HENGLI INTERNATIONAL (KENYA) CO. LTD VS EVERLINE NANGORUINI JOSHUA AND ROSE SHUMBA NKOLIAL AND 1 Others

RULING

1. The Plaintiff (hereinafter referred to as “the Applicant”) filed a Notice of Motion application dated 19.06.2024 (hereinafter referred to as “the present Application”) against the 1^st to 3^rd Defendants (hereinafter referred to as “the Respondents”) seeking for the following Orders; -
2. THAT this Application be certified urgent and be heard ex-parte in the first instance. (SPENT)
3. THAT pending the hearing and determination of this application inter-partes, an order of injunction be issued restraining the 3^rd Respondent by themselves, their employees, servants and agents from entering, obstructing, trespassing, wasting, constructing on, mining on or otherwise interfering with LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION. (SPENT)
4. THAT pending the hearing and determination of the suit, an order of injunction restraining the 3^rd Respondent either by themselves, their employees, servants and agents from entering, obstructing, trespassing, wasting, constructing on, mining on or otherwise interfering with LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION.
5. THAT pending the hearing and determination of this Application inter-partes, an order of this Court be issued directing the 3^rd Respondent by themselves, their employees, servants and agents to demolish the permanent and semi-permanent fence constructed on LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION (SPENT).
6. THAT pending the hearing and determination of this suit, an order of this Court be issued directing the 3^rd Respondent by themselves, their employees, servants and agents to demolish the permanent and semi-permanent fence constructed on LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION.
7. THAT the OCS Lolgorian Police Station ensure compliance with the said Orders.
8. THAT the Court do issue any other or further Orders that may be appropriate to further the ends of justice.
9. THAT the costs pf this application be provided for.
10. The Grounds upon which the above prayers are premised are contained in the body of the present Application as well as the Supporting Affidavit sworn by one WALTER OCHIENG ODINDO and are summarised as follows; -
11. The 1^st and 2^nd Respondents herein are the recorded owners of a property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION measuring approximately 70 acres.

ii)   The 1^st and 2^nd Respondents executed a Lease Agreement dated 05.06.2018 with the Applicant over a portion of 13 acres within the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION for a period of 10 years.

iii)  The Applicant subsequently took possession of the 13 acres within the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION and erected various structures as well as undertook some gold mining activities.

iv)    During the pendency of the Applicant’s Lease Agreement dated 05.06.2018, the 1^st and 2^nd Respondents once again entered into a second Lease Agreement with the 3^rd Respondent on the same property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION.

v)    Based on the second Lease Agreement between the 3^rd Respondent and the 1^st and 2^nd Respondent, the 3^rd Respondent commenced putting up a perimeter fence which interfered with the Applicant’s portion of 13 Acres on the property known as LR.NO. TRANSMARA/MASURURA ADJUDICATION SECTION thereby denying the Applicant access and/or occupation of his portion of land.

vi)    The Applicant pleaded that the actions by the 1^st to 3^rd Respondent have resulted to an inability to continue undertaking their economic activities on the portion of 13 acres which they lawfully leased within LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION and this Court should therefore remedy the situation.

