REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MACHAKOS LAW COURTS
MATRIMONIAL PROPERTY CAUSE NO. HCFOS/E003 OF 2024
FELISTA GATHONI KIONGERA……………...…….........……APPLICANT
-VERSUS-
ROBERT MUNGAI KIONGERA……………………….....…..RESPONDENT
RULING
1. This ruling is on the Applicant’s notice of motion application dated 16th October 2024 seeking for orders:
a. Spent.
b. THAT pending determination of the suit, and in particular prayers herein, an order do issue appointing a reputable estate management agent/receiver to take charge manage and collect all rents collectable from the buildings being on the suit lands and taking account the outgoings deposit the net thereof into court or into a joint interest earning account to be opened as this Honourable court may direct.
c. THAT pending the determination of the suit, this Honourable court do issue preservation orders in respect of the suit properties and income to the effect that the Respondent or his agents/servants and/or anybody claiming under or through the Respondent should not sell, charge, transfer and/or in any way whatsoever alienate the suit properties namely Plot No. 14 (vide certificate of share No. 14 of Kimbwaru properties) measuring approximately 40 x 60 ft and curved from parcel of land No. NAIROBI BLOCK 125/375 situated in Nairobi County within the Republic of Kenya. (hereinafter referred to as "suit property”).
d. THAT Pending the determination of the suit, this Honourable court do issue preservation order as to all income drawn from Plot No. 14 (vide certificate of share No. 14 of Kimbwaru properties) measuring approximately 40 x 60 ft and curved from parcel of land No. NAIROBI BLOCK 125/375 situated in Nairobi County within the Republic of Kenya by appointing an agent to collect such rent and furnish the court with such records.
e. THAT there be orders as to costs.
2. The application is supported by the affidavit of Felista Gathoni Komu and/or Felista Gathoni Kiongera sworn on 16/04/2024, the Applicant and primarily seeks for preservation orders in respect of the suit properties and income and interlocutory injunction orders restraining the Respondent from any dealings with the suit property pending hearing and determination of the main suit. The application is premised on the grounds set out on the face therein including that the Applicant and the Respondent are legally married on 1st day of March 2019. After their said marriage, the parties lived and cohabited together as husband and wife. The Applicant purchased and built a two-storey apartment on Plot No. 14 (vide certificate of share No. 14 of Kimbwaru properties) measuring approximately 40 x 60 ft and curved from parcel of land No. NAIROBI BLOCK 125/375 situated in Nairobi County within the Republic of Kenya (hereinafter referred to as "suit property").
3. On or about 17th day of March 2024 the parties separated owing to irreconcilable differences. At the time of separation, they had lived together for more than Five (5) years cumulatively as husband and wife in Tacoma Washington United States of America. Following the breakdown in the relationship, the Respondent has attempted and or intends to transfer the suit properties and which the Applicant personally contributed towards their acquisition for the benefit of the family. That the Respondent has selfishly enriched himself with the income drawn from the suit property that the Applicant contributed towards construction. During the subsistence of their long-term relationship or marriage, the parties acquired the suit properties through joint efforts and direct and indirect contributions wherefore, the Applicant has a prima facie case with overwhelming chance of success. The Respondent will not suffer any prejudice if the orders prayed herein are granted
4. In opposing the application, the Respondent filed a replying affidavit sworn by Mr. Robert Mungai Kiongera on 4th December, 2024 and another sworn by Mrs. Mary Mukonyo Githuka on 10th July, 2025. The Respondent Robert Mungai Kiongera in his replying affidavit basically denies the averments raised by the Applicant in the application and maintains that he also contributed to the acquisition of the suit property and other undisclosed properties. Mary Mukonyo Githuka in her affidavit, states that it is the Respondent who acquired the suit property on his own without any contribution from the Applicant as she is the one who paid the full purchase price on behalf of the Respondent to the Vendor after he sent to her the said amounts.
