Background
1. The record of appeal filed herein dated 26th January 2026 shows that the appellant herein is the 2 nd Defendant in VIHIGA MC E&L CASE NO. E048 OF 2023 (the suit) in which the appellant, together with ALFAYO MAGOMA OKOTSI (the 2 nd Respondent herein) and KEYSIAN AUCTIONEERS, was sued by the 1st Respondent in this appeal vide the plaint dated 22 nd August 2023.
2. The case of the 1 st Respondent was that he had bought land parcel known as LR KAKAMEGA/CHAGENDA/459 measuring 0.48 Ha (the suit land) at Kshs 250,000/- from the 2 nd Respondent who subsequently became reluctant to transfer the land sold to him (1 st Respondent). That he had taken possession of and developed the suit land. That the suit land was advertised for sale by public Auction by Keysian Auctioneers, who was the 3 rd defendant in the suit, on behalf of the appellant herein.
3. The 1 st Respondent therefore sought orders of permanent injunction, declaration that the intended sale was unlawful and untenable in law hence null and void ab initio, an order that the appellant re-open the charge to enable settlement of the loan by instalment until payment in full and also a declaration that the 1 st Respondent duly and legally acquired the land and should be registered as the owner, furthermore, an order directing the 2 nd Respondent herein to sign the relevant transfer forms for transfer of the suit land in favour of the 1 st Respondent failing which the court be mandated to execute the transfer forms, costs of the suit and interest.
4. The record shows that the appellant, the 2 nd and 3 rd Defendants filed a Defence dated 6 th February 2024 vide which it denied the plaintiff's claim and averred that the advertisement of the suit property for sale by public auction was lawful. The appellant averred that the suit disclosed no reasonable cause of action and urged the court to strike it out. The appellant further prayed that the suit be dismissed with costs.
5. Together with the plaint, the 1 st Respondent filed a Notice of Motion application dated 22 nd August 2023, expressed to have been brought pursuant to the provisions of Section 3, 3A & 63(e) of the Civil Procedure Act, Order 40 Rule 1 Civil Procedure Rules and Sections 89, 90, 91, 103 & 104 of the Land Act, 2012. The application sought orders that: -
i. The Honourable Court be pleased to issue a temporary order of injunction restraining the Defendants / Respondents jointly from selling, disposing of by way of public auction the plaintiff's / applicant's land parcel Number KAKAMEGA / CHAGENDA / 459 pending the hearing and determination of the suit
ii. Costs of the application be provided for.
6. In response to the application, the appellant filed Grounds of Opposition dated 29 th August, 2023 and the Defendant’s / Respondent’s Replying Affidavit opposing the application.
7. The record shows that the application was heard by the trial court by way of written submissions. The trial court, vide its ruling dated 23 rd January 2024, found that the application had merit and allowed it by issuing an order of temporary injunction as prayed and making an order that costs be in the cause.
The Appeal
8. Aggrieved by the ruling, the appellant preferred the present appeal vide the Memorandum of Appeal dated 22 nd December 2023. The appeal was filed pursuant to leave granted on 10 th December 2025. The grounds of appeal are that:
a. The learned Magistrate erred in law and misdirected herself by finding that the 1st Respondent was entitled to an order of interlocutory injunction restraining the appellant from disposing of the property L.R No. KAKAMEGA / CHAGENDA / 459 in exercise of its statutory power of sale.
b. The learned Magistrate erred in law and misdirected herself by finding that the 1st Respondent had satisfied the grounds for the grant of the interlocutory injunction.
c. The learned Magistrate erred in law and fact by disregarding the Appellant's objection to the jurisdiction of the court.
d. The learned Magistrate erred in law in disregarding the appellant's objection that the 1st Respondent's suit was time-barred
e. The learned Magistrate erred in law and fact by allowing the 1st Respondent's application dated 22 nd August 2023.
9. The appellant seeks orders that the appeal be allowed, the ruling delivered on 25 th January 2024 be set aside in its entirety, and the costs of the appeal be awarded to the appellant.
Submissions
10. The appeal was heard by way of written submissions. On behalf of the appellant, written submissions dated 7 th April 2026 were filed by Kotonya Njoroge LLP Advocates, while on behalf of the 1st Respondent, written submissions dated 8 th May 2026 were filed by AK Advocates LLP. I shall refer to the submissions as I determine the issues of the appeal.
