JOHN WACHIRA KARANJA AND GLADYS NYAGICHUHU GATURUKU VS CHARLES MUGO KARIUKI

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1. Before the court is an application under Notice of Motion dated 6th November 2024 seeking the following ORDERS:
1. Spent.

2. Spent.

3. THAT, pending the hearing and determination of this application, an order of inhibition be issued prohibiting all dealings with LR NO. AGUTHII/MURUGURU/543 and an injunction until the full determination of this suit.

4. THAT the costs of this application be provided for.

2. The grounds in support of the application are stated on the face of the application and in the Supporting Affidavit of the 1st Applicant.  He deposes that he and the 2nd Applicant have occupied the suit land since 1969.
3. The Applicants claim that the Defendant/Respondents filed an application in Nyeri CM ELC Case No.14 of 2022 seeking orders to lift the caution in respect of Land Parcel Number LR AGUTHI/MURUGURU/343. The Applicants claim that if the caution is removed, the suit land is likely to change hands to other parties and that it is important to preserve the land as it is to avoid losing the substratum of the suit. The Applicants further state that the Respondents should be restrained from entering into the suit land or interfering with their occupation of the same.
The Respondents'' Replying Affidavit
4. The 1st Respondent swore an Affidavit in response, in which he deponed that the said application is incompetent, ill-advised, and an abuse of the court process, as CM ELC NO. 14 OF 2022 is the proper court in which the application ought to have been filed, instead of this court.
5. The 1st Respondent stated that the applicant is merely forum shopping, as the estimated value of the suit land does not exceed KSh. 7 Million, while the pecuniary jurisdiction of this court is capped at KSh.21 Million and above.
He therefore urged this Court to transfer the matter to the Magistrate''s Court, as it possessed the appropriate pecuniary jurisdiction.
6. The 1st Respondent denied that the Applicants had ever been in possession and/or occupation of the suit land, deposing that their sister, Lucy Wanjiku Karito, is the one in possession and occupation thereof; therefore, the orders prayed for are misplaced.

The Applicants’ Submissions
7. Counsel for the Applicants submitted, based on their application, which is the Defendants’ application in Nyeri Chief Magistrate''s Court ELC Case No. 14 of 2022, to have the caution placed on the register of the suit land removed. It is indicated in the supporting affidavit that the suit land is likely to change hands to other parties, and therefore, it is important to preserve the substratum of the suit.
8. The Applicants submit that they have met the conditions for an order of inhibition, relying on the authority of Japhet Kaimenyi M''Ndutho vs M''ndatho M''Mbwiria(2012)eKLR. They further submit that the suit land is at risk of being alienated by way of transmission to the detriment of the applicants, and that it would render their suit nugatory, as they also relied on Section 68 of the Land Registration Act and the case of Elly Jepkoech Limo vs Susan Wangui Kibe & another(2020)eKLR.
9. They submit that in land matters, the maintenance of the status quo is synonymous with the proceedings. They prayed for the order of inhibition as prayed for, submitting that the defendants will not suffer any prejudice.

