The Applicants vide a Notice of Motion application under certificate of urgency dated 7th October 2025 seek the following orders;
1. (SPENT).
2. THAT an interim injunction be and is hereby issued to restrain the Respondent acting either himself and/or through his agents, servants and/or family members from entering, taking possession of, evicting and/or otherwise interfering with the Applicants’ use of land parcel W.BUKUSU/N.MATEKA/1633 pending the hearing and determination of this application interpartes.
3. THAT a temporary injunction be and is hereby issued to restrain the Respondent acting either himself and/or through his agents, servants and/or family members from entering, taking possession of, evicting and/or otherwise interfering with the Applicants use of land parcel W.BUKUSU/N.MATEKA/1633 pending the hearing and determination of this suit.
4. THAT costs be provided for.
The application is based on four grounds shown on the face of the said application and the supporting affidavit of the Applicant sworn on even date. According to the Applicants, the Respondent is the registered owner of land parcel NO. W.BUKUSU/N.MATEKA/633 and that they were jointly put in possession of the suit land by their father in the year 2000 when he was the registered owner. They contend that they have extensively developed the land by growing and cultivating crops including trees and bananas.
The Applicants further contend that the Respondent who has never been in possession of the suit land started evicting them from the suit land alleging that he purchased it from their father and even constructed a temporary structure.
The Applicants even allege that the Respondent is violently cutting down crops and erecting a temporary structure using hired goons. They contend that the Respondent’s title to the suit land has extinguished by operation of law and that they ought to be registered as owners.
In his Supplementary affidavit sworn on 28th October 2025, the Applicant stated that the Replying affidavit is full of contradictions and utter falsehoods as the Respondent has never been in possession of the suit land. He stated that the Respondent has concealed material facts including the glaring fact that the Respondent caused him to be charged with the offence of forceful detainer of the suit land vide Bungoma Criminal Case NO. 1312 of 2025.
That the suit against his brother MARK BARASA MATIFARI in Bungoma ELC NO. 68 of 2013 (formerly CMCC NO. 318 of 2012) is irrelevant and has no bearing to these proceedings since they were not parties to that suit.
The application is opposed by the Respondent vide a Replying affidavit sworn on 23rd October 2025 in which he confirmed that he was the registered owner of land parcel NO. W.BUKUSU/N.MATEKA/1633, having purchased the same from the father and husband of the Applicants, one Luka Matifari Opata(deceased) in 2008.
He stated that at the time of purchase, only one member of the Applicants’s family, Mark Barasa Matifari occupied a small portion and when he declined to vacate, he sued him in BUNGOMA ELC NO. 68 of 2013. He annexed copies of the proceedings and marked ‘JMS-2’
He deposed that if indeed the Applicants were in occupation of the suit land as alleged in the year 2000, they would have sought to be joined as parties in the former suit being BUNGOMA ELC NO. 68 of 2013. He stated that he has been in peaceful and exclusive possession of the suit land since 2015 and has developed it by constructing a house and cultivating crops and that the photographs annexed by the Applicants are for his house and crops. He stated that the Applicants are neither in occupation nor possession of the land and therefore, nothing to restrain.
The Respondent further deposed that the allegations that he has started eviction or destruction of crops are false and malicious intended only to mislead the court. He stated that to the contrary, the Applicants and their agents have repeatedly trespassed on the suit land forcing him to make several reports at Mayanja, Bungoma and Bumula Police Stations. He annexed copies of Occurrence Book marked ‘ JMS-4’.
In conclusion, the Respondent argued that the Applicants have failed to meet the well-established principles for the grant of injunction orders as laid down in the case of Giella v Cassman Brown (1973) EA 358.
LEGAL ANALYSIS AND DECISION.
