'
(On whether to grant a temporary injunction at the interlocutory stage)
The applicant’s case
1. The Plaintiff/Applicant filed a Notice of Motion application dated 19th June 2025. He brought it under Certificate of Urgency on 19th June, 2025. He sought ORDERS:
a) …Spent
b) …Spent
c) THAT pending the hearing and determination of this suit, an injunction do issue restraining the respondents herein, their relatives, agents or lessees or whomsoever is acting in pursuit of a common goal with the respondents from carrying out mining activities and/or wasting in whatsoever manner the suit land known as WEST KASIPUL/KANYANGO KOKAL/1961, 2054, 3508, 3509, 3510, 3511, 3512, 3513, 3514 and 3515.
2. The application was based on a number of grounds set out on the face of it as well as the depositions in the Supporting Affidavit which was sworn the Applicant, John Owore Okoyo on 19th June 2025.
3. The applicant stated that the suit property belonged to his deceased father, one OKOYO KUNGA, who was the registered owner of the same. The parcel of land was known as WEST KASIPUL/KONYANGO KOKAL/658. He deponed further that he was the surviving beneficiary of the Estate of his deceased father. Further that the defendants, in his absence, went through or conducted a Succession process at Kisii (presumably law courts), obtained letters of administration and subsequently shared the suit land among themselves hence denying him his right to inheritance. The applicant added that he instituted the instant suit against the defendants, but during the pendency of the suit, the defendants began mining gold from the suit properties. As a consequence, he approached this court seeking injunctive reliefs against the defendants and all those associated with them who were involved in the course of interfering with the suit property.
4. The Applicant annexed a letter dated 23rd October 2020, written by the area Chief. It indicates that he was the only son of his father, OKOYO KUNGA, now deceased. He added that the same letter discloses that the said OKOYO KUNGA was the original proprietor of land parcel no. 658. In addition, the Applicant attached several photographs of what he stated to be gold mining activity on the suit property.
The Respondent’s Case
5. In response, the 1st Respondent filed a Replying Affidavit sworn by him on 7th July, 2025. He deponed that he had express authority the swear the affidavit and make representation on behalf of the 3rd, 4th, 5th and 7th defendants. The Court did not, however, see any written authority of the sort.
6. The 1st Respondent contends that the application is incompetent and fatally defective by reason of the Plaintiff not substituting the 9th Respondent who died long before the suit was filed and that no legal representative had been brought on board as provided under Order 24 Rule 4 of the Civil Procedure Rules. For this reason, he prays that the suit be struck out or dismissed with costs for have been instituted against a deceased person.
7. Further, the 1st Respondent deposed that he was the registered owner of land parcel known as WEST KASIPUL/ KONYANGO KOKAL/ 3511 while the 3rd and 4th Respondents were said to be the registered owners of land parcels WEST KASIPUL/KONYANGO KOKAL/2045 and 1691 respectively. Moreover, he deposed that the 5th Respondent was the registered owner of land parcels WEST KASIPUL/KONYANGO KOKAL/ 3508, 3513 and 3518. Lastly, the 1st Respondent deponed that the 7th Respondent was the registered owner of land parcel WEST KASIPUL/KONYANGO KOKAL /3514.
8. He annexed to his Affidavit copies of titles deeds for land parcels WEST KASIPUL/KONYANGO KOKAL /3508, 3511, 3513 and 3515 all of which were seemingly issued on 6th December 2019. The 1st defendant maintains that the 3rd, 4th, 5th and 7th Respondents as well as himself resided on their registered parcels of land wherefrom they derived a livelihood through farming.
9. Additionally, the 1st Respondent vehemently denies being involved in gold mining and maintained that the Applicant has misrepresented facts by presenting to the court photographs that were misleading since the same relate to a pit latrine digging exercise at the 1st and 5th Respondents’ land. He further deponed that gold mining requires licensing from the National Environment Management Authority, which licence he had not acquired.
10. The 1st Respondent concluded that the application is based on speculation and conjecture and amounts to abuse of the due process of the court and as such, the same should be dismissed with costs for want of merit.
11. In addition to the annexed copies of title deeds, the 1st Respondent also attached several photographs of what he termed a pit latrine digging exercise.
