Ann Kagwiria Muthuiru (Suing as the Legal Representative of the estate of M'Muthuiru Kajogi Joana alias Muthuiru Kainyoi Deceased) v Robert Kirimi Chokera & Another

termed the defendants’ actions as trespass unlawful occupation of the suit land. she prayed for a declaration onto and Among other reliefs, that the defendants are wrongfully in occupation of the suit land and are trespassers. 2. Together with the plaint, the plaintiff brought a notice of motion dated 15/1/2026 seeking the following verbatim reliefs: 1. Spent 2. That upon hearing of this application ex-parte, this Honourable court be please to grant a temporary injunction respondents whether by restraining the themselves, their agents and/or servants from trespassing on, wasting, constructing on, alienating or otherwise interfering or dealing property being East/Kiguchwa/761 with the deceased Title Number Tigania pending the hearing and determination of this application. 3. That upon hearing of this application ex-parte this Honourable Court be pleased to issue an order to the OCS/DCIO Tigania Police Station to ensure compliance and ensure peace prevails. 4. That upon hearing of this application interparties, this Honourable Court be pleased to issue a permanent order to the respondents restraining whether by themselves, their agents and/or servants from trespassing on, wasting, constructing ELC CASE NO E001 OF 2026 - RULING on, alienating or otherwise 2

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interfering or dealing property being with Title the deceased Number Tigania East/Kiguchwa/761. 5. That this honourable court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case. 3. The above application is the subject of this ruling. The application was premised on the grounds outlined in the motion and in the applicant’s two affidavits date4d 15/1/2026 and 19/3/2026. It was canvassed through written submissions dated 23/4/2026, filed by M/s Njeru James & Co Advocates. 4. The case of the applicant is that she is the personal representative of the late M’Muthuiru Kajogi Joana alias Muthuiru Kainyoi [the deceased] who owned the suit land]. In November 2025, the defendants invaded the suit land, damaged the gate; subdivided the suit land between themselves; and erected fences. She contends that the defendants have ignored all her protestations and have been threatening her. She adds that her complaints to the Local Chief and to the Local Mikinduri Police Stations have not been fruitful because the defendants have ignored summonses. She urges the court to grant her the permanent injunction sought in the interlocutory application. 5. The 2nd defendant [David Kaume Mwara] filed a replying affidavit dated 25/2/2026 in which he denied trespassing onto parcel number 761 or interfering with the said land. he deposed that he was in occupation of parcel 8293 which he ELC CASE NO E001 OF 2026 - RULING 3

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purchase from the plaintiff’s elder brother, Limiri Joshua Muthuiru and took possession on 18/8/2025. 6. The plaintiff filed a supplementary affidavit sworn by Limiri Joshua Muthuiru in which he deposed that the 1st defendant had intentionally overstepped the unconfirmed boundaries of parcel number 8293 and had trespassed upon and occupied parcel number 761. He faulted the 1st defendant for using the sale agreement as a smoke siren to grab parcel number 761. He deposed that the sale agreement relating to parcel number 8293 was subject to ground confirmation by “the Land Registry”. 7. In a rejoinder to the 1st defendant’s replying affidavit, Limiri Joshua Muthuiru stated that the 2nd defendant had intentionally overstepped the unconfirmed boundaries of parcel number 8293 and had trespassed on parcel number. He faulted the 2nd respondent for disregarding an existing court injunction register in the relevant land register. He further faulted the 2nd respondent for initiating an illegal reparcelling process without the consent of the registered owners of the parcels. 8. The court has considered the application; the responses to the application; and the parties respective submissions. Prayers 1, 2 and 3 of the notice of motion dated 15/1/2026 are spent at this point. What remains for consideration are prayers 4 and 5. The two issues that fall for determination in the application as this stage are: (i) Whether the relief of a permanent injunctive order is available in this suit at this stage; and (ii) Whether the application under consideration ELC CASE NO E001 OF 2026 - RULING 4

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meets the criteria upon which a trial court exercises jurisdiction to grant a permanent injunction. 9. A permanent (or a perpetual) injunction is issued by the court after hearing the merits of the case. It is normally issued in the final judgment or at the stage of final disposal of a case. It forever restrains the defendant. On the other hand, a temporary or an interlocutory injunction is issued during the pendency of a suit and subsists up to the disposal of the suit or up to the time it is discharged. 10. Lastly, a permanent injunction is issued after the claimant has proved his case to the required standard of proof. It is never issued as an interlocutory relief or on the basis of a prima facie case. 11. At this point, this court is seized of an interlocutory application. The dispute in the suit has not been heard on its merits. Clearly, the invitation to the court to grant a permanent injunctive order at this stage is pre-mature. 12. Secondly, it does emerge from the evidence presented to the court at this stage that the dispute giving rise to this suit relates to the question of the precise boundaries of parcels number 761 and 8293. The plaintiff has expressly admitted through the two affidavits presented to the court that these are general boundaries that are yet to be determined in accordance with the provisions of the law. In the circumstances, the starting point would be for the plaintiff to apply to the Land Registrar to determine and fix the ELC CASE NO E001 OF 2026 - RULING 5

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boundaries within the framework of Sections 18 – 20 of the Land Registration Act. 13. In light of the foregoing, the court’s findings to the two identified issues are in the negative. Consequently, the application dated 15/1/2026 is rejected and dismissed on the above grounds. DATED, SIGNED AND DELIVERED AT MERU THIS 28TH DAY OF SEPTEMBER, 2026. B M EBOSO [MR] ELC JUDGE ELC CASE NO E001 OF 2026 - RULING 6

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