I have considered the Notice of Motion application under review, the supporting affidavit, the supplementary affidavit, the Replying affidavit, the annexures thereto and the relevant law. The principles for the grant of a temporary injunction were enunciated in the celebrated case of GIELLA-V-CASSMAN BROWN (1958) E.A 358. In that case, the Court set out three conditions a party must satisfy the court before being granted the orders as follows;
1. Prima facie case with high chances of success.
2. Demonstrate that he/she will suffer irreparable loss which cannot be compensated by an award of damages unless the injunction order is granted and
3. Where the court is in doubt, it may decide the matter on a balance of convenience.
It is not in doubt that the Applicants have instituted this suit for a claim of adverse possession, alleging that they have been in possession and occupation of the suit land for the statutory period of twelve (12) years. The Respondent on his part has denied the Applicants’ allegation and contend that he is the registered proprietor and the one in actual possession of the suit land. Copies of charge sheet, occurrence Book and proceedings in BUNGOMA ELC Case NO. 68 of 2013 (Formerly CMCC NO. 318 of 211 between the Respondent and one Mark Barasa) were annexed to the Replying and Supplementary affidavits of the Applicants and the Respondent. From the pleadings and proceedings in the said suit being Bungoma ELC NO. 68 of 2013 (Formerly 318 of 2011), It is not in dispute that Mark Barasa and the Applicants in the present suit are siblings. I agree with the Respondent that if indeed the Applicants were in possession and occupation of the suit land from the year 2000 as alleged, they would have been joined as parties in the former suit NO. BUNGOMA ELC NO. 68 of 2013 (Formerly CMCC NO.318 of 2011). The Applicants have stated that they have extensively developed the suit land by growing crops and cultivating crops while the Respondent in the Replying affidavit denied that the Applicants are in possession and occupation of the disputed land and that the photographs annexed by the Applicants to the supporting affidavit are for his house and crops.
It is not in dispute that the suit property is registered in the name of the Respondent. The law enjoins this court to take judicial notice that a certificate of title or a title deed issued to a proprietor of land is a prima facie evidence of ownership. The question as to who is in actual possession and occupation of the suit property is in contention as both the Applicants and the Respondent claim to be in possession and occupation. The Applicants even admitted at paragraph 7 of the supporting affidavit that the Respondent started evicting them and even constructed a temporary structure. I therefore agree with the Respondent that the photographs of a temporary structure annexed to the supporting affidavit actually belong to him and not the Applicants. I therefore find that the Applicants have not established the first condition of a prima facie case.
At paragraph 10 of the supporting affidavit, the Applicants stated that they shall suffer loss and damages unless the orders sought are granted. However, they have not substantiated the alleged loss and/or damage. It is not sufficient for the Applicants to make such allegations without substantiation or demonstration. Again I find that the Applicants have failed to establish the second condition for the grant of injunctive orders.
Having failed to establish the first two conditions for the grant of injunctive orders follows that the matter may now be decided on a balance of convenience. In deciding whether the injunctive orders should issue or not under this last limb, this court shall determine as to which party will suffer the greater harm with the outcome of the motion. If the Applicants have a strong case on the merits or there is significant irreparable harm, it may influence the balance of granting the injunctive order. The court will consider if it is fair and equitable to grant the injunction, taking all the relevant facts into consideration. I am alive to the fact that at this stage, I am not determining the main suit and my role is to determine whether the Applicants have established a prima facie case against the Respondent so as to qualify for the orders sought in the application. in my view, there is no material before the court that the inconvenience caused to the plaintiffs/Applicants would be greater than that which may be caused to the defendant/Respondent. The application dated 6th day of October, 2025 therefore fails and the same is hereby dismissed with costs to be in the cause.
It is so ordered.
READ, DELIVERED and SIGNED at Bungoma this 11th day of December, 2025
……………………………………..
HON. E.C CHERONO
ELC JUDGE
In the presence of;
1.Mr. Were for the Applicant.
2. M/S Nekesa H/B for Kapten for the Respondent.
3. Bett C/A.