1. This Ruling is in respect of the Notice of Motion Application dated 28th October 2025. On 29th October 2025, when the matter was placed exparte before the court, the court certified it urgent and granted prayers 3 and 4 of the application which are now spent hence prayers 1, 2, 3 and 4 are now spent.
2. The court directed Oral submissions in respect of prayers 5 and 6 on 20th November 2025, and parties to file written submissions in respect of prayers 7 and 8 of the application.
3. By extending the interim orders on 21st of November 2025, prayer 3 and 4 of the application were essentially granted.
4. Hence, the ruling is in respect of prayers 7 and 8 of the application the court notes that prayer 5 and 6 of the application have the potential of disposing of the whole suit as they replicate prayer C of the main suit, and the court shall not delve into the said prayers at this interlocutory stage.
5. The application seeks in prayer 7 and 8 injunctive orders as follows; -
(i) That the Honourable court be pleased to issue a temporary injunction restraining the Defendants whether by themselves, their agents and/or servants whatsoever from encroaching onto, trespassing onto and/or otherwise interfering in any manner whatsoever with the Plaintiff’s peaceful entitlement, occupation, possession and use of all that parcel of land known as land reference number Narok/Transmara/Oloololo/1 pending the hearing and determination of the suit.
(ii) That the Honourable court be pleased to issue a temporary injunction restraining the Defendants whether by themselves, their agents, and/or servants whatsoever from proceeding with illegal construction on any part of or at all that parcel of land known as land reference number Narok/Transmara/Oloololo/1 pending the hearing and determination of the suit.
6. In support of the application were grounds interalia, that
(i) The Defendants have trespassed on the Plaintiff’s property and were ferrying and construction material, depositing the same on the parcel of land, interfering with the Plaintiff’s quiet and peaceful enjoyment of its land, the Plaintiff’s property borders the Maasai Mara Game Reserve in which the Plaintiff utilizes the property exclusively for Wildlife Conservation.
(ii) the Defendant intended to construct on the Plaintiff’s land, and the intended illegal construction was within 500 meters of the Plaintiff’s tenant’s tourist facility, and the construction was on an area reserved for bush dinner for the Plaintiff’s tenants and guests for the past twenty (20) years.
(iii) The Defendant actions are an affront to the Plaintiff’s proprietary rights as enshrined in the constitution, and the court ought not to allow the Defendant to retain the position.
7. A supporting affidavit deponed Mr. Kuya Kijabe a Director of the Plaintiff was filed in further support of the application in which he reiterated the grounds in support of the application in his depositions and annexed the following
(a) A copy of the title, a letter dated 27th October 2025, and photographs of the construction.
8. A Replying affidavit was filed by Mr. Daniel Tulito Ole Sururu the 1st Defendant/Respondent who deponed, the same with authority of the 1st Defendant/Respondent and deponed interalia; -
(i) The application was devoid of merit whatsoever, and that Narok/Transmara/Oloololo/1 was part of community land/Trust, lived off and created from Maasai Mara Game Reserve vide gazette Notice No. 145of 9th January, 1984 hence is a public utility reserved for use of community to access salt lake/mara river, and the Applicant had the public land designated as parcel number Narok/Transmara/Oloololo/1 measuring 954.90 Ha (approximately 2359.6 Acres).
(ii) That they have been multiple cases involving the parcel hence he has not had quiet possession thereof.
(iii) That the Respondents are residents of parcels created from Transmara/Oloirien/37 which shared common boundary with Oloololo Trust Land, the Respondents were allocated Transmara/Oloirien/90 and Transmara/Oloirien/72, which they have subdivided into Transmara/Oloiren/972 – 1973 from Transmara/Oloirien/90 and Transmara/Oloirien/1516-1517 and 1518 from Transmara/Oloirien/72.
(iv) That the dispute is not a trespass dispute but a scheme between the Plaintiff and Land Registrar and Surveyor Kilgoris to extend their claim into other parcels including the Respondents parcel.