1. The present Application was duly served on the 1^st and 2^nd Respondents who opposed the same by filing a Replying Affidavit dated 15.07.2024 on the following grounds; -
2. The 1^st and 2^nd Respondents admitted that they entered into a Lease Agreement with the 3^rd Respondent on the 13.12.2023 over a portion of 13.8 acres within the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION for a period of 10 acres.
3. Similarly, prior to the execution of the Lease Agreement dated 13.12.2023 between the 1^st and 2^nd Respondents and the 3^rd Respondents, another Lease Agreement had been executed between the 1^st and 2^nd Respondents and the Applicant herein.
4. However, the 1^st and 2^nd Respondent pleaded that the first Lease Agreement between the 1^st and 2^nd Respondents with the Applicant was terminated on account of failure to pay the agreed rental premiums.
5. Further to the above, the 1^st and 2^nd Respondents stated that the Applicant abandoned the portion of 13 acres which was leased from the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION and therefore is no longer in occupation of the same.
6. The 1^st and 2^nd Respondents averred that the 3^rd Respondent had a valid mining licence issued by the Ministry of Mining to carry out Gold mining activities on the leased land while the Applicant herein was undertaking similar activities but without a license thereof.
7. The 1^st and 2^nd Respondents therefore stated that it was the 3^rd Respondent who had the mining rights over the leased property until 31.12.2024 when their License so expires.
8. In conclusion, the 1^st and 2^nd Respondents averred that the Applicant had no legal rights over the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION as alleged and is not entitled to any equitable remedies from this Court and in particular the prayers sought in the present application.
9. The 3^rd Respondent was also served with the present Application and opposed the same by filing a Replying Affidavit dated 27.06.2024 on the following grounds; -
10. First and foremost, the 3^rd Respondent pleaded that the present application and suit was a gross abuse of the court process devoid of any legal merit.
11. The 3^rd Respondent pleaded that the Applicant herein had filed another suit known as KILGORIS ELC CASE NO. E004 OF 2024 between HENGLI INTERNATIONAL (KENYA) CO. LIMITED-VERSUS- HUAFENG MINING COMPANY LIMITED which was struck out because the Lower Court did not have jurisdiction.
12. Consequently, the 3^rd Respondent was of the considered view that the Applicant herein was barred under Section 6 of the Civil Procedure Act.
13. The 3^rd Respondent reiterated that it held a valid Lease Agreement dated 13.12.2023 between itself and the 1^st and 2^nd Respondents over a portion of 10 acres on the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION with the consent of the members from  the Masurura Community obtained on the 04.11.2023.
14. The 3^rd Respondent averred that at the time of executing the Lease Agreement dated 13.12.2023, the Applicant was not on the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION and there were no activities being undertaken by the Applicant to create any interest over the 1^st and 2^nd Respondent’s land.
15. The 3^rd Respondent alleged that during the earlier proceedings known as KILGORIS ELC CASE NO. E004 OF 2024 between HENGLI INTERNATIONAL (KENYA) CO. LIMITED-VERSUS- HUAFENG MINING COMPANY LIMITED, the Applicant herein produced a Lease Agreement which was not registered and therefore is not the same as that attached to the present application.
16. In conclusion, the 3^rd Respondent pleaded that the present Application is not merited and should be dismissed forthwith.
17. In reply to the Replying Affidavit sworn on the 15.07.2024 by the 1^st and 2^nd Respondents as well as the Replying Affidavit dated 27.06.2024 by the 3^rd Respondent, the Applicant filed a Supplementary Affidavit dated 16.07.2024 on which he stated as follows; -
18. The Applicant admitted that indeed the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION measuring about 70 acres belonged to the 1^st and 2^nd Respondent.
19. The Applicant averred that the portions Leased to the 3^rd Respondent and themselves were all on the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION but were different and distinct from each other.
20. The Applicant further averred that it is not in contention that the 3^rd Respondent was in the process of setting up its own Gold processing mine within the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION owned by the 1^st and 2^nd Respondent.
21. The Applicant’s position was that the 3^rd Defendant’s perimeter wall was being constructed in a manner to interfere with the access to their leased portion of land within the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION thereby making it impossible to keep their machines in a serviceable condition and protect the excavated ore on the ground.
22. In the circumstances, the Applicant sought Court to grant the prayers sought for in the present Application thereof.
23. After exchange of the above pleadings, the Court directed that the present Application be canvassed by way of written submissions.
24. The Applicant duly filed their submissions dated 29.08.2024 while the 1^st and 2^nd Respondents filed their submissions on dated 13.09.2024 and the 3^rd Respondent filed their submissions dated 12.09.2024.
25. The Court had indeed perused the present Application, the Replying Affidavits by the Respondents as well as the documentary evidence adduced herein.
26. The issue at hand is whether or not the Applicant is entitled to the prayers sought in the present Application which are basically injunctions against the 1^st to 3^rd Respondents.
27. To begin with the Applicant has invoked the Jurisdiction of this Court under Order 40 of the Civil Procedure Rules, 2010.
28. Order 40 Rule 1 and 2 provide for circumstances upon which a Court can grant the equitable remedy of an injunction pending the hearing and determination of the substantive suit.
29. In the case of NGURUMAN LIMITED-VERSUS- JAN BONDE NIELSEN & 2 OTHERS CA NO. 177 OF 2012 (2014) eKLR, the Court of Appeal pronounced itself on the ingredients of an interlocutory injunction as follows;-

“in an interlocutory injunction application, the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, if 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”.

