Introduction
1. This ruling is in respect to the notice of motion dated 13th January 2025 filed by the plaintiff seeking temporary injunction to restrain the defendant from evicting the applicant or interfering with her peaceful occupation of parcel No. Isukha/ Lubao/2926 property pending hearing and determination of this. Suit He further sought for a “prohibitory order” to be registered against the title of the suit property.
2. The applicant’s case is that together with her late husband and children, she has been living on two acres of the suit property exclusively and peacefully and without interruption since 1940. That she has extensively developed the suit property. That the respondent secretly undertook succession of the estate of the late Petro Kumbua Mchenjeni and sold the suit property to Humphrey Sechero Tieni & Catherine Shitawa Sumbi. That she was omitted from the list of beneficiaries of the suit property during succession proceedings, when she has extensively developed the suit property and that she stands to suffer financial prejudice. That she has acquired the suit property by adverse possession. She attached copies of confirmed grant and a ruling in Kakamega CMC Succession Cause No. 77 of 2020.
3. The application was opposed. The respondent filed replying affidavit dated 31st July 2025. He stated that the application contains falsehoods as the applicant has no registrable interest in the suit property as they had their own land being Isukha/Lubao/356. That the suit property was not registered in trust for the applicants. He denied selling the suit property to Humphrey and Catherine and stated that Athanas Lichoti and Joana Mmanyisi are the ones who sold the land to Humphrey and Catherine
Analysis and determination
4. The court has carefully considered the application, response thereto. The single issue that arise for determination is whether the applicant deserves orders of inhibition and temporary injunction pending hearing and determination of this suit.
5. The applicant sought for a prohibitory order to be registered against the suit title. An order that is ordinarily registered against title is referred to as an inhibition, which is an order prohibiting for the time being, the registration of dealings on a title and therefore, it is an order in the nature of an injunction.
6. Section 68 of the Land Registration Act provides for the power of the court to grant inhibition as follows;
“The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.”
7. The power of this court to grant injunction is provided for in Order 40 Rule 1 of the Civil Procedure Rules as follows;
“Cases in which temporary injunction may be granted [Order 40, rule 1]
Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”
8. Principles for grant of temporary injunction are well settled. The applicant must demonstrate prima facie case, irreparable loss and show that the balance of convenience tilts in favour of granting an injunction. (See Giella v Cassman Brown [1973] EA 358)
9. In the instant matter, the applicant argues that the action of the respondent in conducting secrete succession and excluding her from the beneficiaries list in respect of the suit property exposes her to immense financial prejudice. The applicant mentioned Humphrey Sechero Tieni and Catherine Shitawa Sumbi as the new registered owners of the suit property yet he has not sued them in this matter. Tenets of natural justice as stated in Article 50 of the Constitution of Kenya, require that no one should be condemned unheard, hence granting orders sought herein will have the effect of condemning the two persons unheard. Besides, Order 37 Rule 7 of the Civil Procedure Rules requires that an extract of title be annexed to the supporting affidavit supporting the Originating Summons seeking a claim of land based on adverse possession. The applicant herein did not attach the extract of title as expected. Besides, although she alleged to have annexed copies of official search to the affidavits supporting the instant application and Originating Summons, none was attached. In the absence of the current search and extract of the title, the court cannot ascertain the registered proprietor of the suit property. The court cannot injunct a registered owner who is not known to court. In addition, there was no prima facie evidence to support allegations of occupation of the suit property for over 12 years as alleged.
10. I therefore find and hold that the applicant has failed to demonstrate a prima facie case with any chances of success.
11. In the premises, I find and hold that the application dated 13th January 2025 lacks merit and the same is hereby dismissed with costs.
12. It is so ordered
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 27TH DAY OF NOVEMBER 2025
In the presence of;
No appearance for the plaintiff
No appearance for the defendants
Court Assistant: Delphine