Makara & 3 others v Muchumersun (Civil Appeal (Application) E242 of 2022) [2025] KECA 2193 (KLR) (28 November 2025) (Ruling)
Neutral citation:
[2025] KECA 2193 (KLR)
Republic of Kenya
Civil Appeal (Application) E242 of 2022
HA Omondi, LK Kimaru & JM Ngugi, JJA
November 28, 2025
Between
Daniel Sereria Makara
1st Applicant
Jacob Gesame Marwa
2nd Applicant
Musa Marwa
3rd Applicant
Rioba Marwa
4th Applicant
and
Samwel Nyabichere Muchumersun
Respondent
(Being an application for injunction against the judgment of the Environment and Land Court at Migori (Ongondo, J.) dated 28th July, 2020 in ELC Case No. 6 of 2019
Environment & Land Case 6 of 2019
)
Ruling
1.By a notice of motion dated 24th May 2024, brought under sections 1(A & B), 3, 3A, 18 & 63(E) of the Civil Procedure Act, Cap 21 Laws of Kenya, Order 40 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules 2010, Article 159 of the Constitution of Kenya 2010 and all other enabling provisions of the law, the applicants seek orders for grant of an interim order of temporary injunction restraining the respondent and/or agents, and/or servants and/or employees 'and/or any person acting on instructions of the respondent from cultivating, fencing, building structures and/or committing waste and/or alienating and/or in any way dealing with the suit land Parcel Number; Bukira/Bwisaboka/852 pending hearing and determination of the Kisumu Civil Appeal No. E0242 of 2022; and that costs be provided for. The application is supported by the affidavit of even date, sworn by Daniel Siseria Makara, the 1st applicant herein.
2.The circumstances leading to this application begun in October 2024, when the applicants instituted Civil Appeal No. E242 of 2022, whereas the respondent filed Civil Appeal No. E182 of 2022 both touching on Land Parcel No. Bukira/Bwisaboka/852 [suit land], which appeals are pending hearing and determination.
3.However, according to the applicant, the respondent has started interfering with the disputed parcel of land by constructing permanent structures before the two appeals are heard and determined; that the construction of the house will cause animosity and change in soil texture; and unless the orders sought are granted, the applicants will suffer irreparable loss and damage and that the respondent’s actions are likely to cause a change of the texture of the soil which is calculated to defeat the cause of justice.
4.The application is opposed through the respondent’s replying affidavit dated 4th July, 2024, which challenges the propriety of the application arguing that the applicants have withheld material facts. In this regard, the respondent points out that he filed a series of documents to prove that the 5 acres of the suit property belong to him and that he has been staying on the suit property since 1975. It is his contention that it was as a result of being able to demonstrate and justify his claim to the land, that the court declared his ownership.
5.According to the respondent, the injunction sought by the Applicants will amount to an eviction since he will no longer be able to use the land, which he owns and has occupied since 1975. He deposes that in 1975 and 1977, he purchased 5 acres of land from parcel L.R Bukira/Bwisaboka/136 (the original title) from one Marwa Seria alias Makara Sereria (deceased), who was the appellant’s father. The land was later subdivided, resulting in land parcel number L.R. Bukira/Bwisaboka/852 (the suit property).
6.The respondent maintains that purchase of the suit land was legally approved by the Land Control Board, which issued consent authorizing the sale. He acquired the suit land in 1975, and has since lived on and developed it extensively by constructing permanent houses, planting trees, and cultivating crops; that after Marwa Seria (aka Makara Sereria) failed to transfer the suit property, the respondent filed Kisii Civil Suit No. 3 of 1994 to compel the transfer, but the case lagged upon the death of Marwa Seria. In 2019, upon learning that the applicants had obtained letters of administration over the estate, he instituted Migori ELC Case No. 6 of 2019, claiming ownership of five acres by adverse possession. The Environment and Land Court ruled in his favor on 28th July 2020, giving rise to the present appeal.
7.The respondent explains that during the execution process, it was discovered that the decree erroneously referred to the original parcel of land known as L.R. Bukira/Bwisaboka/136 instead of the correct subdivided parcel, L.R. Bukira/Bwisaboka/852. Consequently, Kisumu Civil Appeal No. E182 of 2022 was instituted for the purpose of rectifying this clerical error to facilitate the proper execution of the decree.
8.It is the respondent’s contention that it would be unjust and impractical to issue orders restraining construction on the suit property as the original semi-permanent house erected in 1975 had become dilapidated and structurally unsafe, necessitating its demolition and replacement with a permanent structure to ensure the safety of his family; that the new house was completed in May 2024 and is presently occupied by his family members, and that, therefore, any order seeking to stop construction would serve no practical purpose, as the building works have been fully completed and no further construction or alteration of the land is being undertaken.
9.The respondent asserts that the applicants failed to disclose that there is an existing order of the trial court, issued on 30th June 2022, restraining them from interfering with his quiet possession of the suit property, which remains in force, hence granting the present application would create conflicting orders and amount to his eviction from land he has occupied for over 50 years.