Evidence of Area Chief
12. Since the facts raised by the Applicant were greatly contested by the Defendants who contended, as seen below, that the activities on the land were not related to mining gold but merely digging of pit latrines, the Court sought information from a neutral source: the evidence of the Area Chief. Thus, the Court summoned the area chief to testify on this matter. He attended the Court virtually on 16/07/2025. The Chief, one Denise Owuor, stated that he had been called upon by the Court to visit the disputed area and note the activities that were ongoing or had just happened and report to the Court. He visited the suit land and found three open casts (for mining activities). The first one fell on parcel No. 3515 which parcel was occupied by one Joshuam Odhiambo. The second one was on parcel No. 3511 occupied by Dominic Guti. The third one was on parcel No. 3512 occupied by Janes Modi.
13. Regarding the open casts, he added that the 1st one was active since it had a ladder leading into it. Even the one which was on parcel No. 3511 had some evidence of mining activity going on. But the 3rd one was very dormant.
14. The area chief stated on cross examination that he concluded that mining was ongoing because the open cast holes were very deep and a lot of murram had been drawn from them and heaped on the side. He also added that heaps of murram were drawn from the deep (pits). He, however, could not estimate how deep the holes were but from his observation and the quantity of murram extracted the open casts were deep.
15. The parties decided not to submit but rely on the affidavit evidence already in Court. The Respondent’s counsel submitted orally on one sentence to the effect that the area chief could not ascertain whether the activity on the suit parcels was mining or something else.
Issues for Determination
16. After considering the prayers and content of the application very carefully, and those in the supporting affidavit and the annexures thereto as well as the 1st Respondent’s Replying Affidavit together with the annexures thereto, it is my humble view that the issues that arise for determination are:
a) Whether the application and suit should be dismissed on account of the applicant having sued the 9th Respondent who is said to have died long before the suit was instituted; and
b) If the suit is not dismissed, whether the application is merited
c) Who to bear the costs of the application
Analysis and Determination
17. I have carefully analyzed the application in its totality as well as the Replying Affidavit filed by the Respondent. At the onset, I must point out that the 1st Respondent deponed that had the express authority of the 3rd, 4th, 5th and 7th defendant to swear and affidavit and make representations on their behalf. However, the 1st defendant did not annex any written Authority to swear on behalf of the said defendant/respondents. Whereas I note that failure to annex the said Authority is not fatal (see Brownstone Agencies Limited & another v County Government of Bomet & another, Bomet High Court Petition no. E002 of 2021), in the absence of the said Authority, I would take the depositions expressed in the Replying Affidavit to be those of the 1st Respondent only, and to the extent that there be any part that draws from or purports to be on behalf of a party who has not duly authorized the deponent that part be expunged, struck out or be treated as inadmissible hearsay.
a) Whether the application and suit should be dismissed for reason of the Plaintiff suing the 9th Defendant (which is said to be deceased)
18. The 1st Defendant deponed that the Applicant herein instituted a suit against the 9th defendant whom he states died long before the suit was instituted. He maintains that the suit is fatally defective because the plaintiff/applicant did not substitute the 9th Respondent’s name with that of a legal representative from his estate pursuant to Order 24 Rule 4 of the Civil Procedure Rules 2010.
19. First of all, it is worth noting that the legal position regarding adduction of evidence is that he who alleges proves. The burden is on them to do so, unless the law specifically shifts the burden and places it on the other person. Section 107 of the Evidence Act is the relevant provision regarding that legal position.
20. Order 24 Rule 4 of the Civil Procedure Rules 2010 provides that:
(1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
21. Despite alleging that the 9th Respondent died long before the suit was filed, the 1st Respondent did not annex any evidence showing that indeed the 9th Respondent was deceased at the time the suit was filed or even afterwards. So, as things are, that fact is not proved as to render the suit either defective as a whole or in part.
22. Be that as it may, assuming that the said person died, Order 24 Rule 4 of the Civil Procedure Rules deals with cases where a party who is already a defendant dies in an existing suit dies and the suit survives him. It does not deal with a case where a suit is filed against a person who is already deceased at the time the time suit is filed. Additionally, if a party sues a wrong party, then in terms Order 1 Rule 9 of the Civil Procedure Rules that suit cannot be defeated for misjoinder. It provides that,
“No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
23. The 1st Respondent maintains that the suit was filed long after the 9th defendant died. If indeed the 9th Respondent is deceased, whether he died during or before the institution of the suit, the only part of the claim that is incompetent is that which is against him. The rest of the living (persons) must face the claims against them. The case against the deceased can be withdrawn or struck or if he died during the pendency of the suit, and the suit survives him, and he is not substituted within twelve months of the death, then the suit against him abates, and it is only the suit against him that would abate and not the whole suit.
