neither does the valuation report. Finally, there is no proof that it is the Applicant farming on the suit land and the Applicant has not provided any specific timeframe to support her claim for adverse possession.
4) I have carefully considered the motion in its entirety including the grounds, the supporting affidavit and the replying affidavit. This being an application for injunction, the principles in the case of Giella vs. Cassman Brown and Co. Ltd [1973] E.A. 358 apply. They include the following.
(a) The Applicant establishing a prima facie case with a probability of success.
(b) The Applicant showing that she stands to suffer irreparable injury which cannot be adequately compensated with an award of damage.
(c) If the court is in doubt after considering the first two principles, it should determine which party would suffer the greater prejudice from granting or refusing the injunction.
5) In this case, I need not consider the first two principles because the main summons is yet to be heard. I will therefore look at the balance of convenience which I find tilts in favour of the Applicant who has been on the suit land since the year 1970. I am therefore inclined to allow the notice of motion dated 28-7-2025.
The biggest difficulty that I face is trying to understand the difference between prayers 3,4 and 5. I believe that the Land Registrar may face the same difficulty. To simplify the orders of the Court, I find that allowing prayers 5 and 6 will be sufficient to preserve the status quo such that the Applicant remains in occupation of the suit and the Respondent should not transfer or charge the suit land until the main suit is heard and determined. Prayers 5 and 6 are allowed. Costs in the cause.
It is so ordered.
Dated, Signed and Delivered virtually at Murang’a this 14th day of July, 2026.
M.N. GICHERU JUDGE.
Delivered online in the presence of; -
Court Assistant – Antony
Applicant’s Counsel – Miss Waititu
The motion seeks six (6) residual orders.
3. That an interim injunction do issue against the Defendant by himself, his servants, agents or any other person from evicting, interfering, harassing, selling, offering for sale, advertising, alienating, transferring, disposing or otherwise completing by conveyance, transfer of any sale concluded by private treaty, taking possession, leasing, letting, charging or otherwise interfering 0.603 Ha out of the parcel of land known as Loc.8/Theri/404 pending the hearing and determination of the main suit of the Originating Summons herein.
4. That a temporary injunction do issue restraining the Respondent/Defendant and/or their savants/agents from dealing with the land in any manner that may prejudice the interests of the Applicant/Plaintiff in the land which includes leasing or letting out or from doing any act and/or use of the land parcel known as Loc.8/Theri/404 until this suit is heard and determined.
5. The Court be pleased to order maintenance for status quo as to registration, user, occupation, cultivation and possession pending full determination of the suit.
6. That an order be issued directing the Land Registrar to prohibit or restrict dealings to L.R. No. Loc.8/Theri/404 pending the hearing and determination of the originating summons herein.
7. That the Court be at liberty to give any further and necessary orders or directions it may deem fit.
8. The costs herein be provided for.
2) The motion is based on six grounds and is supported by the Applicant’s affidavit dated 28-7-2025. The gist of the motion is as follows. Firstly, the Respondent is the registered owner of L.R. No.Loc.8/Theri/404, suit land. Before and after the registration of the Respondent as the owner of the suit land, the Applicant was in occupation of the suit land and continues with such occupation of 0.603 hectares of the suit land in total exclusion of everyone else including the Respondent. The Applicant’s occupation and that of her family dates backs to the year 1970. The occupation has also been open and contrary to the title of the Respondent. Secondly, the Defendant has not interrupted or interfered in any manner with the Applicant’s peaceful possession and occupation of the suit land from the time the Applicant took possession hereof until 17-7-2025 when his agent entered the land and started clearing the unoccupied area and harvesting the Applicant’s tea bushes. Thirdly, the Applicant is the wife and legal administratix of the estate of Milton Wandii Nyagua who she married in the year 1970 and together they settled on the suit land and constructed a matrimonial home thereon. Fourthly, the Applicant’s initial occupation of the suit land was with the express permission of the Respondent’s grandfather who died in March 1976 whose remains were buried at Njoro area where he migrated to. Fifthly, the remains of the Applicants husband Milton Wandii Njagua and her son Moses Njagua Wandii who passed away on 29-3-2019 and 20-9-2008 are buried on the suit land. Finally, the Applicant has also developed the land extensively by planting tea bushes, coffee, bananas, arrow roots, various tree species and general farming. For the above and other reasons, the Applicant prays for the above orders.
3) The motion is opposed by the Respondent who has sworn a replying affidavit dated 7-10-205 in which she replies as follows. One, he is the registered owner of the suit land which does not form part of the estate of Milton Wandii Njagua with whom he has no relationships whatsoever. His registration has been since 24-6-2025. Two, when the Respondent’s grandfather passed away in the year 1976 the suit land was underdeveloped and covered with trees. Three, the Respondent objected to the burials of the Applicant’s Kin on the suit land and even sought the area chief to prevent the burials. Four the photographs annexed by the Applicant do not depict the suit land and neither does the valuation report. Finally, there is no proof that it is the Applicant farming on the suit land and the Applicant has not provided any specific timeframe to support her claim for adverse possession.
4) I have carefully considered the motion in its entirety including the grounds, the supporting affidavit and the replying affidavit. This being an application for injunction, the principles in the case of Giella vs. Cassman Brown and Co. Ltd [1973] E.A. 358 apply. They include the following.
(a) The Applicant establishing a prima facie case with a probability of success.
(b) The Applicant showing that she stands to suffer irreparable injury which cannot be adequately compensated with an award of damage.
(c) If the court is in doubt after considering the first two principles, it should determine which party would suffer the greater prejudice from granting or refusing the injunction.
5) In this case, I need not consider the first two principles because the main summons is yet to be heard. I will therefore look at the balance of convenience which I find tilts in favour of the Applicant who has been on the suit land since the year 1970. I am therefore inclined to allow the notice of motion dated 28-7-2025.
The biggest difficulty that I face is trying to understand the difference between prayers 3,4 and 5. I believe that the Land Registrar may face the same difficulty. To simplify the orders of the Court, I find that allowing prayers 5 and 6 will be sufficient to preserve the status quo such that the Applicant remains in occupation of the suit and the Respondent should not transfer or charge the suit land until the main suit is heard and determined. Prayers 5 and 6 are allowed. Costs in the cause.
It is so ordered.
Dated, Signed and Delivered virtually at Murang’a this 14th day of July, 2026.
M.N. GICHERU JUDGE.
Delivered online in the presence of; -
Court Assistant – Antony
Applicant’s Counsel – Miss Waititu