5. The court directed parties to file and exchange written submissions in canvassing the application. Both parties complied and filed their respective written submissions.
Analysis and Determination
6. I have carefully considered the application, the supporting affidavit, the two replying affidavits filed in opposition thereof and the Parties’ counsel submissions.
7. First and foremost, I must address a pertinent issue raised in the Respondent’s submissions dated 28th October 2025. The Respondent faults the supporting affidavit sworn by the Applicant in support of her notice of motion application dated 16th October, 2024, raising a central question as to whether the said supporting affidavit annexed to the Applicant’s application complies with both statutory and regulatory requirements on the making, execution and commissioning of affidavits in our jurisdiction under Section 5 of the Oaths and Statutory Declarations Act (CAP 15).
8. This court notes that the above issue of the Applicant’s supporting affidavit was not raised either in the Respondent’s replying affidavit or as a preliminary objection so as to allow the Applicant to respond to the same. In addition, the said pertinent issue has been raised in the Respondent’s submissions. It is trite that submissions cannot take the place of pleadings and it is my considered view that the Respondent cannot challenge the competence of the supporting affidavit through submissions. In any event the Respondent has not demonstrated any prejudice the Applicant’s supporting affidavit has occasioned him. In fact, the Respondent did respond to the application thus submitting to what the Applicant has raised in the supporting affidavit. The defect if any in the supporting affidavit can appropriately be cured by filing of an amended application with a proper supporting affidavit.
9. The challenge to the supporting affidavit having not been appropriately raised and the Applicant having not been invited to respond to the same, I will not belabour to determine the issue in detail and I find the same to be misplaced in the circumstances.
10. Secondly, on whether the conditions for granting of an interlocutory injunction have been met by the Applicant, an injunction, being a discretionary remedy is granted on the basis of evidence and sound legal principles.
11. Undoubtedly, the substantive issue in dispute in this matter is alleged matrimonial property being a two-storey apartment on Plot No. 14 (vide certificate of share No. 14 of Kimbwaru properties) measuring approximately 40 x 60 ft and curved from parcel of land No. NAIROBI BLOCK 125/375 situated in Nairobi County within the Republic of Kenya (hereinafter referred to as "suit property").
12. Rule 20 (2) of the Matrimonial Property Rules of 2022 provides as follows;
“A party to the proceedings may, before or after commencement of the proceedings under these Rules, but before the final determination of the respective claims, apply for temporary injunctions or other interlocutory orders in accordance with Order 40 of the Civil Procedure Rules, 2010, and the court may grant the orders sought on such terms or conditions as may be just in the circumstances.”
13. The principles and/or conditions for granting of an interlocutory injunction were set out by the Court of Appeal in the famous GIELLA VS. CASSMAN BROWN & CO., LTD. [1973] E.A. 358 (Cited in JM v SMK & 4 others [2022] KEHC 2265 (KLR)) where it was stated that the court has to consider the following before granting injunctive relief:-
“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience (E.A. INDUSTRIES VS. TRUFOODS [1972] E.A. 420.)”
14. These conditions for the award of injunctions were buttressed in American Cyanamid Co. vs Ethicom Limited (1975) AER 504, which was quoted with approval in Stanley Anyamba Ageyo & another v Musa Matu Riunga & 5 others [2022] eKLR, where three conditions were noted to be of great importance namely:
i. There must be a serious/fair issue to be tried (Prima facie case),
ii. Damages are not an adequate remedy,
iii. The balance of convenience lies in favour of granting or refusing the application.