1. On the guidance of the above authority, this Court will now discuss the three pillars to be satisfied before an order of interlocutory injunction can be issued to an applicant.

PILLAR 1- ESTABLISHMENT OF A PRIMA FACIE CASE

1. The first pillar in considering an application for injunction is to establish whether or not the Applicant has established a prima facie case against the Respondents therein.
2. In the case of MRAO-VERSUS- FIRST AMERICAN BANK OF KENYA LIMITED (2003) eKLR, the Court gave a threshold of what should be considered as a prima facie case;-

“... 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.”

1. In the present Application, the Applicant filed a Plaint dated 19.06.2024 seeking for the following Orders;-
2. A declaration that the 1^st and 2^nd Defendants breached the Lease Agreement dated 5^th June 2018 entered into between themselves and the Plaintiff;
3. A declaration that the Plaintiff is entitled to the reliefs contained in Paragraph 15 and 16 of the Lease Agreement dated 5^th June 2018 entered into between themselves and the 1^st and 2^nd Defendants;
4. A declaration that the 3^rd Defendant has trespassed onto the Plaintiff’s Leased land being LR.NO.TRANSMARA/MASURURA ADJUDICATIONS ECTION.
5. An Order of this Court of permanent injunction restraining the 1^st , 2^nd and 3^rd Defendants either by themselves, their employees, servants and agents from entering,obstructing, encroaching, wasting, constructing on, mining on or otherwise interfering with LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION contrary to the rights of the Applicant over the suit land for the remainder of the Lease Term prescribed in the Lease Agreement dated 5^th June 2018.
6. ………………………………………………………………………………..”
7. The subject matter of the Plaint dated 19.06.2024 is a Lease Agreement dated 05.06.2018 which was executed between the Applicant and the 1^st and 2^nd Defendants.
8. The Applicant’s bone of contention in the Plaint dated 19.06.2024 is that the 1^st and 2^nd Defendants have since breached the terms of the Lease Agreement dated 05.06.2018 whose term has not lapsed and/or terminated.
9. The Applicant’s pleadings in the Plaint dated 19.06.2024 is that the actions by the 1^st, 2^nd and 3^rd Defendants are interfering with its lawful and quite occupation and use of the portion of land it has leased thereby causing substantial losses thereof.
10. The 1^st and 2^nd Respondents despite  being served with the Plaint dated 19.06.202 have not so far filed any Statement of Defence in answer to the Plaint dated 19.06.2024.
11. The 3^rd Defendant however filed a Statement of Defence dated 15.07.2024 and served the same on the Applicant herein.
12. Nevertheless, the 1^st and 2^nd Respondents filed a Replying Affidavit dated 15.07.2023 which also attached some annexures therein.
13. The 1^st and 2^nd Respondents under Paragraph 6 of the Replying Affidavit dated 15.07.2023 admitted that indeed there was a Lease Agreement executed between themselves and the Applicant herein.
14. 1^st and 2^nd Respondents went further in Paragraph 6 of the Replying Affidavit dated 15.07.2024 to state that the Lease Agreement with the Applicant was terminated due to none payment of rental premiums.
15. In addition to the above, the 1^st and 2^nd Respondent also pleaded under Paragraph 9 of the Replying Affidavit dated 15.07.2024 that the Applicant had infact abandoned the Lease portion of land by the time the same was being Leased to the 3^rd Respondent herein.
16. The 3^rd Respondent on the other hand filed a Replying Affidavit dated 27.06.2024 whereby it pleaded that it had a valid Lease Agreement dated 13.12.2023 from the 1^st and 2^nd Respondents with the approval of the Masurura Community and the Area Chief.
17. In essence therefore, the portion within the suit property in which they were occupying was lawfully their property and the Applicant had no legal rights over the same.
18. Based on the above facts, this Court is satisfied that indeed the Applicant and the 1^st and 2^nd Respondents herein had once executed a Lease Agreement dated 05.06.2018.
