1. The Plaintiff moved the Court through Originating Summons (OS) dated 12th February 2025 seeking determination of whether the Defendants’ title to a 25 by 100 plot situate between North Mogirango Boisanga/5285 and North Mogirango Boisanga/895 had been extinguished through adverse possession and whether he (the Plaintiff) should be registered as proprietor of the said 25 by 100 plot.
2. The Plaintiff therefore prayed for judgment against the Defendants for the following orders:
A. THAT a declaration be and is hereby issued declaring that the title of ADISON MOCHAINA OBARE, JAMES OBARE NYAKERIGA, SIMON MES NYAKERIGA, BEN MESA NYAKERIGA and or their assigns and successors in title to the 25 by 100 plot situate between North Mogirango Boisanga/5285 and North Mogirango Boisanga/895 have been extinguished through adverse possession.
B. THAT the Plaintiff is entitled to be registered as the proprietor of the 25 by 100 plot situate between North Mogirango Boisanga/5285 and North Mogirango Boisanga/895 currently registered in the name of the Defendants herein pursuant to the provisions of section 38 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya on the ground that since the Plaintiff has been in possession, control and beneficial owner of the suit properties and has remained in open, peaceful and uninterrupted occupation thereof which is a period exceeding 12 years preceding the presentation of this Summons.
C. THAT an order do issue requiring the land registrar Nyamira County to register the suit property in the name of the Plaintiff as the proprietor of the 25 by 100 plot situate between North Mogirango Boisanga/5285 and North Mogirango Boisanga/895 in place of the Defendants herein and or their assigns and/or successors in title thereof.
D. THAT costs of this suit be borne by the Defendants.
3. Together with the OS, the Plaintiff filed Notice of Motion dated 12th February 2025, which is the subject of this ruling. The following orders are sought in the application:
1. [Spent]
2. [Spent]
3. THAT the Honourable Court be pleased to grant an order of injunction to restrain the Defendants/Respondents, their heirs, assigns, agents, and servants or any representative from disposing, selling, alienating, charging, leasing, letting or in any way dealing with the suit properties North Mogirango Boisanga/5285 and North Mogirango Boisanga/895 pending hearing and determination of this suit.
4. [Spent]
5. THAT the Honourable Court be pleased to grant an order of injunction to restrain the Defendants from evicting the Plaintiff/Applicant from the suit property or otherwise interfering with his occupation, developments and user of the 25 by 100 plot situate between North Mogirango Boisanga/5285 and North Mogirango Boisanga/895 pending the hearing and determination of this suit.
6. The OCS Nyamira North to supervise compliance of the orders of court.
7. THAT costs of this application be borne by the Respondent.
4. The application is based on the grounds listed on its face and is supported by an affidavit sworn by the Plaintiff. He deposed that the First and Third Defendants, respectively, were the registered proprietors of the parcels of land known as North Mogirango Boisanga/5285 and North Mogirango Boisanga/895, and that he had been in occupation and control of a 25 by 100 plot situated “in the midst of” North Mogirango Boisanga/5285 and North Mogirango Boisanga/895 since the year 1990 having been given the said plot by Josiah Kingoina Nyakeriga (deceased) who was his father.
5. The Plaintiff further deposed that the Second and Fourth Defendants are brothers to the Plaintiff’s late father and that where the suit properties are located was their ancestral land. That the Second and Fourth Defendants gave the deceased the 25 by 100 plot in late 1980s as an appreciation and that in turn, the deceased handed over the plot to him (Plaintiff) in 1990 in the presence of the Second and Fourth Defendants.
6. The Plaintiff also stated that he had been developing the plot since 1990 with two shops and rental units and that the Defendants had not interfered with his use and occupation. That on 20th June 2024, the First and Third Defendants blocked the entrance to the plot and demanded that he vacates while the First and Second Defendants sent their agents to the premises who ordered him to vacate within seven days and in default he would be evicted. The Plaintiff further deposed that he reported the matter to the area Chief who then referred the parties to the area Assistant County Commissioner.
7. The Defendants opposed the application through a replying affidavit sworn by the First Defendant. He deposed that the Plaintiff lacked locus standi in the matter and denied that the Plaintiff had been in occupation as alleged. He added that the fact that the Second and Fourth Defendants were brothers to the Plaintiff’s father did not give the Plaintiff a right to relocate from his father’s land to his father’s brothers’ land.
8. The First Defendant went on to depose that the Plaintiff moved from his father’s land at Kenyoro in the year 2023 and went to the suit properties whose location had grown into an urban area. That on arrival, the Plaintiff initially asked for space to store his container only to change later and start claiming adverse possession. He denied that the Plaintiff had developed the property as alleged and urged the Court to dismiss the application with costs.
9. Considering the relationship between the parties, I referred the matter to mediation. After several false starts, the mediation took place, but the parties failed to reach a settlement.
10. The application came up for hearing severally but did not proceed because no response and submissions had been filed. Ultimately, on 3rd February 2026, having considered the age of the application and the opportunities given to the parties, I gave the parties a final opportunity with an order that any submissions filed beyond the period given would stand struck out.
11. The Defendants filed submissions dated 4th February 2026. On the other hand, the Plaintiff did not file any submissions within the timelines that were given.
12. I have considered the application, the affidavits and the submissions filed by the Defendants. The only issue for determination is whether an interlocutory injunction should be granted.
13. The principles applicable while considering an application for an interlocutory injunction are that the applicant must establish a prima facie case with a probability of success. Even if he succeeds 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.
14. In Mrao Ltd v First American Bank of Kenya Ltd& 2 others [2003] eKLR, the Court of Appeal defined prima facie case to mean:
... 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… [it] is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.
15. In Nguruman Limited v Jan Bonde Nielsen & 2 Others (supra) the Court of Appeal adopted the definition in Mrao and added:
We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.
16. There is no dispute that the Plaintiff is in occupation of the disputed property. There is however a dispute on the nature of his possession and the circumstances in which he took occupation.
17. While the Plaintiff contends that he had been developing the plot since 1990, the Defendants maintain that he only entered therein in the year 2023. Whether the duration and nature of possession amount to adverse possession are matters which can only be resolved upon the hearing and determination of the suit.
18. Based on the material on record, I am persuaded that the Plaintiff has established a prima facie case with a probability of success. Considering that the dispute is over land, I am not persuaded that damages will be an adequate remedy. I will grant an injunction limited to the 25 by 100 portion. Further, the lifespan of the injunction will be limited, to facilitate an early hearing and determination of the suit.
19. In the result, I make the following orders:
a) An interlocutory injunction is hereby granted restraining the Defendants from evicting the Plaintiff from the 25 by 100 plot situate between North Mogirango Boisanga/5285 and North Mogirango Boisanga/895 or otherwise interfering with his occupation, development and use thereof 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 be in the cause.
Dated, signed, and delivered at Nyamira, this 25th day of February 2026.
Delivered in the presence of:
No appearance for the Plaintiff
Mr Onyancha holding brief for Mr Nyamwange for the Defendants
Court Assistant: B Kerubo