RULING
1. The Plaintiffs moved the Court through Plaint dated 15th May 2025 wherein they averred that all the parties herein are beneficiaries of the estate of Maake Misiani (deceased) and that a grant in respect of the estate was issued in Nyamira CM Succession Cause No. 7 of 2019 and duly confirmed on 22nd November 2022. That in the confirmation, parcel number Manga Settlement Scheme 207 (the suit property) was distributed.
2. That despite the confirmation, the Defendants who are sons of the deceased vowed that the Plaintiffs who are daughters of the deceased would not inherit the suit property. They averred that they needed the Court’s protection from threats from the Defendants and access to their share of the suit property.
3. The Plaintiffs therefore prayed for judgment against the Defendants jointly and severally for an order authorizing the Nyamira County Surveyor and Land Registrar Nyamira to demarcate and subdivide the suit property to the beneficiaries as per the confirmed grant and that titles be issued accordingly.
4. Together with the Plaint, the Plaintiffs filed Notice of Motion dated 15th May 2025, which is the subject of this ruling. The following orders are sought in the application:
1. [Spent]
2. [Spent]
3. That a temporally (sic) injunction order do issue restraining the respondent either by themselves , their agents , servants, workers relatives or anybody having instructions from chasing away, threatening, demolishing the applicants houses on the land, trespassing, selling , building, fencing, encroaching, cutting down any crops , trees, fruits or intimidating, abusing, or in any way acting in disturbance of the applicant’s’ (sic) peace on their share of land as currentlily (sic) in use by the applicants in their respective shares as granted and shown on the ground through the order of this court in succession cause number Nyamira CMCC 7/2019 and confirmed by this court on 9th November 2022 in respect to land parcel number Manga Settlement Scheme207 as follows:
1. David Amenya Maake 4 acres
2. Jeremiah Misiani Maake 4 acres
3. Mary Moraa Maake 2 acres
4. Reuben Amenya Maake 4 acres
5. Martha Kwamboka Maake 2 ½ acres
6. Wilkster Maake (deceased) 2 acre
7. Sarah Bwari Maake 1 acre
8. Ruth Kwamboka 1 acre
9. Richatr Konga ½ acre
10. Roselyne Kemunto Otwori 1 acre.
Pending the hearing and determination of this suit.
4. That an order to issue that the land Registrar Nyamira and the Nyamira County Surveyor do visit the land Manga settlement scheme and demarcate the said land as per the grant dully confirmed by this court on the 9/11/2022 as herein annexed at the cost of the beneficiaries and respective titles do issue in the names of each beneficiary.
5. That the OCPD Manga Police station, OCS Manga Police Station, area chief, area assistant chief, assistant County Commissioner, The County Commissioner Nyamira be authorized to enforce compliance of the orders of this court during the process of subdivision and all demarcation to provide security to enable the officers Nyamira County Surveyor and Nyamira Land Registrar to complete the process of demarcation and finally issue respective title deeds as per the grant.
6. The respondents pay the costs of this application
7. Any other order this court may grant in the interest of justice.
5. The application is based on the grounds listed on its face and is supported by affidavits sworn by Mary Moraa Maake (Mary) and Ruth Kwamboka Maake (Ruth).
6. Mary deposed that the deceased died in the year 1997 and was survived the Defendants herein who are his sons and the First, Third to Sixth Plaintiffs who are his daughters. She reiterated that succession proceedings were filed in respect of the deceased’s estate and that certificate of confirmation of grant was issued as pleaded in the Plaint. She stated that the family engaged the firm of T. O. Nyangau Kemunto & Company Advocates to represent them and agreed that their fees would be paid by donating one acre of the suit property to the Second Plaintiff.
7. Mary further deposed that she and her sisters had tried to access their share of the suit property but were threatened and chased away by the Defendants who are their brothers. That the Defendants had assaulted some of the Plaintiffs, stated that the Plaintiffs cannot inherit their father’s estate and vowed not to respect the grant as confirmed. She added that prior to his death, the deceased had expressly shown that the daughters should take 10 acres of the suit property on the lower side while the Defendants should take 12 acres of the suit property on the upper side.
8. I have also read Ruth’s supporting affidavit. I note that the contents are essentially similar to those in Mary’s affidavit.
