Pamela Awino Okumu v Joseph Owino Oriwo (Suing as the Administrator of the Estate of Ager Oriwo - Deceased)

2. The genesis of this dispute spans more than two and a half decades: a) The 1999 Transactions: On or about January 20, 1999, the Applicant’s late husband entered into an agreement to purchase a portion of land measuring approximately 0.5 hectares from the Defendant, Joseph Owino Oriwo, following assurances from the local administration. A second 0.5-hectare transaction was subsequently initiated, but the Respondent failed to execute the second agreement, claiming the property belonged to his late father (Ager Oriwo Deceased) and offering a refund within three months. b) Entry and Continuous Possession: When the refund was not forthcoming by April 1999, the Applicant and her husband took possession against the wishes of the Respondent. They established a permanent home, planted trees, and cultivated the land openly, continuously, and uninterruptedly for over 26 years. c) The Succession Proceedings: Unbeknownst to the Applicant, the Respondent filed Homa Bay Chief Magistrate's Court (CMC) Succession Cause No. 233 of 2017 over the estate of the late Ager Oriwo, and the grant was confirmed on November 19, 2020. d) The Catalyst for Litigation: The Respondent later returned to the succession court seeking rectification/revocation of the grant. During proceedings before Hon. Ben Mararo (SPM) on June 25, 2026, directions were issued for a joint survey, coming up for mention on July 9, 2026. Fearing imminent partitioning and dispossession, the Applicant filed the instant ELC suit on July 5, 2026. 3. Summary of the Application and Reply a) The Applicant's Case: The Applicant seeks a stay of the succession proceedings before the lower court, an interim injunction restraining the Respondent from interfering with her 1.0-hectare portion, and an order compelling the Land Registrar to enter a restriction on GEM/KAJULU/356. She contends that her entry was without the consent of the true proprietor, 2|Page HOMA BAY ELC CIVIL NO. 49 OF 2026 – RULING

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rendering her possession adverse and ripe for prescription under the Limitation of Actions Act. b) The Respondent's Reply: The Respondent (acting in person and as the administrator of the estate of Ager Oriwo) fiercely opposes the application through a Replying Affidavit and written submissions. He argues that this Court lacks jurisdiction to stay or interfere with active probate proceedings properly before a specialized court, that the Applicant's occupation was entirely permissive (making her a licensee), that the 1999 sale agreement is void under Section 6 of the Land Control Act for lack of Board consent, and that the application is an abuse of court process intended to frustrate lawful survey directions. 4. Submissions and Comparative Jurisprudence a) Submissions: The Applicant relied on authorities such as Mbugua v Mungau & 3 others [2025] KEELC 1163 and Giella v Cassman Brown [1973] EA, while the Respondent cited Owiri v Kithiki & another [2026] KEHC 8778 and Isaac Kinyua & 3 others v Hellen Kaigongi [2018] KEELC 2604. b) Comparative Jurisprudence: i. Nigeria in Owoade versus Oshoboja (1988) 2 NWLR (Pt.77) 391: The case revolved around the issue of adverse possession and property rights. Owoade claimed ownership of a piece of land, arguing that he had acquired it through adverse possession. Oshoboja, the defendant, disputed this claim and provided title documents to assert his legal ownership of the property. The court examined whether Owoade had fulfilled the legal requirements for adverse possession, which include demonstrating uninterrupted, open, and exclusive possession of the property for a statutory period, typically twelve years under Nigerian law. The court found that Owoade had not provided sufficient evidence of continuous 3|Page HOMA BAY ELC CIVIL NO. 49 OF 2026 – RULING

