MAGRET AUMA OMOLO VS ISACK HABIL ONYANGO

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(On grant of Injunction at Interlocutory Stage)
Introduction
1. The Applicant filed a Notice of Motion application dated 24th April 2025. It was supported by an affidavit deponed by her the same date. The application is premised on a claim by her for adverse possession of a one (1) acre portion of land in all that parcel of Land L.R. No. Rusinga/Kaswanga/Wanyanga/635 which is registered in the name of the Respondent and his deceased father, Raphael Omondi.
The Application
2. The applicant prays for the following:
a) …Spent
b) …Spent
c) THAT pending the hearing and determination of this Originating Summons, this Honorable Court does issue an order of injunction restraining the Defendant, whether by themselves, their employees, servants or agents or any other person or body of person from offering for sale, leasing, mortgaging, charging, transferring or assigning, subdividing and/or otherwise dealing, fencing off, evicting the Plaintiff, demolishing structures and/or buildings, and/or interfering with quiet possession of the Plaintiff of 1 acre, being part of that parcel of land known as L.R No. RUSINGA/KASWANGA/WANYAMA/635.
d)  THAT this Honourable court does issue preservatory order directing the Land Registrar Homabay to stop any dealing and/or transactions in the entries of the register relating to land parcel of land known as L.R NO. RUSINGA/KASWANGA/WANYAMA/635.
e) THAT costs of this Application be provided for.
3. In her lengthy Affidavit, the Applicant deponed that her deceased husband moved onto and settled on land parcel Kaswanga/Wanyama/716 in 1983. He established a home thereon before demarcation and/or adjudication of land in the Kasangwa/Wanyama area.
4. Besides establishing a home, the Applicant together with her husband, fenced, cultivated crops, planted trees and constructed semi-permanent structures on the disputed one (1) acre parcel of land. She attached a copy of a certificate of official search indicting that the land was registered in the name of her deceased husband. The title thereto was issued in 1993.
5. The Applicant deponed that the Respondent is her neighbor who owns land parcel Kaswanga/Wanyama/635. He owns it as a tenant in common with his late father. She maintained that she had been on the disputed one acre portion of land from 1983 to date, albeit, she discovered that her neighbor was laying a legal claim over the same parcel of land in 2021 when the Respondent’s mother raised this issue of ownership with the area chief. The chief, according to the applicant, referred the matter to the land registrar for resolution.
6. She further deponed that the Respondent’s mother did not prefer having the matter determined by the Land Registrar. Instead she enlisted the help of the Deputy County Commissioner Mbita, who threatened the applicant with demolition of her structures, and eviction from the disputed property. She attached a letter addressed by her advocate to the said Deputy County Commissioner asking him to refrain from the harassment and intimidation visited upon his client.
7. The Applicant maintained that she filed two suits in relation to the land dispute, being MBITA ELC No. 016 of 2021 in which the court granted orders preserving the substratum of the suit. She, however, withdrew the suit for want of jurisdiction. She filed MBITA ELC CASE No. 025 of 2024 which was dismissed. She stated that she subsequently appealed the decision in Mbita ELC 025 of 2025.
8.  When the parties appeared before this court on 4th March, 2025 the parties agreed to negotiate the matter, failing which the applicant would be free to withdraw MBITA ELC CASE No. 025 and file a new suit at an appropriate forum. The applicant deponed that even before the negotiations could begin, the Respondent begun harassing her at her home with threats of eviction. She deponed that she was arrested on 11th March, 2025 and has constantly been harassed by the Respondent with the help of other people on account of the disputed one (1) acre portion land.
9. The Applicant maintains that she has continuously openly lived on the one (1) acre portion land for twelve years without the authority of the Respondent. She thus prays for orders restraining the Respondent from harassing and evicting her from the 1-acre portion of land until the determination of the suit.
10. She annexed as MAO 1 to the Affidavit a copy of a letter Ad Litem to show that she was the suing on behalf of the Estate of John Omolo Anditi (deceased). She also annexed as MAO 2 a copy of a certificate of official search for parcel No. Kaswanga/Wanyama/716 to show that her husband John Omolo Anditi was the owner, and MAO 3 a copy of the title deed to show that the Defendant was the co owner of parcel No. 635; annexture MAO 4 a copy of a letter written to the Deputy County Commissioner; MAO 5 a copy of the Ruling dismissing the Mbita ELC E025 of 2024; MAO 6 a copy of an order in Homabay ELC Appeal No. E053 of 2024 which directed that there be a negotiation; annexture MAO 7 and a letter to the Directorate of Criminal Investigation (DCI) Mbita to desist from harassing the applicant; MAO 8 a surveyor’s report; and MAO 9A to D photographs of the Plaintiff’s settlement on the suit land.
The Response
11. The Respondent swore a Replying Affidavit dated 29th April, 2025 in which he vehemently denied the applicant’s allegations. He maintained that he was the registered co-owner of all that parcel of land known as L.R. RUSINGA/KASWANGA/WANYAMA/635 having been registered as such in 1992. This, property holds 1 acre of land that is the subject of the dispute in this application. The other registered co-owner was Raphael Onyango, the respondent’s father, whose estate has not been the subject of any succession proceedings.