9. The First Defendant filed a replying affidavit which he swore on 11th June 2025. He deposed that he neither chased the Plaintiffs away nor demolished their properties and that the family had disagreements on how the Second Plaintiff and Richard Konga were included as beneficiaries, yet they were not heirs of the deceased’s estate while other rightful beneficiaries including Lydia Kemunto (deceased), Rebecca Moraa and George Ogwora (deceased) together with their young families were excluded.
10. The First Defendant further deposed that the First Plaintiff was sabotaging implementation of the confirmed grant and that id the orders sought are granted, the excluded beneficiaries will be rendered homeless.
11. The rest of the Defendants did not file anything in response to the application. Nevertheless, the Third defendant told the court that he does not oppose the suit. Similarly, the Second Defendant told the Court that all parties agreed save for the First Defendant.
12. When the application first came up for inter parte hearing, and upon noting that the dispute was between family members, I referred the entire suit to mediation. Unfortunately, the parties were unable to reach a settlement at the mediation.
13. Still harbouring hope that the parties would be able to amicably resolve the dispute, the matter was mentioned severally during the next six months. Yet again, no settlement was reached. Ultimately, I decided to have the application heard and concluded.
14. The application was canvassed through written submissions. The Plaintiffs filed submissions dated 2nd February 2026. The Defendants did not file any submissions.
15. I have considered the application, the affidavits and the submissions. The sole issue for determination is whether the injunctions sought should issue.
16. The principles applicable while considering an application for an interlocutory injunction are old hat. The applicants must establish a prima facie case with a probability of success. Even if they succeed on that first limb, an injunction will not issue if damages can be an adequate compensation. Finally, if the court is in doubt as to whether damages will be an adequate compensation then the court will determine the matter on a balance of convenience. All these conditions and stages are to be applied as separate, distinct, and logical hurdles which the applicant is expected to surmount sequentially. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. See Giella –vs- Cassman Brown & Co Ltd [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.
17. There is no dispute that a certificate of confirmation of grant in respect of the deceased’s estate was issued in Nyamira CM Succession Cause No. 7 of 2019. I have perused a copy of the said certificate of confirmation of grant which is dated 9th November 2022, and I note that it distributed the suit property as stated by the Plaintiffs at prayer 3 of the Notice of Motion. Whether the distribution should remain as stated in the said certificate of confirmation of grant is a matter that does not fall within the jurisdiction of this Court.
18. In view of the foregoing, I am persuaded that the Plaintiffs have established a prima facie case as regards prayer 3 of the Notice of Motion. Considering that the dispute is over family land, I do not think that damages can be an adequate compensation to the Plaintiffs. The Plaintiffs have made a case for a temporary restraining injunction.
19. Pursuant to prayer 4 of the Notice of Motion, the Plaintiffs seek an order which is a replica of prayer 1 of the Plaint. If I were to grant the order, I would have effectively determined the entire suit at this interlocutory stage. The same goes for prayer 5 of the Notice of Motion. I am not persuaded to grant those prayers.
20. In the result, I make the following orders:
a) A temporary injunction is hereby granted restraining the Defendants whether by themselves, their agents, servants or anybody acting under their instructions from chasing the Plaintiffs away from parcel number Manga Settlement Scheme 207, demolishing the Plaintiffs’ houses on the said land, cutting down the Plaintiffs’ crops and trees, or in any way acting in disturbance of the Plaintiffs’ peace on their share of the said land as ordered in certificate of confirmation of grant dated 9th November 2022 issued in Nyamira CM Succession Cause No. 7 of 2019, pending the hearing and determination of this suit.
b) In line with Order 40 rule 6 of the Civil Procedure Rules, the injunction shall, unless extended by the Court, remain in force for a period of only twelve months from the date of this ruling. Consequently, parties are reminded to expeditiously prosecute the suit.
c) Costs shall abide the outcome of the suit.
Dated, signed, and delivered at Nyamira, this 25th day of February 2026.
Delivered in the presence of:
Mr Nyangau holding brief for Mr Maranga for the Plaintiffs
The First Defendant present
The Second Defendant present
No appearance by the Third Defendant
Court Assistant: B Kerubo