Sabari v Gichobi & another (Land Originating Summons E028 of 2025) [2026] KEELC 2963 (KLR)

4. The applicant contends that the respondents obtained a grant relating to the estate of the late Mwereria and subsequently got registered as proprietors of the land on 26/8/2025. Subsequent to that, accompanied by unknown persons claiming to be surveyors, the respondents descended on the applicant’s cofiee trees and felled them in an efiort to wrestle possession of the one acre from him. He states that unless restrained by a temporary injunction, the respondents have sworn to defeat his claim using illegal means. He adds that unless an inhibition order is issued, the respondents will alienate the suit land through subdivision and transfer. 5. The respondents opposed the application through a replying afidavit sworn on 4/2/2026 by Julius Nyerere Erastus and written submissions dated 18/3/2026, filed by M/s Wambugu & Muriuki LLP Advocates. Their case is that, contrary to the assertion by the applicant to the efiect that he entered the suit land as an adverse possessor, the true position is that the applicant entered the land pursuant to a sale agreement dated 30/7/2012 between himself and one Justus Kibaara Erastus. It was only upon confirmation of the grant on 11/6/2014 that the said Justus Kibaara Erastus became entitled to a share of the estate of the late Mwereria. They term as fake, the document which the applicant exhibited purporting to be a certificate of confirmation of grant issued on 16/11/2010. They assert that the genuine certificate of confirmation of grant was issued on 11/6/2014. They argue that possession founded on a sale agreement cannot constitute a prima facie case for the purpose of adverse possession nor justify an interlocutory injunctive relief. They urge the court to reject the application. 6. The court has considered the application, the response to the application and the parties’ respective submissions. An inhibition is, by and large, an interlocutory injunctive relief that bars registration of dealings in a land register pending the hearing and disposal of a suit. Consequently, the single issue that falls for determination in this ruling is whether the application dated 8/10/2025 meets the criteria for granting an ordinary interlocutory injunction by a trial court. 7. The relevant criteria on exercise of jurisdiction of a trial court to grant an ordinary interlocutory injunction was outlined by the Court of Appeal for East Africa in the case of Giella v Cassman Brown (1973) EA 358. First, the applicant is required to demonstrate a prima facie case with a probability of success. Second, the applicant is required to demonstrate that if the plea for an interlocutory injunction is declined, he will stand to sufier injury that may not be adequately indemnifiable through an award of damages. Thirdly, should the court have doubt on either or both of the above, the application is to be determined on the basis of the balance of convenience. 8. Over the years, our superior courts have developed a fourth principle to the efiect that, at the stage of disposing the plea for interlocutory injunction, the court should refrain from making conclusive or definitive pronouncements on the key issues in the dispute. The courts have emphasized that definitive and conclusive pronouncements/findings should be reserved for the final disposal of the dispute. 9. The Court of Appeal defined a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd & 2 others as follows: “ A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case 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.” 10. In the application under consideration, the possession of the one acre portion by the applicant has not been contested. The date of entry onto the suit land and occupation of the one acre portion has also not been contested. What has been contested is the applicant’s contention that he has been an adverse possessor. The respondents contend that the applicant’s possession of the suit land has been https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2963/eng@2026-05-14 2

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that of a purchaser. What emerges from the above interlocutory evidence is that the applicant has been in possession of the one acre portion of the suit land since 2012. This, in my view, is a manifestation of a probable right that deserves interlocutory protection. 11. On irreparable injury that may not be indemnifiable through an award of damages, the applicant has demonstrated that he has developed the one-acre portion by planting cofiee and tea bushes. He has demonstrated that the two crops are mature and face the danger of being cut/uprooted. He has also demonstrated that the one acre stands to be alienated through implementation of the succession order. In the circumstances, there is a proper basis for the interlocutory injunctive reliefs. 12. The balance of convenience, similarly, favours preservation of the suit land and maintenance of status quo in terms of the current registration status of the larger parcel and occupation/possession of the one acre portion by the applicant. 13. The result is that the court is satisfied that the application dated 8/10/2025 meets the criteria for granting an ordinary interlocutory injunctive relief. Consequently, the application dated 8/10/2025 succeeds in terms of prayers 2 and 3. The two orders are granted pending the hearing and determination of this suit. However, unless extended by the court, the said orders will lapse on expiry of 12 months from today. Costs of the application shall be in the cause. DATED, SIGNED AND DELIVERED AT MERU THIS 14TH DAY OF MAY, 2026 B M EBOSO [MR] ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2963/eng@2026-05-14 3

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