12. He dispelled the applicant’s allegations on adverse possession and alleged that the applicant came onto the property in 2021 and had never utilized the disputed property since then. It was his contention that the applicant has never enjoyed quiet, peaceful, and undisrupted occupation of the suit property. In any event, he maintained that the had erected his traditional house in LR RUSINGA/KASANGWA/WANYAMA 635 and that his deceased father is buried in the said property.
13. The respondent deponed in 2020, his family decided to transition from live fence to barbed wire fencing, a move he stated was aimed at enhancing security around their homestead. It was at this point that the Respondent and his family realized that the Applicant was laying claim over a portion of their land, which she claimed was supposed to be part of her land parcel KASWANGA/WANYAMA/716. He attached a copy of the green card records for land parcel KASWANGA/WANYAMA/716.
14. Further, the Respondent maintained that his mother reported the matter to the area Assistant Chief, who advised the parties to seek the services of surveyor for purposes of demarcating the bounders. He deponed that the applicant never complied with this directive, despite his side of the family having been ready to pay the surveyor’s fees. It was at this point that the applicant’s mother reported the matter to the Mbita sub-county Deputy County Commissioner for assistance.
15. That thereafter, the applicant’s advocate wrote a letter to the Mbita Sub-County Deputy County Commissioner and the Land Registrar and before the boundaries could be demarcated, she begun filing cases being MBITA ELC CASE no. 016 of 2021 and MBITA ELC no. 025 of 2024. The respondent maintains that parties were ordered by this court to negotiate but before the negotiations could begin, the applicant begun fencing the disputed portion of land hence necessitating his family member to report her to the police. He maintained that the applicant was forced to remove the barbed wire fence after summons to the police and attached a copy of the police OB as well photos of the suit property.
16. The Respondent maintains that the applicant’s claim over the disputed portion of land only begun in 2021 and none of the parties has never been in occupation of the said land since 2021. He reiterates that the Applicant has never had an open, notorious, continuous, and exclusive possession of the disputed portion of land as evidenced by the several court cases filed with regard to the same property as well as the fact of the Applicant having been arrested in connection with the property.
17. He dopones that the Applicant is a mere trespasser and an intermeddler of an estate of a deceased person and that the fact of land parcel RUSINGA/KASWANGA/ 635 being unadministered made it impossible to discern whether the disputed portion belongs to the Respondent. He maintains that the application is baseless and prays that it be dismissed with costs.
The Submissions
18. The Applicant filed her submissions dated 17th May, 2025 in which she argued that her application had met the threshold established in Giella v Casssman Brown [19730] EA 358 for the grant of injunctive orders.  She submitted she had established a prima facie case, having annexed evidence that she had been in occupation of the disputed portion of land for over 30 years.
19. She argued that she would suffer irreparable injury if the injunctive orders were not granted. She relied on Francis Githini Karobia V Stephen Kagoni Gitau [2017] eKLR to emphasize the unique nature of land and the inadequacy of damages as mode of compensation, especially because of the attachment she had with the land, having served as her home for over 30 years. Lastly, the Applicant maintained that the balance of convenience tilted in her favor after having established a homestead in the disputed portion of land, which albeit registered in the respondent’s name, the latter never raised any issue with her occupation until 2021. Heaving done so, it is the Applicant’s submission that the respondent will not suffer any prejudice should the injunctive orders be granted.
20. The Respondent in his submissions dated 23rd May, 2025 disputed any open, peaceful, exclusive, notorious, and continuous occupation of the disputed 1-acre parcel of land as alleged by the applicant. He maintained that occupation by the applicant, if any, begun in 2021 and such occupation was vehemently resisted by respondent as witnessed by the various court cases concerning the said parcel.
21. The Respondent argued that none of the parties is currently occupation of the land. As such the respondent submitted that the applicant has not established any prima facie case with a probability of success.
22. On the issue if irreparable injury, the respondent maintained that the applicant’s case had no probability of success and even it did succeed, any consequential injury could easily be remedied by way of damages.
23. Lastly, the respondent submitted that the balance of convenience tilted in his favor, being the registered of the property in dispute and being the party in actual possession and use of the larger parcel of land in which there is a dispute concerning the ownership of the 1- acre portion of land in KASWANGA/WANYAMA/635.
Issues for Determination and Analysis
24. The grant of order in an application of this nature is discretionary. The issues for determination in this application is whether the applicant should be granted the injunctive reliefs as sought in her application and who to bear costs of he Application.
25. The law on the grant of injunctions is well settled. In Giella v Cassman Brown [1973] EA 358, the court established that party seeking an injunction should fulfil three conditions:
a) The applicant must establish his case at the prima facie level;
b) The applicants should demonstrate that he stands to suffer irreparable harm/injury, which cannot be remedied by way of damages; and
c) If the court is in doubt concerning the above two stated conditions, the balance of convenience should tilt in favor of the applicant.