Issues for determination
11. From the grounds of appeal, the appellant framed 3 issues for determination in the appeal, namely: -
i. The 1 st Respondent did not satisfy the grounds for grant of interlocutory
injunction.
ii. The honourable trial court lacked jurisdiction to hear the 1st Respondent's
suit.
iii. The 1 st Respondent’s suit was statute-barred by dint of Section 7 of the Limitation of Actions Act.
The court adopts these as the issues for determination herein.
Analysis and determination
12. This being a first appeal, this court is obligated to re-analyse the evidence/material placed before the trial court and draw its own conclusions. In Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. That
“An appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”
Guided accordingly, I proceed to determine the issues herein.
The 1 st issue for determination is whether or not the 1 st Defendant satisfied the
grounds for grant of an order of temporary injunction.
13. The grounds upon which the application for temporary injunction was brought, as indicated in the Notice of Motion and the Supporting Affidavit sworn by Evans Arunga Kinara, were that the applicant (1 st Respondent herein) was the lawful owner of the suit land, having acquired prescriptive rights by virtue of purchasing it from the 1 st Defendant. That the Respondent had peacefully occupied and developed the land since 2009. That the 2 nd Defendant (the appellant herein) had instructed Keysian Auctioneers Ltd, who had set in motion the process of realizing the suit parcel of land charged to the appellant as security. That it was prudent that the Applicant be given a chance to redeem the property before the intended sale. That the intended sale was unlawful as the appellant had a remedy to sue for the outstanding amount owing; hence the appellant's action was premature.
14. It was contended that the applicant's family depends on the property for survival, both to earn a living and for sustainability. That the intended sale was an infringement of the applicant's right to own property and was contrary to the provisions of the Constitution of Kenya 2010, and section 91(1) and (2) of the Land Act 2012. That unless the order sought is granted, the plaintiff shall suffer great harm and prejudice and irreparable loss.
15. The grounds upon which the application was opposed were that the applicant did not have any binding interest in the suit property that was capable of defeating the appellant's legal interest in the property. That there was no privity of contract between the applicant and the appellant to warrant issuance of the order sought. That the applicant’s purported claim was for breach of contract which may be compensated through damages by the relevant party. That the application and the entire suit were a non-starter, bad in law and an abuse of the Court process and ought to be dismissed.
16. The record shows that the trial court, in arriving at the ruling, considered that the applicant had availed a sale agreement and that the appellant and the 3 rd Defendant in the suit had chosen to remain quiet over the same. The Court found that the balance of convenience lay with granting the order of temporary injunction to avoid further hardship.
17. The appellant faults the trial court for this holding and contends that the applicant did not demonstrate or satisfy the grounds for grant of an order of temporary injunction. It was submitted in this appeal on behalf of the appellant that the 1 st Respondent did not establish a prima facie case with a probability of success as defined in Mrao Ltd -vs- First American Bank of Kenya Ltd and 2 Others (2003) KLR 125 . That the 1 st Respondent needs to adduce evidence to show infringement of a right. That by virtue of the provisions of sections 90 and 103 (1) of the Land Act, as amended by the Land Laws (Amendment) Act 2016, Act No. 28 of 2016, the 1 st Respondent lacked locus standi to restrain the appellant from exercising its statutory power of sale. That further, the 1 st Respondent did not demonstrate any interest in the land which overrides the appellant's interest which was endorsed in the property. For this submission, the appellant relied on section 36(5) of the Land Registration Act 2012 which provides that :
"Interests appearing in the register shall have priority according to the order in which the instruments which led to their registration were presented to the registry of the date of the instrument..."
18. Counsel submitted that even if the 1 st Respondent had demonstrated a prima facie case, damages would be an adequate remedy. Counsel submitted further that the 1st Respondent would not suffer irreparable injury if the honourable trial Court declined to grant an injunction. That the suit land was registered in the name of the 2 nd Respondent. That the 1st Respondent failed to establish any proprietary interest in his favor over the suit property. Counsel relied, inter alia, on the case of Nairobi Mamba Village vs National Bank of Kenya (2002) EA 197, cited with approval in Bank of Africa Kenya Limited & Another -vs- 755 Investment [2002] Limited & 2 Others KECA 410 (KLR ), where it was held that the only person who can legitimately complain that the power of sale is being exercised unlawfully, irregularly or oppressively is the Chargor. That the 1 st Respondent failed to establish any of the grounds set in the law for the grant of an order of injunction restraining the appellant from selling/exercising statutory power of sale and that therefore the trial Magistrate erred in holding otherwise.