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and exclusive possession of the land for the required duration. As a result, the court ruled in favor of Oshoboja, validating his ownership based on the presented title documents. Nigerian jurisprudence recognizes that incomplete purchase agreements can morph into adverse possession if the vendor sleeps on their rights, though equity does not assist a claimant whose possession is entirely tied to a consensual family estate settlement. ii. Uganda (Administrator General v. Nalumansi): The Ugandan courts affirm that probate courts have exclusive jurisdiction over estate distribution, and separate land courts should not issue blanket stays paralyzing lawful administration tasks unless fraud or lack of jurisdiction is shown. 5. Framing of Issues a) Whether this Court has the legal competence and jurisdictional mandate to issue orders staying active proceedings in Homa Bay CMC Succession Cause No. 233 of 2017. Detailed Juridical Analysis on Jurisdiction, Stays, and Injunctions i. In synthesizing the rival arguments concerning the prayer to stay Homa Bay Chief Magistrate's Court (CMC) Succession Cause No. 233 of 2017, this Court finds it imperative to elaborate extensively on the intersection between land jurisprudence, probate administration, and equitable injunctive relief. ii. The Statutory Boundaries of Probate vs. Land Claims: The Environment and Land Court (ELC) is explicitly empowered by Section 13 of the Environment and Land Court Act, read together with Article 162(2)(b) of the Constitution, to entertain disputes relating to title, use, occupation, and adverse possession under Section 38 of the Limitation of Actions Act. Conversely, a probate court's mandate under the Law of Succession Act is strictly limited to the identification of assets, administration of estates, 4|Page HOMA BAY ELC CIVIL NO. 49 OF 2026 – RULING

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confirmation of grants, and distribution to rightful beneficiaries. A probate court cannot conclusively hear and determine a claim of adverse possession brought by a stranger or third party claiming against the estate. iii. The Incompetence of Issuing Inter-Court Stays Without Supervisory Mandate: The Applicant sought to halt the lower court succession proceedings. However, the ELC is a specialized court of coordinate status with the High Court. It does not possess supervisory, judicial review, or appellate jurisdiction over a Magistrates' Court exercising probate jurisdiction. An order staying proceedings in an independent, parallel cause must be rooted in clear statutory authority or demonstrable abuse of process where the parallel forum lacks core subject-matter competence. Here, the probate court is acting entirely within its powers to administer the estate of the late Ager Oriwo. Halting its operations entirely would create an administrative vacuum. iv. Harmonization over Annihilation: Rather than deploying a blunt instrument like a stay of proceedings—which would disrupt the legitimate administrative duties of the probate court, including the mapping and identification of estate properties pursuant to directions given on June 25, 2026—this Court has opted for a calibrated, harmonious remedy. By declining the stay of the succession cause while simultaneously issuing an interlocutory injunction and a land registry restriction over parcel GEM/KAJULU/356, this Court ensures that the probate court can proceed with its administrative accounting and surveys without permitting any consequential distribution or transfer to legally extinguish or prejudice the Applicant's 26-year possessory footprint. This approach respects the jurisdictional limits of both forums, giving full effect to the overriding objectives of civil justice under Sections 1A and 1B of the Civil Procedure 5|Page HOMA BAY ELC CIVIL NO. 49 OF 2026 – RULING

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Act. b) Whether the Applicant has satisfied the thresholds for an interlocutory injunction and a land registry restriction on land parcel GEM/KAJULU/356. i. The Equitable Scope of Interlocutory Injunctions and Preservation of the Status Quo: In evaluating the prayer for an interlocutory injunction, this Court takes cognizance of the unique character of adverse possession claims. Unlike standard commercial disputes where losses are purely pecuniary and easily remedied by damages, a claim anchored on Section 38 of the Limitation of Actions Act (Cap 22) deals with hearths, homes, and a multi-decadal physical footprint. ii. Preservation of the Res: The primary objective of an interlocutory injunction in possessory litigation is the preservation of the res—the physical subject matter of the dispute—lest the substratum of the suit be destroyed before the merits are adjudicated. If the Respondent were permitted to alienate, partition, or transfer land parcel GEM/KAJULU/356 during the pendency of the suit, the Applicant's 26-year occupation would face immediate truncation, rendering any ultimate decree under Section 38 an empty victory. iii. The Doctrine of Clean Hands and Balance of Hardship: While the Respondent raises legitimate questions regarding the lack of Land Control Board consent for the 1999 transaction, equity looks beyond the initial contractual flaw when a party sits on their proprietary rights for over two decades while another openly builds, cultivates, and establishes a permanent domicile. The hardship of displacement heavily outweighs any administrative inconvenience faced by the Respondent in waiting for the 6|Page HOMA BAY ELC CIVIL NO. 49 OF 2026 – RULING