15. However, in the case of Jan Bolden Nielsen vs. Herman Phillipus Steyn alias Hermannus Phillipus Steyn & 2 Others (2012) eKLR, Mabeya J stated that:-
‘I believe that in dealing with an application for an interlocutory injunction, the court is not necessarily bound to the three principles set out in the Giella vs Cassman Brown Case. The court may look at the circumstances of the case generally and the overriding objective of the law. In Suleiman vs. Amboseli Resort Ltd (2004) eKLR 589 Ojwang Ag. J (as he then was) at page 607 delivered himself thus:-
‘....counsel for the defendant urged that the shape of the law governing the grant of injunctive relief was long ago in Giella vs Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel in that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before”
16. Justice Hoffman in the English case of Films Rover International made this point regarding the grant of injunctive relief (1986) 3 All ER 772 at page 780-781:-
“A fundamental principle is that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”
17. Having observed that the dispute herein relates to an alleged matrimonial property and the Applicant herein being a spouse to the Respondent, a fact that is not disputed, she has a right to the suit property as enshrined in the Constitution under Article 45(3) which right this Court ought to protect. The Applicant contends that she substantially contributed to the acquisition and development of the suit property as she will prove at the hearing of the suit. She further contends that the Respondent has selfishly enriched himself with the income drawn from the suit property. Thus, the Applicant has established a prima facie case with a probability of success.
18. In Mrao Ltd vs Ltd vs First American Bank of Kenya and 2 Others, (2003) KLR 125 which was cited with approval in Moses C. Muhia Njoroge & 2 Others vs Jane W Lesaloi and 5 Others, (2014) eKLR, the Court of Appeal defined a prima facie case as:
"A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”.
19. The second test for determination is whether the Applicant will suffer irreparable loss. The following paragraph in Halsbury’s Laws of England is instructive. It reads :-
“It is the very first principle of injunction law that prima facie the court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. Where the court interferes by way of an injunction to prevent an injury in respect of which there is a legal remedy, it does so upon two distinct grounds first, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages an injunction may be granted, if the act in respect of which relief is sought is likely to destroy the subject matter in question.” [Emphasis underlined]
20. Should the Respondent, his servant and or agents or anyone acting for the Respondent are let to deal with the suit property in any manner, this is likely to destroy the subject of the matter in question and render the application as well as the suit nugatory.
21. On the foregoing, this court finds that the Applicant risks suffering great injustice unless this Court intervenes and grants the injunctive orders being sought.
22. As regards balance of convenient, in the present case, it is not in doubt that the Respondent is enjoying occupation of the suit property and receiving rental income from the same without considering the Applicant, by the time the suit is heard and determined, the Respondent will have eaten his cake and had it too which is not equity at all to the parties.
23. The High court in Paul Gitonga Wanjau vs. Gathuthis Tea Factory Company Ltd & 2 others (2016) eKLR, exposed the balance of convenience as follows:
"Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies. "
24. In Chebii Kipkoech v Barnabas Tuitoek Bargoria & Anor (2019) eKLR where the court stated that:-
“Although it is called balance of convenience, it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater that that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the Plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater that which is likely to arise from granting it”
25. On the whole, the Applicant has satisfied the principles established in the famous Giella vs Cassman Brown case for grant of an interlocutory injunction.
26. Accordingly, the Applicant’s application dated 16th October 2024 is found to be meritorious and the court makes the following orders:-
a. Pending the determination of the suit, there shall be an order restraining the Respondent or his agents/servants and/or anybody claiming under or through the Respondent from not selling, charging, transferring and/or in any way whatsoever alienate the suit properties namely Plot No. 14 (vide certificate of share No. 14 of Kimbwaru properties) measuring approximately 40 x 60 ft and curved from parcel of land No. NAIROBI BLOCK 125/375 situated in Nairobi County within the Republic of Kenya and the buildings thereon. (hereinafter referred to as "suit property”).
b. In the meantime, this file shall be referred to Court annexed Mediation for parties to mutually agree on the management and collection of all rent receivable from the buildings on the suit property and taking of accounts on the outgoing deposit and the net thereof.
c. Costs will be in the cause.
d. A mention dated to be fixed for an update on the mediation progress and for further orders of the court.