19. On behalf of the 1 st Respondent, it was submitted that the 1 st Respondent clearly met the threshold for the grant of an order of temporary injunction. That the Respondent had been in possession of the suit property since 2009 pursuant to a valid and subsisting sale agreement with the 2 nd Respondent. That he had made significant improvements on the land and holds the original title deed of the suit property, which was handed over by the 2 nd Respondent upon completion of payment of the purchase price. Counsel relied on the case of Mwangi & Another v Mwangi 1986 KLR 328, where it was held that a purchaser in actual possession holds an equitable interest in the land capable of overriding subsequent dealings with the property. Counsel submitted that a question arises as to whether the appellant did due diligence. And that Section 76(3) of the Land Registration Act No. 3 of 2012 requires that a charge over land be registered as an encumbrance on the title, yet the original title remained with the 1 st Respondent, a fact that undermines the appellant's claim to a perfected charge. That the irregularities surrounding the appellant's charge are triable issues that the 1 st Respondent is entitled to have ventilated before the trial Court.
20. On irreparable harm, Counsel submitted that the suit property is not just a piece of land to the 1 st Respondent but his home into which he has invested his life savings and labour over 14 years. That the sale of the property would visit upon the 1 st Respondent a catastrophic and irreversible loss that cannot be compensated by way of damages. Counsel relied on the case of Nguruman Limited -vs- Jan Bonde Nielsen & 2 Others (2014) eKLR to support the submission.
21. Counsel submitted further that the balance of convenience tilted in favour of granting the order sought as the 1 st Respondent stood to lose his home and all the investment made thereon. That granting the injunction would preserve the status quo and ensure that the substantive rights of both parties are determined on merit. Counsel submitted that the learned Magistrate exercised her discretion correctly.
22. I have considered the submissions and the record of appeal. The grounds for grant of temporary injunction are provided in Order 40 Rule 1. The suit land was indeed threatened with sale as the same had been advertised for sale by the 3rd Defendant by public auction. The 1 st Respondent’s claim over the suit land was based on purchase and prolonged occupation and development thereof. The 1 st Respondent had deposed in paragraph 2 of the Supporting Affidavit that he bought the land from the 2 nd Defendant on 15 th September 2009. To the Supporting Affidavit was annexed a document marked EAK 2 described by the 1 st Respondent as an agreement and photographs marked EAK 3 to show his development on the land. He also exhibited copies of documents including a copy of the title deed that were allegedly surrendered to him by the 2 nd Respondent upon purchase.
23. It is not denied that the purported purchase by the 1 st Respondent came long before the purported Charge in favour of the appellant.
24. The essence of an order of temporary injunction is to preserve the status quo of the subject matter pending hearing of the suit. Based on the material placed before the trial court, the threshold for grant of a temporary injunction had been established to warrant grant of the orders sought. Perhaps to secure the interest of the appellant, the trial court should have required the 1 st Respondent to provide an undertaking for costs should it later turn out that there were no grounds to grant the injunctive orders. I find that the trial court did not err in granting the relief sought.
The next issue for determination is whether or not the trial court had jurisdiction
to hear and determine the suit.
25. In paragraph 4 of the Defence the appellant denied the jurisdiction of the trial court to entertain the suit. It was submitted on behalf of the appellant in this appeal that on 30 th August 2022, the High Court delivered a judgment in VIHIGA PM HCC NO E004 of 2021 granting the appellant leave to sell the suit property. That with the existence of the valid
order issued by the superior court, the trial court lacked jurisdiction to issue any contrary order. Counsel relied on the case of the Owners of the Motor Vessel "Lillian S" -vs- Caltex Oil Kenya (1989) KLR 1 and the provisions of section 3(3) of the Law of Contract Act, among other authorities.
26. On behalf of the 1 st Respondent, it was submitted that the 1 st Respondent was not a party to the High Court suit No. E004 of 2021. Counsel referred to Article 162 (2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, which vest jurisdiction over all disputes relating to land and contracts over land in the ELC Court.
27. I have considered the submissions and find that the trial court did have jurisdiction in the dispute between the 1 st Respondent and the Defendants in the suit. The dispute was a claim to title to land based on purchase and occupation. As regards the originating Summons in the High Court, the 1 st Respondent was not a party, and the issues in controversy herein were not canvassed or decided on.