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substantive determination of the Originating Summons. c. Whether the Applicant's occupation is adverse or permissive. i) Comparative Jurisprudential Alignment: This approach resonates with broader regional jurisprudence. For instance, in Zambian and Malawian land tenure litigation, courts have consistently held that where long-term customary or permissive occupation evolves into an open assertion of adverse proprietary right, summary self-help or parallel administrative eviction must be restrained by equity until the prescription period and factual matrix are exhaustively tested in a court of competent jurisdiction. 6. DISPOSITION AND FINAL ORDERS i) Upon carefully evaluating the pleadings, annexures, statutory provisions, and competing submissions by both parties: ii) On the Prayer for Stay of Succession Proceedings: This Court affirms the position that the Environment and Land Court operates within a distinct, specialized constitutional and statutory mandate under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act. While this Court holds exclusive jurisdiction to determine ownership, title, and adverse possession claims under Section 38 of the Limitation of Actions Act, it possesses no supervisory or appellate jurisdiction to indefinitely halt or stay active distribution and rectification proceedings lawfully pending before a probate court (Homa Bay CMC Succession Cause No. 233 of 2017). The prayer seeking to stay the lower court succession proceedings is hereby dismissed. iii) On the Prayer for Injunction and Land Registry Restriction: The Applicant has demonstrated unrefuted physical presence, home establishment, and cultivation spanning over two decades (since 1999). To prevent the main suit from being rendered nugatory through hurried subdivisions or alienations, it is imperative to maintain the status quo regarding the physical integrity of 7|Page HOMA BAY ELC CIVIL NO. 49 OF 2026 – RULING

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the disputed portion. 7. IT IS HEREBY ORDERED THAT: a. The prayer for an order staying proceedings in Homa Bay CMC Succession Cause No. 233 of 2017 is dismissed. b. Pending the hearing and final determination of the main Originating Summons, an interlocutory injunction is hereby issued restraining the Respondent, his agents, or personal representatives from evicting, demolishing, or interfering with the Applicant's peaceful occupation and use of the specific portion currently occupied (approximately 1.0 hectare) on land parcel GEM/KAJULU/356, expressly conditioned upon the main suit being heard and finalized within one hundred and eighty (180) days from the date hereof. c. The Land Registrar, Homa Bay County, is hereby ordered to enter a restriction on the register of land parcel GEM/KAJULU/356 to prevent any transfer, sub-division, or dealing that would extinguish or prejudice the Applicant's possessory footprint, subject to the same 180-day limitation. d. Both parties are hereby directed to comply with pre-trial procedures by filing and exchanging their respective trial bundles, witness statements, and list of documents within fourteen (14) days from the date hereof. e. The matter shall come up for mention on October 28, 2026, for compliance verification, confirmation of filing, and fixing a hearing date for the main Originating Summons. f. Costs of this application shall be in the cause. g. Liberty to apply is granted to either party should circumstance 8|Page HOMA BAY ELC CIVIL NO. 49 OF 2026 – RULING

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warrant expedited administrative intervention, trial acceleration, or variation upon expiry of the 180-day timeline. h. Mention on 28th October 2026 for compliance DATED, DELIVERED VIRTUALLY, and SIGNED at HOMA BAY this 7th day of October, 2026. JUSTICE J.W WANYONYI -JUDGE ENVIRONMENT AND LAND COURT In the Presence of; 1.Obwanda for the Respondent 2.Adoyo for the Applicant 3.Court Assistant - Ms. Awino 9|Page HOMA BAY ELC CIVIL NO. 49 OF 2026 – RULING

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