10.In support of their prayer, the applicants rely on the decision in Nakuru ELC Case No. 61 of 2021 Ezron Kamau Gichuru vs Kianjoya Enterprise Ltd and Another [2022] eKLR, to argue that unless the orders sought are granted, they stand to suffer irreparable loss and damage as the suit land is likely to be alienated rendering the appeal nugatory.
11.In reply, the respondent contends that the instant application does not meet the threshold for granting the orders sought as it does not meet the threshold under Rule 5(2)(b) of the Court’s Rules. It is submitted that the respondent lawfully purchased 5 acres of the suit property in 1975, as evidenced by sale agreements annexed to his affidavit, and has been in uninterrupted possession since then. The trial court, after considering the evidence, declared him the rightful owner and issued subsisting status quo orders restraining the appellants from interfering with his possession.
12.Regarding the nugatory aspect, the respondent contends that denying the orders sought will not render the appeal nugatory, as the disputed construction was carried out within his property, where he has lawfully resided for over 50 years; that the completed building merely replaced an unsafe, dilapidated structure, and granting the orders would effectively amount to eviction without serving any practical purpose. It is further submitted that there is a subsisting conservatory order issued on 30th June 2022, maintaining the status quo, and issuing fresh orders would create conflicting judicial directions. Reliance is laid on the case of Jay Super Power Cash and Carry Ltd v Nairobi City Council & 20 Others (CA No. 111 of 2002), where it was held that a trespasser must vacate pending the determination of the dispute.
13.The respondent argues that granting this application would encourage trespassers to infringe on his ownership rights. Therefore, it is in the interest of justice and fairness to dismiss the application with costs.
14.Having considered the application, the affidavits in support and opposition thereto, as well as the submissions and authorities, it is clear that the applicants seek the exercise of the Court’s discretion under rule 5(2)(b) of this Court’s Rules.
15.What the applicant needs to demonstrate to obtain the orders sought is the fulfillment of two requirements first, that the appeal is arguable, and second, that it is likely to be rendered nugatory if the application is denied and the appeal later succeeds. What is arguable was explained in the case of Somak Travels Ltd vs. Gladys Aganyo [2016] eKLR, this Court held:
16.Regarding the first condition, this Court in Stanley Kang’ethe vs. Tony Keter & 5 Others [2013] eKLR emphasized that it is sufficient if a single bona fide arguable ground of appeal is raised. Further, an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. See Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Ltd. & 2 Others, Civil Application No. 124 of 2008.
17.In the instant application, the applicants have not given any indication of the nature of their intended appeal whether by way of a draft memorandum of appeal or otherwise. The applicants have simply stated, without more, that the respondent’s actions are likely to cause animosity between the parties, cause a change of texture of the property and that they will suffer loss and damage. In the case of Priscilla Wambui Mathenge vs. Mary Wairimu Mathenge & Another [2020] eKLR this Court held that:
18.Having carefully considered the rival submissions of the parties, we are unable to make a finding that the appeal is arguable because the applicants have not demonstrated to the Court what issues they are pursuing on appeal; and their arguability. While our jurisprudence requires the showing of even a single arguable issue, none has been demonstrated in the present case.
19.Turning on the nugatory aspect, the applicants submitted that unless the orders sought are granted, they will suffer irreparable loss and damage as the suit land is likely to be alienated, the texture is likely to change and a likelihood of animosity between the two families.
20.On his part, the respondent contended that he is the lawful proprietor of the suit land having purchased it from the applicant's father and has been in occupation for over 50 years. Further, in the impugned judgment, the learned judge found in favour of the respondent and lastly, the construction of the permanent house which the applicants want to stop, is already complete and the respondent has already moved in.
21.In the present application, it is not denied that the respondent is in occupation of the suit property. Whether or not it is entitled to be in possession is a matter that will be determined in the appeal. In Reliance Bank Limited vs. Norlake Investment Limited [2002] I EA 227, it was held that the factors which render an appeal nugatory should be considered within the circumstances of each case. In considering these circumstances, the Court should consider the competing claims of the parties, and in order to do justice, weigh the hardship that would result to the parties.
22.In the instant application, it is common ground that there is no immediate or imminent danger of the eviction of the applicants or the suit land being put beyond their reach by being sold to third parties. The applicants have also not demonstrated that it will be nearly impossible for them to be compensated in damages should the intended appeal be successful. In Mukuma vs. Abuoga [1988] KLR 645 this Court held, inter alia:
23.From the facts and circumstances of the application before this Court, the applicants have not satisfied either of the two limbs prescribed under rule 5(2)(b) of the Court of Appeal Rules, nor have they complied with the established jurisprudence governing the assessment of the twin principles, as summarized by this Court in Stanley Kangethe Kinyanjui (supra).
24.The upshot is that the application lacks merit and is dismissed with costs to the respondent.
DATED AND DELIVERED AT KISUMU THIS 28TH DAY OF NOVEMBER, 2025.H. A. OMONDI......................................JUDGE OF APPEALL. KIMARU.......................................JUDGE OF APPEALJOEL NGUGI.......................................JUDGE OF APPEALI certify that this is a true copy of the originalSigned DEPUTY REGISTRAR