The trial Court did not therefore err in proceeding to entertain the application in the suit.
The next issue for determination is whether or not the1 st Respondent’s suit was statute-barred by dint of section 7 of the Limitation of Actions Act.
28. It was submitted on behalf of the appellant that the suit was filed after 14 years from the date of the alleged agreement. That under section 7 of the Limitation of Actions Act, suits for the recovery of land should be filed within 12 years from the date the cause of action accrued. Counsel relied on the case of Edward Moonge Lengusuranga -vs- James Lanaiyosa & Another eKLR and Igaa -vs- Makerere University 1972 EA to support the submission. That the trial court, in granting the orders sought, arrogated itself jurisdiction to entertain that which was barred in law and hence erred.
29. On behalf of the 1 st Respondent, it was submitted that the 1 st Respondent’s claim was not a claim to recover land from a hostile possessor but rather a claim to protect his continuing and subsisting equitable possessing interest against a third party seeking to interfere with it. That, moreover, section 26 of the Limitation of Actions Act preserves the right of a person in possession to bring an action where fraud is discovered.
30. I have considered the issue of limitation vis-à-vis the provisions of sections 7 and 26 of the Limitation of Actions Act and vis-à-vis the cause of action as pleaded in the plaint. The major complaint in the plaint was contained in paragraph 9 of the plaint, which was about the advertisement of the suit land for sale by the 3 rd Defendant on behalf of the appellant. From the pleadings in the plaint, the cause of action accrued on the date when the advertisement for sale was discovered which was in the year 2023 . I find that the suit was not time-barred.
Conclusion
31. Having arrived at the determination that the 1 st Respondent met the threshold for grant of an order of temporary injunction, that the trial court had jurisdiction to try the suit and that the suit was not statute-barred, the court finds that the trial court did not err in allowing the application for injunction and that the appeal lacks merit.
32. For the foregoing reasons, the appeal is hereby dismissed. Because the main suit is still pending hearing and determination, each party shall bear its own costs of the appeal.
Orders accordingly.
Judgment dated and signed at Vihiga and delivered this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang- Court Assistant.
Sila h/b for Kotonya for the Appellant
Komora h/b for Akenga for the 1 st Respondent.
ELCLA NO E025 OF 20252
1. The record of appeal filed herein dated 26th January 2026 shows that the appellant herein is the 2 nd Defendant in VIHIGA MC E&L CASE NO. E048 OF 2023 (the suit) in which the appellant, together with ALFAYO MAGOMA OKOTSI (the 2 nd Respondent herein) and KEYSIAN AUCTIONEERS, was sued by the 1st Respondent in this appeal vide the plaint dated 22 nd August 2023.
2. The case of the 1 st Respondent was that he had bought land parcel known as LR KAKAMEGA/CHAGENDA/459 measuring 0.48 Ha (the suit land) at Kshs 250,000/- from the 2 nd Respondent who subsequently became reluctant to transfer the land sold to him (1 st Respondent). That he had taken possession of and developed the suit land. That the suit land was advertised for sale by public Auction by Keysian Auctioneers, who was the 3 rd defendant in the suit, on behalf of the appellant herein.
3. The 1 st Respondent therefore sought orders of permanent injunction, declaration that the intended sale was unlawful and untenable in law hence null and void ab initio, an order that the appellant re-open the charge to enable settlement of the loan by instalment until payment in full and also a declaration that the 1 st Respondent duly and legally acquired the land and should be registered as the owner, furthermore, an order directing the 2 nd Respondent herein to sign the relevant transfer forms for transfer of the suit land in favour of the 1 st Respondent failing which the court be mandated to execute the transfer forms, costs of the suit and interest.
4. The record shows that the appellant, the 2 nd and 3 rd Defendants filed a Defence dated 6 th February 2024 vide which it denied the plaintiff's claim and averred that the advertisement of the suit property for sale by public auction was lawful. The appellant averred that the suit disclosed no reasonable cause of action and urged the court to strike it out. The appellant further prayed that the suit be dismissed with costs.
5. Together with the plaint, the 1 st Respondent filed a Notice of Motion application dated 22 nd August 2023, expressed to have been brought pursuant to the provisions of Section 3, 3A & 63(e) of the Civil Procedure Act, Order 40 Rule 1 Civil Procedure Rules and Sections 89, 90, 91, 103 & 104 of the Land Act, 2012. The application sought orders that: -
i. The Honourable Court be pleased to issue a temporary order of injunction restraining the Defendants / Respondents jointly from selling, disposing of by way of public auction the plaintiff's / applicant's land parcel Number KAKAMEGA / CHAGENDA / 459 pending the hearing and determination of the suit
ii. Costs of the application be provided for.
