1. For determination is the Plaintiff’s notice of motion application dated 20/3/2025 brought under sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Order 40 Rules 1, 3, 4, 10 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The orders sought are: -
1) Spent.
2) Spent.
3) That this honourable court be pleased to issue a temporary injunction against the defendants restraining the 1st Defendant by himself, his appointed attorney, agents from threatening, selling, transferring and/or in any other manner dealing with all that portion measuring 14.3 acres or thereabouts situated at Tezo or transferring by public auction or private treaty, disposing off or otherwise completing by conveyance, transfer of any sale concluded to the property Kilifi/Tezo Roka/186 pending hearing and determination of the suit.
4) That the costs of this application be provided for.
2. The application which is supported by an affidavit sworn by Alfred Kai Rijani, the first Plaintiff herein, is premised on the following grounds: -
a) that the Plaintiffs are the biological sons of the 2nd Defendant and are automatically the beneficiaries of the properties of the 2nd Defendant including Land Reference Number Kilifi/Tezo Rika/186;
b) That the Defendants have colluded and secretly transferred ownership of Land Reference Number Kilifi/Tezo Rika/186 to the 1st Defendant thereby threatening the further inheritance of the Plaintiffs and other siblings;
c) That the 1st Defendant is in the process of subdividing the suit land with a view to selling portions to unsuspecting purchasers who may lose their investments in the event the orders prayed herein are granted and confirmed;
d) That the Defendants stand to suffer no prejudice in the event the prayers sought herein are granted given the circumstances under which the property was sold and transferred;
e) That the suit and application herein is made in good faith and the earliest time possible when the anomaly was detected hence there is no delay;
f) That the Plaintiffs are now apprehensive that they will suffer irreparable loss if the prayers sought in this application are not granted;
g) That no prejudice will be suffered by the Defendants in any way if the application herein is allowed.
3. The application is opposed. The 1st Defendant filed a replying affidavit sworn on 27/3/2025 by Stephen Gachanja Gakobo, said to be the 1st Defendant’s director. He deposed that the 1st Defendant purchased the Land Reference Number Kilifi/Tezo Rika/186 (hereinafter also referred to as “the suit property”) from the 2nd Defendant as per the sale agreement dated 13/5/2021 and exhibited as SGG-2. He also exhibited a copy of the original title registered in the name of the 2nd Defendant (SGG-3), copies of search certificate (SGG-4) and spousal consent (SGG-5). The director stated that the sale was lawfully and procedurally done and that there is no law that requires the consent of children prior to transferring land. He added that the suit property no longer exists as it has long been sub-divided and new titles issued. The 1st Defendant urged the court to dismiss the application.
4. On 20/3/2025 when the matter came up for directions, the court directed parties to exchange skeleton submissions to be highlighted on 3/4/2025 when the application was scheduled to be heard inter partes orally. On the material date, the Plaintiffs were marked absent.
5. The guiding principles for the grant of orders of temporary injunction are well settled and are set out in the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that: -
“…in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establish his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.
These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”.
6. The Plaintiffs’ case is rather bizarre. They claim that the suit property was wrongfully sold by their father thus threatening their prospective inheritance. The central issue for determination is whether the Plaintiffs have established a prima facie case to warrant the intervention of the court at this stage.
7. A prima facie case was defined by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd (2003) eKLR as –
“... in civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”
8. Applying this test, the court must determine whether the Plaintiffs have demonstrated the existence of a legal right that is likely to have been infringed. The Plaintiffs’ claim is based on a future expectation, their inheritance. The proposed testator or donor is still alive and no right of the applicants to the property has crystallized. In the present case, there is also no evidence that the Plaintiffs held any proprietary interest in the suit property at the time of the alleged sale. Further, there is no demonstration that the sale was conducted in contravention of any trust or existing beneficial interest in favour of the Plaintiffs. it is trite that the right to dispose of one’s property remains with the registered owner subject only to any legal limitations and land laws and the applicants have not demonstrated that there are any exceptions that apply to them in the present case.
9. In light of the above, I find that the Plaintiffs have not established a prima facie case as required under the test set out in the Mrao case (supra). There is no apparent infringement of a legal right held by the Plaintiffs that would necessitate an explanation or rebuttal from the Defendants. Having failed to surmount this first hurdle, and bearing in mind the explanation given in the Nguruman case (supra), that the three hurdles are to be surmounted sequentially, I see no basis to determine whether irreparable loss will be occasioned to the Plaintiffs if the injunction is not granted, and balance of convenience.
10. Accordingly, I dismiss the application dated 20/3/2025 with costs to the 1st Defendant. The parties shall file and serve their respective trial bundles duly indexed and paginated the plaintiff within 14 days and the defendant within 28 days from the date of this order, the timelines running concurrently, and the suit shall be set down for fixing of a hearing date on 11/6/2025.