19. Both the Applicant and the 1^st, 2^nd and 3^rd Respondents have produced a Lease Agreement dated 05.06.2018 although the Respondents allege that the same was never registered.
20. As to whether the Lease Agreement dated 05.06.2018 was registered or not, the existence of the said Lease Agreement can not be wished away because it gives the intentions and covenants between the Applicant and the 1^st and 2^nd Respondents over the Leased portion of the property known as LR.NO.TRANSMARA/MASUSURA ADJUDICATION SECTION.
21. Turning to the Lease Agreement dated 05.06.2018, it is clear that the Applicant leased a portion of 13 acres from the 1^st and 2^nd Respondents property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION that measured 70 acres.
22. Clause 3 of the Agreement provides for the period of the Lease Agreement dated 05.06.2018 to be Ten (10) years from 05.06.2018 and would terminate on 04.07.2028.
23. Clause 6 of the Agreement indicates that the 1^st and 2^nd Respondents have duly identified the portion Leased to the Applicant and the Applicant is satisfied by the land condition and the 1^st and 2^nd Respondents have undertaken not to sub-lease, sale or charge the aforesaid land parcel till the lapse of the agreed Lease period unless with written consent of the Applicant.
24. Clause 10 of the Agreement provides that the 1^st and 2^nd Respondents shall provide access roads and other facilities within the mining area which the Applicant might require during the process of mining.
25. Clause 15 of the Agreement states that any party wishing to terminate this Agreement shall do so by way of a WRITTEN NOTICE OF NOT LESS THAN NINETY (90) DAYS wherein such a party shall be required to compensate the innocent party as per the conditions set out in Paragraph 16.
26. The 1^st and 2^nd Respondents in their Replying Affidavit dated 15.07.2024 have not denied the existence of the Lease Agreement dated 05.06.2018 but allege that the same was terminated due to none payment of rental premiums and the Lease portion being abandoned.
27. However, the 1^st and 2^nd Respondents did not provide any termination notice as provided for under Clause 15 of the Lease Agreement dated 05.06.2018.
28. The mere fact that the Applicant is alleged to have abandoned the Leased portion under the Lease Agreement dated 05.06.2024 does not grant the 1^st and 2^nd Respondents the rights to re-enter the Applicant’s Leased portion without complying with the terms of the Lease Agreement dated 05.06.2024.
29. The 3^rd Respondent did not really comment much on the Lease Agreement dated 05.06.2018 save for the fact that Lease Agreement produced by the Applicant in the proceedings known as KILGORIS ELC CASE NO. E004 OF 2024 had not been registered and therefore cannot be enforced.
30. The issue of the validity and the enforceability of the Lease Agreement dated 05.06.2018 is in the Court’s considered view an issue for determination in the main hearing and therefore this Court will not make any comment on the same.
31. However, from the 3^rd Respondent’s Replying Affidavit dated 27.06.2024, it is clear that they are aware of the Lease Agreement dated 05.06.2018 between the 1^st and 2^nd Respondents and the Applicant.
32. This Court is therefore satisfied that the Applicant has a prima facie case against the 1^st and 2^nd Respondents to determine the reasons and/or manner in which they terminated the Lease Agreement dated 05.06.2018 executed with the Applicant over the portion of 13 acres within the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATIONS ECTION before the lapse of the Leased period and re-entered on the same.
33. Similarly, the Applicant has a prima facie case against the 3^rd Respondent to determine whether or not the portion it Leased under the Lease Agreement dated 13.12.2023 encroached and/or inhibited the Applicant’s occupation of the Leased portion under the Lease Agreement dated 06.05.2018.
34. In conclusion, this Court hereby makes a finding that the Applicant has a prima facie case against the 1^st, 2^nd and 3^rd Respondents as required under this pillar.