6. In response to the application, the appellant filed Grounds of Opposition dated 29 th August, 2023 and the Defendant’s / Respondent’s Replying Affidavit opposing the application.
7. The record shows that the application was heard by the trial court by way of written submissions. The trial court, vide its ruling dated 23 rd January 2024, found that the application had merit and allowed it by issuing an order of temporary injunction as prayed and making an order that costs be in the cause.
The Appeal
8. Aggrieved by the ruling, the appellant preferred the present appeal vide the Memorandum of Appeal dated 22 nd December 2023. The appeal was filed pursuant to leave granted on 10 th December 2025. The grounds of appeal are that:
a. The learned Magistrate erred in law and misdirected herself by finding that the 1st Respondent was entitled to an order of interlocutory injunction restraining the appellant from disposing of the property L.R No. KAKAMEGA / CHAGENDA / 459 in exercise of its statutory power of sale.
b. The learned Magistrate erred in law and misdirected herself by finding that the 1st Respondent had satisfied the grounds for the grant of the interlocutory injunction.
c. The learned Magistrate erred in law and fact by disregarding the Appellant's objection to the jurisdiction of the court.
d. The learned Magistrate erred in law in disregarding the appellant's objection that the 1st Respondent's suit was time-barred
e. The learned Magistrate erred in law and fact by allowing the 1st Respondent's application dated 22 nd August 2023.
9. The appellant seeks orders that the appeal be allowed, the ruling delivered on 25 th January 2024 be set aside in its entirety, and the costs of the appeal be awarded to the appellant.
Submissions
10. The appeal was heard by way of written submissions. On behalf of the appellant, written submissions dated 7 th April 2026 were filed by Kotonya Njoroge LLP Advocates, while on behalf of the 1st Respondent, written submissions dated 8 th May 2026 were filed by AK Advocates LLP. I shall refer to the submissions as I determine the issues of the appeal.
Issues for determination
11. From the grounds of appeal, the appellant framed 3 issues for determination in the appeal, namely: -
i. The 1 st Respondent did not satisfy the grounds for grant of interlocutory
injunction.
ii. The honourable trial court lacked jurisdiction to hear the 1st Respondent's
suit.
iii. The 1 st Respondent’s suit was statute-barred by dint of Section 7 of the Limitation of Actions Act.
The court adopts these as the issues for determination herein.
Analysis and determination
12. This being a first appeal, this court is obligated to re-analyse the evidence/material placed before the trial court and draw its own conclusions. In Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. That
“An appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”
Guided accordingly, I proceed to determine the issues herein.
The 1 st issue for determination is whether or not the 1 st Defendant satisfied the
grounds for grant of an order of temporary injunction.
13. The grounds upon which the application for temporary injunction was brought, as indicated in the Notice of Motion and the Supporting Affidavit sworn by Evans Arunga Kinara, were that the applicant (1 st Respondent herein) was the lawful owner of the suit land, having acquired prescriptive rights by virtue of purchasing it from the 1 st Defendant. That the Respondent had peacefully occupied and developed the land since 2009. That the 2 nd Defendant (the appellant herein) had instructed Keysian Auctioneers Ltd, who had set in motion the process of realizing the suit parcel of land charged to the appellant as security. That it was prudent that the Applicant be given a chance to redeem the property before the intended sale. That the intended sale was unlawful as the appellant had a remedy to sue for the outstanding amount owing; hence the appellant's action was premature.
14. It was contended that the applicant's family depends on the property for survival, both to earn a living and for sustainability. That the intended sale was an infringement of the applicant's right to own property and was contrary to the provisions of the Constitution of Kenya 2010, and section 91(1) and (2) of the Land Act 2012. That unless the order sought is granted, the plaintiff shall suffer great harm and prejudice and irreparable loss.
15. The grounds upon which the application was opposed were that the applicant did not have any binding interest in the suit property that was capable of defeating the appellant's legal interest in the property. That there was no privity of contract between the applicant and the appellant to warrant issuance of the order sought. That the applicant’s purported claim was for breach of contract which may be compensated through damages by the relevant party. That the application and the entire suit were a non-starter, bad in law and an abuse of the Court process and ought to be dismissed.