26. As was observed by my brother, Wananda, J. In Re Estate of Magdalena Kabon Sawe (Deceased) (Succession Cause E034 of 2023) [2024] KEHC 9228 (KLR) these three conditions should be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. I will proceed to analyze them as such.
27. The parties, in their respective affidavits and submissions, have given conflicting accounts on the use and occupation of the 1-acre parcel of land that is now the subject of the instant dispute. I am, however, alive to the fact that this Court is not expected to resolve this dispute in its entirety at this interlocutory state. To this end, I will place reliance on the material presented before me to establish whether the applicant has met the conditions set out in Giella v Cassman Brown (supra).
28. As to whether the applicant has demonstrated a prima facie case, I agree with my brother Ombwayo, J that ‘‘a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed.’’ In Mrao Limited v the First American Bank of Kenya & 2 others [2003] KLR 125, at paragraph 17 the Court of appeal defined a prima facie case in the following terms:
‘‘In civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter’’.
29. It is not lost to this Court that the claim before me is one of adverse possession whose main feature before going far is that the claimant is in possession. I have looked at the evidence presented by both parties by way of their respective affidavits and analyzed the arguments contained in their submissions. On the one hand, the applicant has presented a surveyor’s report dated 3rd April 2024 which among other things demonstrates the use of the disputed land as being consistent with that of land parcel KASANGA/WANYAMA/716, which is the applicant’s parcel of land. This time frame from the survey spans the period between 2001-2023. It is my considered humble view that the time frame, prima facie, is beyond the 12-year statutory period which bases a claim on adverse possession.
30. On the other hand, I note that, although the Respondent has presented a Google Earth image dated 17th February, 2020 and showing the unfenced disputed 1-acre portion of land. It is unclear whether the fence may have been removed or it did not exist at all. For now, my view is that the applicant has established a prima facie case for purposes of pursuing a claim in adverse possession.
31. As to whether the applicant has demonstrated that she would suffer irreparable loss that may not be compensated by way damages, I note the Respondent argued that the applicant’s case has no possibility of success and as such the issue of compensation would not arise.  Even so, the Respondent proceeded to argue that the applicant’s injury, if any, can be remedied by way of damages. Now that I have determined that the applicant has established a prima facie case with possibility of success, I concur with the applicant that land, unlike other subject matters in litigation is a unique, and when changed in character damages may not be appropriate.  That limb has been proved.
32. The last limb of the test for granting injunctions relates to whether the balance of convenience tilts in favor of the applicant. In Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR the court established that:
The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed...
33. Both parties submitted that the balance of convenience tilts in their favor. The respondent argued that he, together with his deceased father are the registered owners of the suit property and as such, the balance of convince does not tilt in favor of the applicant. He submitted that he has established a home in the larger portion of land parcel KASANGA/WANYAMA/635.
34. Despite the aforestated argument, I note the dispute herein does not relate to the larger portion of the land parcel KASANGA/WANYAMA/635 but the 1 acre-portion of land that boarders the applicant’s land across the murram road as depicted in the maps presented by both parties.
35. The applicant on the other hand submitted that she has resided on the suit property on the disputed portion of land for over 30 years and has established a home therein. She maintained that such occupation has been without interference from the respondent, up to the year 2021. In spite of these conflicting positions, I am inclined to find the balance of convenience tilts in favor of the applicant.
36. In the upshot, I find and hold that the applicant’s application dated 24th April, 2025 is merited. It is allowed in terms of prayers 3 and 4 of the application. Thus, the Court orders as follows:
a) THAT pending the hearing and determination of this Originating Summons, this Honorable Court hereby issues an order of injunction restraining the Defendant(s), whether by themselves, their employees, servants or agents or any other person or body of person from offering for sale, leasing, mortgaging, charging, transferring or assigning, subdividing and/or otherwise dealing, fencing off, evicting the Plaintiff, demolishing structures and/or buildings, and/or interfering with quiet possession of the Plaintiff of 1 acre, being part of that parcel of land known as L.R No. RUSINGA/KASWANGA/WANYAMA/635 for the next twelve months.
b)  THAT this Honourable court hereby issues a preservatory order directing the Land Registrar Homabay to stop any dealing and/or transactions in the entries of the register relating to land parcel of land known as L.R NO. RUSINGA/KASWANGA/WANYAMA/635.
c) The injunction, shall, unless extended, last for twelve months from this date.
d) The suit shall be mentioned on 25th November, 2025 for compliance with Order 11 of the Civil Procedure Rule.
e) The costs of the application shall be in the cause.
37. It is so ordered.
Ruling dated, signed and delivered virtually via the Teams Platform this 25th day of September 2025.
DR. IUR FRED NYAGAKA
JUDGE
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From 3:05 PM to 3:15 PM in the presence of
Court Assistant: Ms. Fiona
Nyakwamba Advocate for the Respondent
Mr. Otieno Advocate for the Plaintiff applicant

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