RULING DATED & SIGNED AT MACHAKOS THIS 30TH JULY 2026
NOEL ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 30TH JULY 2026
In the presence of :-
IN THE HIGH COURT OF KENYA AT MACHAKOS
MACHAKOS LAW COURTS
MATRIMONIAL PROPERTY CAUSE NO. HCFOS/E003 OF 2024
FELISTA GATHONI KIONGERA……………...…….........……APPLICANT
-VERSUS-
ROBERT MUNGAI KIONGERA……………………….....…..RESPONDENT
RULING
1. This ruling is on the Applicant’s notice of motion application dated 16th October 2024 seeking for orders:
a. Spent.
b. THAT pending determination of the suit, and in particular prayers herein, an order do issue appointing a reputable estate management agent/receiver to take charge manage and collect all rents collectable from the buildings being on the suit lands and taking account the outgoings deposit the net thereof into court or into a joint interest earning account to be opened as this Honourable court may direct.
c. THAT pending the determination of the suit, this Honourable court do issue preservation orders in respect of the suit properties and income to the effect that the Respondent or his agents/servants and/or anybody claiming under or through the Respondent should not sell, charge, transfer and/or in any way whatsoever alienate the suit properties namely Plot No. 14 (vide certificate of share No. 14 of Kimbwaru properties) measuring approximately 40 x 60 ft and curved from parcel of land No. NAIROBI BLOCK 125/375 situated in Nairobi County within the Republic of Kenya. (hereinafter referred to as "suit property”).
d. THAT Pending the determination of the suit, this Honourable court do issue preservation order as to all income drawn from Plot No. 14 (vide certificate of share No. 14 of Kimbwaru properties) measuring approximately 40 x 60 ft and curved from parcel of land No. NAIROBI BLOCK 125/375 situated in Nairobi County within the Republic of Kenya by appointing an agent to collect such rent and furnish the court with such records.
e. THAT there be orders as to costs.
2. The application is supported by the affidavit of Felista Gathoni Komu and/or Felista Gathoni Kiongera sworn on 16/04/2024, the Applicant and primarily seeks for preservation orders in respect of the suit properties and income and interlocutory injunction orders restraining the Respondent from any dealings with the suit property pending hearing and determination of the main suit. The application is premised on the grounds set out on the face therein including that the Applicant and the Respondent are legally married on 1st day of March 2019. After their said marriage, the parties lived and cohabited together as husband and wife. The Applicant purchased and built a two-storey apartment on Plot No. 14 (vide certificate of share No. 14 of Kimbwaru properties) measuring approximately 40 x 60 ft and curved from parcel of land No. NAIROBI BLOCK 125/375 situated in Nairobi County within the Republic of Kenya (hereinafter referred to as "suit property").
3. On or about 17th day of March 2024 the parties separated owing to irreconcilable differences. At the time of separation, they had lived together for more than Five (5) years cumulatively as husband and wife in Tacoma Washington United States of America. Following the breakdown in the relationship, the Respondent has attempted and or intends to transfer the suit properties and which the Applicant personally contributed towards their acquisition for the benefit of the family. That the Respondent has selfishly enriched himself with the income drawn from the suit property that the Applicant contributed towards construction. During the subsistence of their long-term relationship or marriage, the parties acquired the suit properties through joint efforts and direct and indirect contributions wherefore, the Applicant has a prima facie case with overwhelming chance of success. The Respondent will not suffer any prejudice if the orders prayed herein are granted
4. In opposing the application, the Respondent filed a replying affidavit sworn by Mr. Robert Mungai Kiongera on 4th December, 2024 and another sworn by Mrs. Mary Mukonyo Githuka on 10th July, 2025. The Respondent Robert Mungai Kiongera in his replying affidavit basically denies the averments raised by the Applicant in the application and maintains that he also contributed to the acquisition of the suit property and other undisclosed properties. Mary Mukonyo Githuka in her affidavit, states that it is the Respondent who acquired the suit property on his own without any contribution from the Applicant as she is the one who paid the full purchase price on behalf of the Respondent to the Vendor after he sent to her the said amounts.