16. The record shows that the trial court, in arriving at the ruling, considered that the applicant had availed a sale agreement and that the appellant and the 3 rd Defendant in the suit had chosen to remain quiet over the same. The Court found that the balance of convenience lay with granting the order of temporary injunction to avoid further hardship.
17. The appellant faults the trial court for this holding and contends that the applicant did not demonstrate or satisfy the grounds for grant of an order of temporary injunction. It was submitted in this appeal on behalf of the appellant that the 1 st Respondent did not establish a prima facie case with a probability of success as defined in Mrao Ltd -vs- First American Bank of Kenya Ltd and 2 Others (2003) KLR 125 . That the 1 st Respondent needs to adduce evidence to show infringement of a right. That by virtue of the provisions of sections 90 and 103 (1) of the Land Act, as amended by the Land Laws (Amendment) Act 2016, Act No. 28 of 2016, the 1 st Respondent lacked locus standi to restrain the appellant from exercising its statutory power of sale. That further, the 1 st Respondent did not demonstrate any interest in the land which overrides the appellant's interest which was endorsed in the property. For this submission, the appellant relied on section 36(5) of the Land Registration Act 2012 which provides that :
"Interests appearing in the register shall have priority according to the order in which the instruments which led to their registration were presented to the registry of the date of the instrument..."
18. Counsel submitted that even if the 1 st Respondent had demonstrated a prima facie case, damages would be an adequate remedy. Counsel submitted further that the 1st Respondent would not suffer irreparable injury if the honourable trial Court declined to grant an injunction. That the suit land was registered in the name of the 2 nd Respondent. That the 1st Respondent failed to establish any proprietary interest in his favor over the suit property. Counsel relied, inter alia, on the case of Nairobi Mamba Village vs National Bank of Kenya (2002) EA 197, cited with approval in Bank of Africa Kenya Limited & Another -vs- 755 Investment [2002] Limited & 2 Others KECA 410 (KLR ), where it was held that the only person who can legitimately complain that the power of sale is being exercised unlawfully, irregularly or oppressively is the Chargor. That the 1 st Respondent failed to establish any of the grounds set in the law for the grant of an order of injunction restraining the appellant from selling/exercising statutory power of sale and that therefore the trial Magistrate erred in holding otherwise.
19. On behalf of the 1 st Respondent, it was submitted that the 1 st Respondent clearly met the threshold for the grant of an order of temporary injunction. That the Respondent had been in possession of the suit property since 2009 pursuant to a valid and subsisting sale agreement with the 2 nd Respondent. That he had made significant improvements on the land and holds the original title deed of the suit property, which was handed over by the 2 nd Respondent upon completion of payment of the purchase price. Counsel relied on the case of Mwangi & Another v Mwangi 1986 KLR 328, where it was held that a purchaser in actual possession holds an equitable interest in the land capable of overriding subsequent dealings with the property. Counsel submitted that a question arises as to whether the appellant did due diligence. And that Section 76(3) of the Land Registration Act No. 3 of 2012 requires that a charge over land be registered as an encumbrance on the title, yet the original title remained with the 1 st Respondent, a fact that undermines the appellant's claim to a perfected charge. That the irregularities surrounding the appellant's charge are triable issues that the 1 st Respondent is entitled to have ventilated before the trial Court.
20. On irreparable harm, Counsel submitted that the suit property is not just a piece of land to the 1 st Respondent but his home into which he has invested his life savings and labour over 14 years. That the sale of the property would visit upon the 1 st Respondent a catastrophic and irreversible loss that cannot be compensated by way of damages. Counsel relied on the case of Nguruman Limited -vs- Jan Bonde Nielsen & 2 Others (2014) eKLR to support the submission.
21. Counsel submitted further that the balance of convenience tilted in favour of granting the order sought as the 1 st Respondent stood to lose his home and all the investment made thereon. That granting the injunction would preserve the status quo and ensure that the substantive rights of both parties are determined on merit. Counsel submitted that the learned Magistrate exercised her discretion correctly.
22. I have considered the submissions and the record of appeal. The grounds for grant of temporary injunction are provided in Order 40 Rule 1. The suit land was indeed threatened with sale as the same had been advertised for sale by the 3rd Defendant by public auction. The 1 st Respondent’s claim over the suit land was based on purchase and prolonged occupation and development thereof. The 1 st Respondent had deposed in paragraph 2 of the Supporting Affidavit that he bought the land from the 2 nd Defendant on 15 th September 2009. To the Supporting Affidavit was annexed a document marked EAK 2 described by the 1 st Respondent as an agreement and photographs marked EAK 3 to show his development on the land. He also exhibited copies of documents including a copy of the title deed that were allegedly surrendered to him by the 2 nd Respondent upon purchase.