Respondents’ Submissions
10. Counsel for the Respondents submitted that the applicants have not met the threshold for the grant of an injunction as provided for under Order 40(1) and (2) of the Civil Procedure rules and the case of Giella vs Cassman Brown& Co. Limited(1973)EA 358.
11. On the element of a prima facie case, they relied on the case of Margaret Njambi vs Joho Mwatha Kamau & Another(2019)eKLR, submitting that the photographs that the Applicants have attached are of a different parcel of land from the one suit land Reference No. Aguthii/Muruguru/543.
12. The Respondents claim that it is contradictory and paradoxical for the Applicants to claim the land under adverse possession, yet in the same breath state that it was sold to their family on 19th March 1969 through their late Uncle Gatukuru Gachemi.
13. Counsel further submitted that the Respondents were issued with Letters of Administration on 23rd July 2019, and the same were confirmed on 25th August 2020; therefore, the Applicants cannot be heard claiming adverse possession against the Administrators of the late Kariuki Wahome(Deceased) because the period of 12 years has not lapsed since the Grant of Letters of Administration.
14. They relied on the case of Mrao Ltd vs First American Bank of Kenya(2003)eKLR, where it was held that “for an applicant to be entitled to an order of temporary injunction, the applicant has to prove that there exists a legal right which has been infringed”, which the applicants have not done.
15. On irreparable harm, Counsel relied on the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai(2018)eKLR and stated that the Applicants have not met any of the conditions given in the said case; therefore, they urged the court to find that the application fails on this limb.
16. The Respondents submit that the balance of convenience tilts in favour of the Respondents, who are in possession of the suit parcels which belonged to their late father.
17. Submitting on the order of inhibition sought, it was stated that the applicants ought to have prayed for a stay of the proceedings before the lower court, pending the outcome of this matter. It was submitted that the application was filed in bad faith to derail the course of justice, and it was concluded that it should therefore fail.
Analysis and Determination
18. The Applicants herein seek an order of inhibition over the suit property, LR AGUTHI/MURUGURU/343, pending hearing and determination of this suit. The Applicants seek in the main suit, orders of adverse possession over the suit property and are apprehensive that the suit land will change hands if the order sought is not granted. They claim that this is evident from the application to remove a caution pending before the Chief Magistrate’s Court.
19. Section 68 of the Land Registration Act 2012 provides as follows:
(1) The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.
(2)  A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register.
(3)  An inhibition shall not bind or affect the land, lease or charge until it has been registered.
20. In the case of Peter Kariuki Njue v Severina Njira Kithumbu & another [2020] eKLR, the court found:
“The purpose of an order of inhibition is to prohibit further dealings with the suit property.  The court is thus of the opinion that it has a duty to preserve any property which is the subject of a dispute to prevent the risk of its alienation before the suit is heard and the rights of the parties conclusively determined.  That legal duty was recognised in the case of Shivabhai Patel v Manibhai Patel [1959] EA 907. 
21. The Applicants submit that they have met the conditions necessary for the grant of an order of inhibition as was concluded in the case of Japhet Kaimenyi M''Ndutho vs M''ndatho M''Mbwiria(2012)eKLR, that:
“In an application for orders of inhibition, in my understanding, the applicant has to satisfy the following conditions: -
a)    That the suit property is at the risk of being disposed of, alienated or transferred to the detriment of the applicant unless preservatory orders of inhibition are issued.
b)   That the refusal to grant orders of inhibition would render the applicant’s suit nugatory.
c)   That the applicant has an arguable case. The court has power to grant orders of inhibition against a suit land restricting registration of any dealing with the suit land for a particular time or until the occurrence of a particular event or generally until further orders."
22. It is noted that the suit parcel of land has a caution placed against it, which is the subject of Nyeri Chief Magistrate''s ELC Case No.14 of 2022. The Respondents claim that the application herein ought to have been filed in the same file. However, the court has observed that the caution was filed by one Karanja Gachemi Giutaru and the suit pending before the Chief Magistrate’s Court is against the said cautioner. The Applicants herein are not parties to the said suit.
23. Further, from the provisions of Section 38 of the Limitation of Actions Act, the Magistrate''s Court does not have jurisdiction over matters of adverse possession. This position was confirmed in the recent case of Sugawara v Nairuko Ene Mutarakwa Kiruti (Sued in her Capacity as the Administratrix of the Estate Mutarakwa Kiruti Lepaso alias Mutarakwa Kiroti Leposo and her own) & 3 others (Civil Application E030 of 2022) [2022] KECA 726 (KLR) (11 October 2024) (Judgment),  where the learned Judges of the Court of Appeal held that:
“It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the express provisions of the law, a strict interpretation of section 38 would mean that hearing and determination of such matters is specifically limited to the Environment and Land Court to the exclusion of Magistrates’ Court…… In the circumstances, in view of the express provisions of section 38 of the Limitation of Actions Act, as did the Environment and Land Court, we find that Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession. As a consequence, the trial magistrate in the instant case rightly disregarded hearing and determining it. In the result, this ground is without merit and is accordingly dismissed.”
24. In evaluating whether the order of inhibition is merited, the first criterion is that the suit property is in danger of being alienated or disposed of to the detriment of the applicant. The Court is of the view that this criteria has been met for the reason that the application before the Chief Magistrate’s Court seeks to have the restriction and/or caution registered against the suit land withdrawn on the ground that the parcel of land which forms part of the estate of Kariuki Wahome Ndagori (Deceased) has already been distributed to the beneficiaries and if the caution is not removed the beneficiaries will not be able to subdivide the land and register it in the names of the beneficiaries.
25. It is the Court’s view that the intended subdivision and transmission to the beneficiaries would be detrimental to the applicants herein in the event that they are successful in this suit in a claim for adverse possession. Further, it is clear from the affidavit evidence that if not prohibited by an order of this court, the beneficiaries intend to distribute among themselves the suit parcel of land, and this will render the suit herein nugatory if successful.
26. The Applicants relied on the authority of Elly Jepkoech Limo v Susan Wangoi Kibe & another [2020] eKLR, where the court quoted as follows:
“In the issue of maintenance of status quo to preserve the property, the court held in the case of  Joel Mugambi Mukira & 2 others (for and on behalf of Kimathi tenants welfare group) v County Government of Nyeri [20191eKLR that;
“In land matters, the maintenance of status quo order is now literally synonymous with the proceedings. As was held by the Court of Appeal in the case of Mugah -v- Kunga [1988] KLR 748, in land matters, status quo orders should always be issued for purposes of preserving the subject matter. The court''s practice directions vide Gazette Notice No. 5178/2014 Practice direction No. 28(k) give the court the leeway and discretion to make an order for status quo to be maintained until determination of the case."
27. It is thus the court’s finding that the Application herein meets the threshold for the grant of an order of inhibition, and the same is granted in the following terms;
1. Pending the hearing and determination of this suit, an order of inhibition be issued prohibiting all dealings with LR NO. AGUTHII/MURUGURU/543.

2. Costs of this application shall abide the final determination of the suit.
Delivered, dated and signed at Nyeri on 23rd day   the day of October        2025

Ruling read in open court and virtually in the presence of-
Ms Kendi - Court Assistant
Wahome Gikonyo for the Applicants
Mwemeka for the Respondents

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