5. The court directed parties to file and exchange written submissions in canvassing the application. Both parties complied and filed their respective written submissions.
Analysis and Determination
6. I have carefully considered the application, the supporting affidavit, the two replying affidavits filed in opposition thereof and the Parties’ counsel submissions.
7. First and foremost, I must address a pertinent issue raised in the Respondent’s submissions dated 28th October 2025. The Respondent faults the supporting affidavit sworn by the Applicant in support of her notice of motion application dated 16th October, 2024, raising a central question as to whether the said supporting affidavit annexed to the Applicant’s application complies with both statutory and regulatory requirements on the making, execution and commissioning of affidavits in our jurisdiction under Section 5 of the Oaths and Statutory Declarations Act (CAP 15).
8. This court notes that the above issue of the Applicant’s supporting affidavit was not raised either in the Respondent’s replying affidavit or as a preliminary objection so as to allow the Applicant to respond to the same. In addition, the said pertinent issue has been raised in the Respondent’s submissions. It is trite that submissions cannot take the place of pleadings and it is my considered view that the Respondent cannot challenge the competence of the supporting affidavit through submissions. In any event the Respondent has not demonstrated any prejudice the Applicant’s supporting affidavit has occasioned him. In fact, the Respondent did respond to the application thus submitting to what the Applicant has raised in the supporting affidavit. The defect if any in the supporting affidavit can appropriately be cured by filing of an amended application with a proper supporting affidavit.
9. The challenge to the supporting affidavit having not been appropriately raised and the Applicant having not been invited to respond to the same, I will not belabour to determine the issue in detail and I find the same to be misplaced in the circumstances.
10. Secondly, on whether the conditions for granting of an interlocutory injunction have been met by the Applicant, an injunction, being a discretionary remedy is granted on the basis of evidence and sound legal principles.
11. Undoubtedly, the substantive issue in dispute in this matter is alleged matrimonial property being a two-storey apartment on Plot No. 14 (vide certificate of share No. 14 of Kimbwaru properties) measuring approximately 40 x 60 ft and curved from parcel of land No. NAIROBI BLOCK 125/375 situated in Nairobi County within the Republic of Kenya (hereinafter referred to as "suit property").
12. Rule 20 (2) of the Matrimonial Property Rules of 2022 provides as follows;
“A party to the proceedings may, before or after commencement of the proceedings under these Rules, but before the final determination of the respective claims, apply for temporary injunctions or other interlocutory orders in accordance with Order 40 of the Civil Procedure Rules, 2010, and the court may grant the orders sought on such terms or conditions as may be just in the circumstances.”
13. The principles and/or conditions for granting of an interlocutory injunction were set out by the Court of Appeal in the famous GIELLA VS. CASSMAN BROWN & CO., LTD. [1973] E.A. 358 (Cited in JM v SMK & 4 others [2022] KEHC 2265 (KLR)) where it was stated that the court has to consider the following before granting injunctive relief:-
“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience (E.A. INDUSTRIES VS. TRUFOODS [1972] E.A. 420.)”
14. These conditions for the award of injunctions were buttressed in American Cyanamid Co. vs Ethicom Limited (1975) AER 504, which was quoted with approval in Stanley Anyamba Ageyo & another v Musa Matu Riunga & 5 others [2022] eKLR, where three conditions were noted to be of great importance namely:
i. There must be a serious/fair issue to be tried (Prima facie case),
ii. Damages are not an adequate remedy,
iii. The balance of convenience lies in favour of granting or refusing the application.