(v) That the construction of Transmara/Oloirien/1518 and the photographs were taken from the Defendants parcel, thus there is no trespass on the Plaintiff’s parcel.
(vi) That the boundaries of Transmara/Oloololo/1 ought to be determined by the office of the Chief Land Registrar Director of Survey and Director Land Adjudication and Settlement.
(vii) That the suit is bad in law as it contravenes the mandatory provision of Section 18(2) of the Land Registration Act.
9. In support of the above deposition the Respondent annex copy of Gazette Notice of 20/1/1984 letter dated 9th of April 1975, Map of Ilkarekeshe Group Trust letter dated 11/11/2011, NLC determination on historic injustice, Hansard print out of parliamentary debates for 6/10/1993, copies of mutations and titles for Transmara/Oloirien/1518, copy of green cards.
10. The Applicant equally filed a further affidavit in response to the supporting affidavit in which he deponed that the issue of ownership of Transmara/Oloololo/1 had been subject litigation in which the litigation was resolved in favour of the Plaintiff save for a pending Appeal before the Court of Appeal, and that the Defendant herein is reopening the said litigations.
11. The previous judgments in respect of the previous suit to wit Nakuru High Court Civil suit No. 3457 of 1995, Nairobi HCCC No. 4090/1994, Nairobi Court of Appeal Civil Application No. NAI 258/2007 (UR 158/2002), Narok ELC Constitutional Petition No. 5 of 2019, Nairobi Court of Appeal Civil Application No. 129 of 2019 (UR 92/19) Kilgoris ELC Case NO. 15 of 2021 (Formerly Nairobi ELC 395 of 2019) were annexed to the further affidavit.
12. The court heard oral arguments in respect of prayers 3 and 4 and by extending the interim orders, the said prayers were granted and the parties filed submissions in respect of prayers 7 and 8 of the application, in which the court has considered.
13. Arising from the application, the supporting affidavit thereof, Replying affidavit and further affidavit as well as the written submissions and the authorities cited by the Learned counsels for the parties and having considered the applicable law; the court frames the following as issues for determination
(i) Whether the suit is incompetent in view of Section 18(2) of the Land Registration Act?
(ii) Whether or not the application is merited?
(iii) What relief ought to issue.
(iv) Who bears the costs of this application.
Analysis and Determination
14. On issue number 1, the Respondents have raised a jurisdictional issue stating that the nature of the suit offends Section 18(2) of Land Registration Act.
The said Section
18(2) “The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined with this section…”
15. The essence of the Section is to outset the court’s jurisdiction in a boundary claim. Is the suit herein a boundary claim as indicated by the Respondents. To determine this the court shall look at the Plaintiff’s pleadings. Paragraph 67 and 8 of the Plaint, set out the Plaintiff’s grievance against the Defendant.
While prayer (d) seeks damages for trespass.
Paragraph 6 “On or about 24th October 2025, the Defendants whether by themselves or their agents/servants, without the consent/permission of the Plaintiff began encroaching on the Plaintiff’s property by ferrying construction material through the Plaintiff’s parcel of land and thereby disrupting the Plaintiff’s its tenant’s quiet and peaceful possession, occupation and enjoyment of the property.
Paragraph 7 – Additionally, in complete contravention of the Plaintiff’s proprietary rights, the Defendants have not only succeeded to deposit their construction material on a part of the property but they have also commenced excavation works thereby defacing the Plaintiff’s property.
8. Furthermore, the said illegal construction material on a part of the property but they have also excavation works thereby defacing the Plaintiff’s property.”
16. on prayers, prayer (d) states The Defendants be ordered to pay the Plaintiff’s damages for trespass.”
17. From the above, the Plaintiff’s suit is founded on trespass and encroachment of its suit property but the Defendants. It is not a suit for fixing and/or establishing of boundaries, and hence the suit is properly before court.
18. In answer to issue number 1, the court finds that it has jurisdiction to hear and determine the suit and answers issue number in the affirmative that there is a competent suit before court.
19. On issue number 2 on the merits of the application. The Application seeks temporary injunction pending hearing and determination of the suit.