Dated, signed and delivered at Malindi via electronic mail on this 6th day of May 2025.
1) Spent.
2) Spent.
3) That this honourable court be pleased to issue a temporary injunction against the defendants restraining the 1st Defendant by himself, his appointed attorney, agents from threatening, selling, transferring and/or in any other manner dealing with all that portion measuring 14.3 acres or thereabouts situated at Tezo or transferring by public auction or private treaty, disposing off or otherwise completing by conveyance, transfer of any sale concluded to the property Kilifi/Tezo Roka/186 pending hearing and determination of the suit.
4) That the costs of this application be provided for.
2. The application which is supported by an affidavit sworn by Alfred Kai Rijani, the first Plaintiff herein, is premised on the following grounds: -
a) that the Plaintiffs are the biological sons of the 2nd Defendant and are automatically the beneficiaries of the properties of the 2nd Defendant including Land Reference Number Kilifi/Tezo Rika/186;
b) That the Defendants have colluded and secretly transferred ownership of Land Reference Number Kilifi/Tezo Rika/186 to the 1st Defendant thereby threatening the further inheritance of the Plaintiffs and other siblings;
c) That the 1st Defendant is in the process of subdividing the suit land with a view to selling portions to unsuspecting purchasers who may lose their investments in the event the orders prayed herein are granted and confirmed;
d) That the Defendants stand to suffer no prejudice in the event the prayers sought herein are granted given the circumstances under which the property was sold and transferred;
e) That the suit and application herein is made in good faith and the earliest time possible when the anomaly was detected hence there is no delay;
f) That the Plaintiffs are now apprehensive that they will suffer irreparable loss if the prayers sought in this application are not granted;
g) That no prejudice will be suffered by the Defendants in any way if the application herein is allowed.
3. The application is opposed. The 1st Defendant filed a replying affidavit sworn on 27/3/2025 by Stephen Gachanja Gakobo, said to be the 1st Defendant’s director. He deposed that the 1st Defendant purchased the Land Reference Number Kilifi/Tezo Rika/186 (hereinafter also referred to as “the suit property”) from the 2nd Defendant as per the sale agreement dated 13/5/2021 and exhibited as SGG-2. He also exhibited a copy of the original title registered in the name of the 2nd Defendant (SGG-3), copies of search certificate (SGG-4) and spousal consent (SGG-5). The director stated that the sale was lawfully and procedurally done and that there is no law that requires the consent of children prior to transferring land. He added that the suit property no longer exists as it has long been sub-divided and new titles issued. The 1st Defendant urged the court to dismiss the application.
4. On 20/3/2025 when the matter came up for directions, the court directed parties to exchange skeleton submissions to be highlighted on 3/4/2025 when the application was scheduled to be heard inter partes orally. On the material date, the Plaintiffs were marked absent.
5. The guiding principles for the grant of orders of temporary injunction are well settled and are set out in the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that: -
“…in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establish his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.
These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”.
6. The Plaintiffs’ case is rather bizarre. They claim that the suit property was wrongfully sold by their father thus threatening their prospective inheritance. The central issue for determination is whether the Plaintiffs have established a prima facie case to warrant the intervention of the court at this stage.
7. A prima facie case was defined by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd (2003) eKLR as –
“... in civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”
8. Applying this test, the court must determine whether the Plaintiffs have demonstrated the existence of a legal right that is likely to have been infringed. The Plaintiffs’ claim is based on a future expectation, their inheritance. The proposed testator or donor is still alive and no right of the applicants to the property has crystallized. In the present case, there is also no evidence that the Plaintiffs held any proprietary interest in the suit property at the time of the alleged sale. Further, there is no demonstration that the sale was conducted in contravention of any trust or existing beneficial interest in favour of the Plaintiffs. it is trite that the right to dispose of one’s property remains with the registered owner subject only to any legal limitations and land laws and the applicants have not demonstrated that there are any exceptions that apply to them in the present case.
9. In light of the above, I find that the Plaintiffs have not established a prima facie case as required under the test set out in the Mrao case (supra). There is no apparent infringement of a legal right held by the Plaintiffs that would necessitate an explanation or rebuttal from the Defendants. Having failed to surmount this first hurdle, and bearing in mind the explanation given in the Nguruman case (supra), that the three hurdles are to be surmounted sequentially, I see no basis to determine whether irreparable loss will be occasioned to the Plaintiffs if the injunction is not granted, and balance of convenience.
10. Accordingly, I dismiss the application dated 20/3/2025 with costs to the 1st Defendant. The parties shall file and serve their respective trial bundles duly indexed and paginated the plaintiff within 14 days and the defendant within 28 days from the date of this order, the timelines running concurrently, and the suit shall be set down for fixing of a hearing date on 11/6/2025.
Dated, signed and delivered at Malindi via electronic mail on this 6th day of May 2025.