NNM v PMW & 2 others (Environment and Land Case E002 of 2024) [2026] KEELC 695 (KLR) (4 February 2026) (Ruling)

NNM v PMW & 2 others (Environment and Land Case E002 of 2024) [2026] KEELC 695 (KLR) (4 February 2026) (Ruling) Neutral citation: [2026] KEELC 695 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Case E002 of 2024 A Nyukuri, J February 4, 2026 Between NNM Plaintiff and PMW 1st Defendant HMA 2nd Defendant The County Land Registrar, Kakamega 3rd Defendant Ruling 1.Before court is an application dated 26th February 2024, filed by the 1st and 2nd defendants seeking the following orders;1.Spent2.Spent3.Pending the hearing and determination of this suit, this court do issue an order prohibiting the registration, change of registration in the ownership, leasing, allotment, occupation or any kind of right, title or interest by the plaintiff, her servants and or agents in all the pieces of land known as S/Kabras/Chemuche/xxxx, S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx, S/Kabras/Chemuche/xxxx, S/Kabras/Chemuche/xxxx, S/Kabras/Chemuche/xxxx, S/Kabras/Chemuche/xxxx, S/Kabras/Chemuche/xxxx, S/Kabras/Chemuche/xxxx, S/Kabras/Chemuche/xxxx, S/Kabras/Chemuche/xxxx, S/Kabras/Chemuche/xxxx, S/Kabras/Chemuche/xxxx, S/Kabras/Chemuchexxxx, and S/Kabras/Chemuche/xxxx, contrary to the plaintiff/applicant’s rights and interests with any land registry, Government department and all registering authorities until further orders of this court.4.The OCS Kabras be ordered to assist in the enforcement of the order restraining the plaintiff, her servants and or agents from remaining, entering, developing and or interfering with land parcel Nos. S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx,S/Kabras/Chemuche/xxxx, S/Kabras/Chemuchexxxx, and S/Kabras/Chemuche/xxxx.5.The costs of this application be awarded to the defendant/applicant. 2.The Application is supported by the grounds on its face as well as the supporting affidavit sworn by the applicant. The applicant’s case was that the 1st and 2nd defendants are husband and wife having solemnized their marriage on 4th August 2017 after having a customary marriage on 20th September 1990. That the 1st defendant was given parcel of land No. S/Kabras/Chemuche/xxx by his father as inheritance in 1972 and built a permanent house thereon. That the applicant married the 1st defendant in 1969 but that they got separated. 3.He maintained that to avoid turmoil in his home, the 1st defendant subdivided the suit property in four equal parcels of 1.1 hectares to be bequeathed to his family. That the plaintiff has her property but is eying the 2nd wife’s property when the 1st house was given three quarters of the land. That unless restrained, the plaintiff will deny the defendants peaceful possession of the suit property. 4.The application is opposed by the plaintiff in a replying affidavit dated 7th May 2024 and further affidavit dated 16th September 2024. She stated that the application contained falsehoods and failed to disclose a reasonable cause of action and ought to be dismissed. That she got married to the 1st defendant in 1969 and later solemnized her marriage on 14th April 1983 under the repealed African Christian Marriage and Divorce Act Cap 151 Laws of Kenya, which marriage still subsists. 5.She denied the 1st defendant’s allegations that they are separated and denied being violent. She further stated that the purported marriage between the 1st and 2nd defendants was done secretly without her knowledge and that the same is null and void for want of capacity on the part of the 1st defendant, in view of the fact that her marriage to the 1st defendant is still in existence. 6.She also averred that parcel No. S/Kabras/Chemuche/xxx was ancestral land and that the same was subdivided to create parcel Nos. xxxx, 1747, xxxx and xxxx. That since it was ancestral land formerly owned by the late LUKA WANGUSI, the 1st defendant holds it in trust for the entire family. She maintained that parcel No. xxxx does not exists as the same was subdivided into parcel Nos. xxxx to xxxx. That the 1st defendant has no locus standi to institute the instant application because he transferred to the 2nd defendant the disputed titles fraudulently and secretly without spousal consent. 7.Further that parcel Nos. xxxx, xxxx and xxxx are still in the 1st defendant’s names. That she was in actual occupation of the land in exclusion of the 2nd defendant who does not live thereon. That the prayers sought are permanent and not capable of being granted in the interim. That is only fair that status quo orders be granted. That orders sought are meant to defeat justice. That the 2nd defendant having failed to obtain interim orders herein filed Butali PM MCLE CASE NO E037 OF 2024 and a notice of motion dated 14th May 2024, where she failed to disclose the existence of this suit, hence this suit is sub judice. That the application does not meet the threshold for grant of injunction. She attached a marriage certificate and search certificates. 8.Parties filed submissions in support of their respective cases. On record are submissions filed by the plaintiff dated 16th September 2024 which the court has duly considered. Analysis and determination 9.The court has carefully considered the application and the response thereto as well as the submissions. The issue for determination is whether the applicant has met the threshold for grant of temporary injunction. 10.Principles governing grant of temporary injunction are well settled in the case of Giella Vs. Cassman Brown and Company Limited (1973) E.A. 358, as follows;a.The applicant must demonstrate a prima facie case with a probability of success;b.The applicant must show that they will suffer irreparable injury which cannot be compensated in damages if the injunction is denied;c.If the court is in doubt, it ought to decide the application on a balance of convenience. 11.The 2nd defendant herein is the registered proprietor of the suit properties, which before registration in her name was registered in the 1st defendant’s name. Therefore, the 1st defendant who does not deny transferring the same to the 2nd defendant, no longer has any proprietary interest therein capable of legal protection. The 2nd defendant’s registration of the suit properties is contested on grounds of illegality and fraud. Those are matters which will be interrogated at the trial. However, most importantly, the plaintiff alleged to be in occupation of the same, while the 1st and 2nd defendants have counterclaimed for peaceful possession of the same. 12.Therefore, granting orders of injunction sought to stop the plaintiff from continuing to occupy the suit property would amount to determining the suit herein substantively before hearing it on its merits and without allowing parties the opportunity to test evidence on cross examination. While this court is not a family court but has implored parties to resolve their dispute amicably, in vain, it is clear that the plaintiff’s occupation of the suit property has everything to do with the fact that she is the 1st defendant’s spouse. 13.Consequently, in the circumstances of this case, the orders that commend themselves in the circumstances of this case, which I hereby grant, are orders that the status quo obtaining in respect of the suit property shall be maintained by both parties so that none in occupation thereof is evicted; no further dealings on the title thereof shall be registered and no further development thereon shall be done, pending hearing and determination of this suit. 14.It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 4TH DAY OF FEBRUARY 2026****A. NYUKURI****JUDGE** In the presence of;Mr. Osango for the plaintiffMr. Simiyu for the 3rd defendantNo appearance for the 1st and 2nd defendantsCourt Assistant: Delphine