15. However, in the case of Jan Bolden Nielsen vs. Herman Phillipus Steyn alias Hermannus Phillipus Steyn & 2 Others (2012) eKLR, Mabeya J stated that:-
‘I believe that in dealing with an application for an interlocutory injunction, the court is not necessarily bound to the three principles set out in the Giella vs Cassman Brown Case. The court may look at the circumstances of the case generally and the overriding objective of the law. In Suleiman vs. Amboseli Resort Ltd (2004) eKLR 589 Ojwang Ag. J (as he then was) at page 607 delivered himself thus:-
‘....counsel for the defendant urged that the shape of the law governing the grant of injunctive relief was long ago in Giella vs Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel in that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before”
16. Justice Hoffman in the English case of Films Rover International made this point regarding the grant of injunctive relief (1986) 3 All ER 772 at page 780-781:-
“A fundamental principle is that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”
17. Having observed that the dispute herein relates to an alleged matrimonial property and the Applicant herein being a spouse to the Respondent, a fact that is not disputed, she has a right to the suit property as enshrined in the Constitution under Article 45(3) which right this Court ought to protect. The Applicant contends that she substantially contributed to the acquisition and development of the suit property as she will prove at the hearing of the suit. She further contends that the Respondent has selfishly enriched himself with the income drawn from the suit property. Thus, the Applicant has established a prima facie case with a probability of success.
18. In Mrao Ltd vs Ltd vs First American Bank of Kenya and 2 Others, (2003) KLR 125 which was cited with approval in Moses C. Muhia Njoroge & 2 Others vs Jane W Lesaloi and 5 Others, (2014) eKLR, the Court of Appeal defined a prima facie case as:
"A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”.
19. The second test for determination is whether the Applicant will suffer irreparable loss. The following paragraph in Halsbury’s Laws of England is instructive. It reads :-
“It is the very first principle of injunction law that prima facie the court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. Where the court interferes by way of an injunction to prevent an injury in respect of which there is a legal remedy, it does so upon two distinct grounds first, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages an injunction may be granted, if the act in respect of which relief is sought is likely to destroy the subject matter in question.” [Emphasis underlined]
20. Should the Respondent, his servant and or agents or anyone acting for the Respondent are let to deal with the suit property in any manner, this is likely to destroy the subject of the matter in question and render the application as well as the suit nugatory.
21. On the foregoing, this court finds that the Applicant risks suffering great injustice unless this Court intervenes and grants the injunctive orders being sought.
22. As regards balance of convenient, in the present case, it is not in doubt that the Respondent is enjoying occupation of the suit property and receiving rental income from the same without considering the Applicant, by the time the suit is heard and determined, the Respondent will have eaten his cake and had it too which is not equity at all to the parties.
23. The High court in Paul Gitonga Wanjau vs. Gathuthis Tea Factory Company Ltd & 2 others (2016) eKLR, exposed the balance of convenience as follows:
"Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies. "
24. In Chebii Kipkoech v Barnabas Tuitoek Bargoria & Anor (2019) eKLR where the court stated that:-
“Although it is called balance of convenience, it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater that that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the Plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater that which is likely to arise from granting it”
25. On the whole, the Applicant has satisfied the principles established in the famous Giella vs Cassman Brown case for grant of an interlocutory injunction.
26. Accordingly, the Applicant’s application dated 16th October 2024 is found to be meritorious and the court makes the following orders:-
a. Pending the determination of the suit, there shall be an order restraining the Respondent or his agents/servants and/or anybody claiming under or through the Respondent from not selling, charging, transferring and/or in any way whatsoever alienate the suit properties namely Plot No. 14 (vide certificate of share No. 14 of Kimbwaru properties) measuring approximately 40 x 60 ft and curved from parcel of land No. NAIROBI BLOCK 125/375 situated in Nairobi County within the Republic of Kenya and the buildings thereon. (hereinafter referred to as "suit property”).
b. In the meantime, this file shall be referred to Court annexed Mediation for parties to mutually agree on the management and collection of all rent receivable from the buildings on the suit property and taking of accounts on the outgoing deposit and the net thereof.
c. Costs will be in the cause.
d. A mention dated to be fixed for an update on the mediation progress and for further orders of the court.
RULING DATED & SIGNED AT MACHAKOS THIS 30TH JULY 2026
NOEL ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 30TH JULY 2026
In the presence of :-