20. The principles for grant of a temporary injunction were stated in the decision in Giella Vs. Cassman Brown; they are “Firstly, an Applicant must show a primafacie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer imperable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”
21. Has the Plaintiff established a primafacie case as defined in the Mrao Limited Vs. First American Bank Limited where a primafacie case was defined as “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 part so as to call for an explanation or rebuttal from the latter.”
22. The Plaintiff has exhibited a copy of title in respect of Transmara/Oloololo/1 in the supporting affidavit, the Plaintiff has exhibited photographs of construction, in the said suit property, he has also exhibited previous judgment of the court in relation to the ownership of Transmara/Oloololo/1, in the further affidavit. The Plaintiff has proven ownership of the suit property which ownership entitles him to quiet enjoyment and possession of the same.
23. In so far as the issues of ownership of Transmara/Oloololo/1 were litigated in previous suits and determination made in favour of the Plaintiff, the Respondents cannot re-open the same as they purport to in the Replying affidavit as the court cannot sit on Appeal.
24. On the decisions of courts of concurrent jurisdiction, and the court thus finds that the ownership of Transmara/Oloololo/1 had being proven by the Plaintiff and since there is a threat to the quiet enjoyment of the rights conferred on a registered owner, as the Plaintiff herein, the Plaintiff has therefore established a primafacie case with probability of success.
25. On principle 2, on irreparable injury, the Applicant has deponed that the construction is near its tenants, Kichwa Tembo ecolodge where the Tenants has its bush dinners, and if the construction is to be allowed there will be interference with the sensitive eco-system. The Defendants/Respondents have annexed photographs of completed houses that they depone to have erected on their parcels. These photographs defer from the photographs exhibited by the Plaintiff which show building poles and materials, indicating construction is ongoing as opposed to photographs by the Respondents that indicate completion of a project.
26. The court finds that as the trespass is alleged to have occurred on or about the 24th of October 2025 and the suit filed on 28th of October 2025, the photographs by the Defendants showing a completed project cannot represent to correct factual position, and since the construction will interfere with the ecosystem of the Mara Wildlife Conservation, as it is being constructed near an ecolodge, the Kichwa Tembo eco lodge, the court finds that the Plaintiff will suffer irreparable injury if the construction is to proceed.
27. On the balance of convenience, between the Applicant and Respondent the court finds that between an existing eco lodge and upcoming structures the balance of convenience tilts in favour of the Applicant, and the court finds that as the Application has met the threshold for a grant of a temporary injunction it is thus merited.
28. On what reliefs ought to issue the court having found that the application is merited, and issue the injunction in terms of prayers 7 and 8 of the application.
29. The court notes that the Respondent has filed copies of titles to subdivisions emanating from Transmara/Olorien/37, that the Respondents state is an adjacent property next to Transmara/Oloololo/1 belonging to the Applicants.
30. Since the properties are distinct and the Applicant states that there is encroachment by the Respondent which the Respondent denies, noting that the acreage and deed plan upon which Transmara/Oloololo/1 is located as well as the acreage of Transmara/Olorien/37 and its subdivisions, the courts request by the Respondent to establish the said boundaries; in this regard, the County Surveyor Narok as well as the County Land Registrar Narok shall delegated persons other that the Subcounty Land Registrar Kilgoris and Subcounty Surveyor Kilgoris to visit the site with police assistance and file a report on
(i) The boundaries of the two parcels as were originally allocated to the parties.
(ii) Encroachment of either parcels.
31. The said report to be filed within 90 days from today.
32. The costs of the exercise to be borne equally by the parties and shall be supervised by the Deputy Registrar of the Court with police assistance at a mutually convenient date to be agreed upon the by the parties.
33. Costs of the application shall be in the course.
34. Mention before Deputy Registrar to take a date for the site visit on 12th of March 2026.
-Dated at Kilgoris 2nd day of March, 2026
In the presence of
CA – Sylvia/Sandra/Clara
Mr.Kere for the Applicant
Ms. Opondo h/b for Mr. Otieno for the respondent
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