PILLAR 2- DEMONSTRATION OF IRREPARABLE INJURY IF TEMPORARY INJUNCTION IS NOT GRANTED.

1. The second issue for determination in an application for injunction is whether the Applicant has demonstrated irreparable injury and/or loss especially if the injunction is not granted.
2. The Applicant in the grounds pleaded in the present Application and the Supporting Affidavit dated 19.06.2024 is a registered Kenyan Company with a Prospecting License NO. PL/2014/002 from the Ministry of Petroleum and Mining which was assigned to it through a Transfer of Prospecting License from LDG LIVIZA DEVELOPMENT GERMANY GMBH COMPANY LIMITED
3. The Applicant further pleaded that upon acquiring the Lease Agreement dated 05.06.2024 from the 1^st and 2^nd Respondent, the same was registered with Ministry of Lands on the 03.04.2019.
4. According to the Applicants, the portion of 13 acres leased from the 1^st and 2^nd Respondents was put into use through undertaking Gold Mining activities until December 2023 when the 3^rd Respondent unlawfully trespassed into the Applicant’s leased portion and began erecting a perimeter fence.
5. The actions of the 3^rd Respondent prompted the Applicant to register a dispute at the State Department of Mining offices located in Migori through a letter dated 30.12.2023.
6. According to the State Department of Mining offices located in Migori pursuant to their letter dated 05.01.2024, the 3^rd Respondent was indeed a company registered in Kenya but did not have a Mining License as at 05.01.2024.
7. The Applicant pleaded that the 3^rd Respondent was issued with a Processing License on the 16.04.2024 with an intention of processing the coal gold ore that was excavated by the Applicant in the year 2019.
8. The Applicant’s position therefore is that there is a real danger that the 3^rd Respondent may use and process the coal gold ore which had been excavated by the Applicant in the year 2019 and further undertake mining activities on the Leased portion by the Applicant hence exhausting the gold ore and thereby causing irreparable loss and harm to the operations of the Applicant.
9. The 1^st and 2^nd Respondents in the Replying Affidavit dated 15.07.2024 pleaded that the portion Leased to the Applicant under the Lease Agreement dated 05.06.2018 and that Leased to the 3^rd Respondent in the Lease Agreement dated 13.12.2024 were in fact separate and distinct.
10. The 1^st and 2^nd Respondents produced a Letter dated 25.06.2024 from the State Department of Mining offices in Migori to confirm the same.
11. The 1^st and 2^nd Respondents nevertheless proceeded to admit that indeed the 3^rd Respondent had secured a Gold processing License under the Mining Act and that the Applicant herein did not have any processing License issued by the Ministry of Mining.
12. The 3^rd Respondent in their Replying Affidavit dated 27.06.2024 reiterate that fact that they have since been issued processing License which is valid until 31.12.2024.
13. To be able to understand what damage is to be suffered by an Applicant in an Application for injunction, the Court needs to look at the intention of the parties when creating the relationship and/or documents that bind their relationship and/or transaction.
14. In the case before this Court, the Lease Agreement between the Applicant and the 1^st and 2^nd Respondents was to facilitate the Mining activities of the Applicant over a portion measuring 13 acres of the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION.
15. The Applicant submitted that upon executing the Lease Agreement dated 05.06.2018 with the 1^st and 2^nd Respondents, it took possession and use of the said portion of 13 acres on the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION until December 2023 when the 3^rd Respondent began constructing a semi-permanent and permanent perimeter wall.
16. According to the Supplementary Affidavit sworn on the 16.07.2024 by the Applicant, the 3^rd Respondent’s actions have blocked the access road to their Leased portion thereby making it impossible for them to continue with possession and use of their land and hence exposing them to a risk of loss in terms of the coal gold ore already excavated and/or running their operations herein.
17. According to the Letter 25.06.2024 from the State Department of Mining Offices in Migori produced by the 1^st and 2^nd Respondents are annextures ENJ-3, it is clear that the portion Leased by the Applicant herein is different from the portion Leased by the 3^rd Respondent keeping in mind the Co-ordinates.
18. The Letter dated 25.06.2024 went even further to draw a Sketch Map of how the two portions of land Leased to the Applicant and the 3^rd Respondent should be placed on the ground using the Online Mining Cadastral Map.
19. The only issue then is whether the 1^st and 2^nd Respondents have provided for an access road to the Applicant to access and use its Leased portion as undertaken and intended Under Clause 10 of the Lease Agreement dated 05.06.2018.
20. Unfortunately, the 1^st and 2^nd Respondents did not provide any sketch map and/or demonstrate the existence of an access road to the Applicant’s leased portion of land within LR.No. TRANSMARA/MASURURA ADJUDICATION SECTION.
21. This omission by the 1^st and 2^nd Respondent is rather a serious one as it makes it impossible for the Applicant to access the Leased portion of land on the property known as LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION and the obvious result of this inability is the shut down of the Applicant’s operations and total loss of their business venture which in this Court’s view amounts to irreparable loss and damage in both its books of accounts and reputation as a business entity.