23. It is not denied that the purported purchase by the 1 st Respondent came long before the purported Charge in favour of the appellant.
24. The essence of an order of temporary injunction is to preserve the status quo of the subject matter pending hearing of the suit. Based on the material placed before the trial court, the threshold for grant of a temporary injunction had been established to warrant grant of the orders sought. Perhaps to secure the interest of the appellant, the trial court should have required the 1 st Respondent to provide an undertaking for costs should it later turn out that there were no grounds to grant the injunctive orders. I find that the trial court did not err in granting the relief sought.
The next issue for determination is whether or not the trial court had jurisdiction
to hear and determine the suit.
25. In paragraph 4 of the Defence the appellant denied the jurisdiction of the trial court to entertain the suit. It was submitted on behalf of the appellant in this appeal that on 30 th August 2022, the High Court delivered a judgment in VIHIGA PM HCC NO E004 of 2021 granting the appellant leave to sell the suit property. That with the existence of the valid
order issued by the superior court, the trial court lacked jurisdiction to issue any contrary order. Counsel relied on the case of the Owners of the Motor Vessel "Lillian S" -vs- Caltex Oil Kenya (1989) KLR 1 and the provisions of section 3(3) of the Law of Contract Act, among other authorities.
26. On behalf of the 1 st Respondent, it was submitted that the 1 st Respondent was not a party to the High Court suit No. E004 of 2021. Counsel referred to Article 162 (2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, which vest jurisdiction over all disputes relating to land and contracts over land in the ELC Court.
27. I have considered the submissions and find that the trial court did have jurisdiction in the dispute between the 1 st Respondent and the Defendants in the suit. The dispute was a claim to title to land based on purchase and occupation. As regards the originating Summons in the High Court, the 1 st Respondent was not a party, and the issues in controversy herein were not canvassed or decided on.
The trial Court did not therefore err in proceeding to entertain the application in the suit.
The next issue for determination is whether or not the1 st Respondent’s suit was statute-barred by dint of section 7 of the Limitation of Actions Act.
28. It was submitted on behalf of the appellant that the suit was filed after 14 years from the date of the alleged agreement. That under section 7 of the Limitation of Actions Act, suits for the recovery of land should be filed within 12 years from the date the cause of action accrued. Counsel relied on the case of Edward Moonge Lengusuranga -vs- James Lanaiyosa & Another eKLR and Igaa -vs- Makerere University 1972 EA to support the submission. That the trial court, in granting the orders sought, arrogated itself jurisdiction to entertain that which was barred in law and hence erred.
29. On behalf of the 1 st Respondent, it was submitted that the 1 st Respondent’s claim was not a claim to recover land from a hostile possessor but rather a claim to protect his continuing and subsisting equitable possessing interest against a third party seeking to interfere with it. That, moreover, section 26 of the Limitation of Actions Act preserves the right of a person in possession to bring an action where fraud is discovered.
30. I have considered the issue of limitation vis-à-vis the provisions of sections 7 and 26 of the Limitation of Actions Act and vis-à-vis the cause of action as pleaded in the plaint. The major complaint in the plaint was contained in paragraph 9 of the plaint, which was about the advertisement of the suit land for sale by the 3 rd Defendant on behalf of the appellant. From the pleadings in the plaint, the cause of action accrued on the date when the advertisement for sale was discovered which was in the year 2023 . I find that the suit was not time-barred.
Conclusion
31. Having arrived at the determination that the 1 st Respondent met the threshold for grant of an order of temporary injunction, that the trial court had jurisdiction to try the suit and that the suit was not statute-barred, the court finds that the trial court did not err in allowing the application for injunction and that the appeal lacks merit.
32. For the foregoing reasons, the appeal is hereby dismissed. Because the main suit is still pending hearing and determination, each party shall bear its own costs of the appeal.
Orders accordingly.
Judgment dated and signed at Vihiga and delivered this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang- Court Assistant.
Sila h/b for Kotonya for the Appellant
Komora h/b for Akenga for the 1 st Respondent.
ELCLA NO E025 OF 20252