BALANCE OF CONVENIENCE

1. The third and last pillar for determination is where the balance of convenience tilts.
2. In the case of JULIOUS KIPCHICHIR KEGO-VERSUS- FRANK KIMELI TENAI (2018) eKLR, the Court described the pillar relating to balance of convenience as follows; -

‘The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. 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 will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.

In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”.

1. In the case of AMIR SULEIMAN-VERSUS-AMBOSELI RESORT LIMITED (2004) eKLR, the Court observed the following on the issue of balance of convenience; -

“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”

1. Lastly, in the case of ROBERT MUGO WA KARANJA-VERSUS- ECOBANK (KENYA) LIMITED & ANOTHER (2019) eKLR, the Court was of the considered view; -

“circumstances for consideration before granting a temporary injunction under order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”

1. Based on the finding of this Court on Issues No. 1 and 2 hereinabove and the provisions of Order 40 Rule 1 (a) of the Civil Procedure Rules, 2010, this Court makes a finding that the balance of convenience in the present Application tilts in favour of the Applicant herein.

CONCLUSION

1. In conclusion therefore, this Court hereby makes the following Orders in determination on the present Application; -
2. PENDING THE HEARING AND DETERMINATION OF THE SUBSTANTIVE SUIT HEREIN, THE LEASE AGREEMENT DATED 05.06.2018 BETWEEN THE PLAINTIFF/APPLICANT AND THE 1^ST AND 2^ND DEFENDANTS/RESPONDENTS SHALL CONTINUE TO BE IN FORCE INCLUDING OCCUPATION AND USE OF THE LEASED PORTION MEASURING 13 ACRES ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION.
3. PENDING THE HEARING AND DETERMINATION OF THE SUBSTANTIVE SUIT HEREIN, THE 3^RD DEFENDANT/RESPONDENT IS HEREBY PROHIBITED BY WAY OF INJUNCTION FROM ENTERING INTO, OBSTRUCTING, TRESPASSING, WASTING, CONSTRUCTING ON, MINING ON OR OTHERWISE INTERFERING WITH THE PLAINTIFF’S/APPLICANT’S PORTION OF LAND MEASURING APPROXIMATELY 13 ACRES ON THE 1^ST AND 2^ND RESPONDENT’S PROPERTY KNOWN AS LR.NO.TRANSMARA/MASURURA ADJUDICATION SECTION.
4. THE 1^ST AND 2^ND DEFENDANTS/RESPONDENTS ARE HEREBY DIRECTED THAT PENDING THE HEARING AND DETERMINATION OF THE SUBSTANTIVE SUIT HEREIN DO PROVIDE A SIX-METER-WIDE ACCESS ROAD TO THE PLAINTIFF’S/APPLICANT’S LEASED PORTION OF 13 ACRES UNDER THE LEASE AGREEMENT DATED 05.06.2018 WITHIN SEVEN (7) DAYS FROM THE DATE OF THIS RULING.
5. FOR GOOD ORDER AND HARMONY BETWEEN THE PLAINTIFF/APPLICANT AND THE 3^RD RESPONDENT/RESPONDENT, THE 1^ST AND 2^ND DEFENDANTS/RESPONDENTS ARE HEREBY DIRECTED TO UNDERTAKE A DEMACATION EXERCISE AND CLEARLY PLACE BOUNDARY MARKINGS DELIENATING THE PLAINTIFF’S/APPLICANT’S PORTION OF LAND MEASURING 13 ACRES AS CONTAINED IN THE LEASE AGREEMENT DATED 05.06.2018 AND THE 3^RD DEFENDANT/RESPONDENTS PORTION OF 13.8 ACRES LEASED UNDER THE LEASE AGREEMENT DATED 13.12.2023 WITHIN 14 DAYS FROM THE DATE OF THIS RULING.
6. EACH PARTY WILL BEAR ITS OWN COSTS AS TO THIS APPLICATION.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 21^ST NOVEMBER 2024.

IN THE PRESENCE OF:

COURT ASSISTANT: MR. NGENO

ADVOCATES FOR THE APPLICANT: MR. WAUDO & MS. OKUN FOR THE PLAINTIFF’S/APPLICANT

ADVOCATES FOR THE 1^ST & 2^ND RESPONDENTS: MR. GITHINJI H/B FOR MS. KEMUNTO

ADVOCATE FOR THE 3^RD RESPONDENT: MR. GITHINJI