24. Further, although the allegations about the demise of the 9th Respondent are not substantiated, I would like add, in clarification, that if that is the position, then there would be no need for substituting the 9th defendant Respondent as the courts have time and again held that a suit filed against a deceased person is a nullity and as such, not even an amendment can breathe life into the nullity. The High Court in Vicktar Maina Ngunjiri & 4 others v Attorney General & 6 others [2018] eKLR had this to say:
The estate of a deceased person may take over proceedings against him if that person were alive at the time the suit was filed. That notwithstanding, the estate must be made a party and authorized by the court through an executor or a personal representative. A formal application has to be filed to facilitate this. No grant of representation has been presented to court. In the instant case this cannot happen because the deceased died before the suit was filed and the representative of the estate has not been identified. Even if the representative were identified it is not possible to take over a nullity.
25. Lastly on this point, would the suit abate for all the Respondents had it been established that the 9th Respondent died long before the suit was instituted as alleged by the 1st respondent? I do not think so. The living Respondents are parties who, in my humble view and in relation to this application, are seeking to cling to every straw or reed as they drown in the flood that has been brought in by the applicant’s clear evidence on the issues of mining taking place. The case should and ought to proceed at the instance of the surviving defendants/respondents. This was the position of the court in Manyange (Deceased v TG (Minor suing through her mother and next friend WMG) Civil Appeal E005 of 2022[2024] KEHC 1083 (KLR) where the court cited the Indian case Pratap Chand Mehta v Chrisna Devi Meuta AIR 1988 Delhi 267 and stated as follows:
“.... if a suit is filed against a dead person then it is a nullity and we cannot join any legal representative; you cannot even join any other party, because, it is just as if no suit had been filed. On the other hand, if a suit has been filed against a number of persons one of whom happens to be dead when the proceedings were instituted, then the proceedings are not null and void but the court has to strike out the name of the party who has been wrongly joined. If the case has been instituted against a dead person and that person happened to be the only person then the proceedings are a nullity and even Order 1 Rule 10 or Order 6 Rule 17 cannot be availed of to bring about amendment.” (Emphasis added)
26. I would also hasten to add that the language of Order 24 of the Civil Procedure Rules which the 1st Respondent relies on, albeit erroneously does not anticipate that a suit should wholly terminate as against all the defendants when one defendant dies. The situation would not be different where only one of several defendants was deceased at the point time the suit was filed.
27. On the basis of the foregoing, I hold and find that the application is competent and properly before me despite the allegations that one of the defendants died before the suit was instituted.
b) Whether the application is merited
28. The prayers sought herein are for an injunction to be granted, if successful, during the pendency of the instant suit. Order 40 Rule 1 of the Civil Procure Rules, 2010 provides courts with the power to grant temporary interlocutory reliefs and is expressed as hereunder:
Order 40, Rule 1
Where in any suit it is proved by affidavit or otherwise—
a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
b) that the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.
29. The above cited legal provision is buttressed by the locus classicus case on injunctions Giella v Cassman Brown & Co Limited (1973) EA 358 where the Court of Appeal set out the conditions that must be met by an applicant so as to warrant the grant of a temporary injunction by the court. Accordingly, the court held that:
“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 be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” (Emphasis added).
30. The three requirements must all be established as was held in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR where the court held:
“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”.
31. As to what constitutes a prima facie case, the court in Mrao Ltd v First American Bank of Kenya and 2 others (2003) KLR 125, defined a prima facie case was defined in the following terms:
“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”.
32. Further, in Pius Kichirchir Kogo V Frank Kimeli Tenai [2018] eKLR, the court noted that ‘‘a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed.’’
33. The Applicant herein maintains that he was the only beneficiary of his father’s estate and annexed a letter from his area chief elaborating on the same. The chief identified the decease’s father as being the original registered proprietor of land parcel no. 658. The Applicant maintains that the respondents, in his absence, proceeded with the Succession process at a Kisii court and subsequently subdivided his father’s property thus disinheriting him.
34. The Applicant further deposed that the Respondents had begun mining gold on the respective parcels of land that they had acquired from his deceased father’s estate. This, he maintained, was despite the fact that he had filed a suit in court seeking the determination of the ownership of the said property. To prove these allegations, the Applicant annexed photographs that he maintained were a depiction of the gold mining in the said property.
35. The 1st Respondent maintained that the Respondents had been in occupation of the suit property at all material times of the suit and that have always derived their livelihood from the same land through farming. He maintained that the photographs annexed to the affidavit of the Applicant was misleading and a misrepresentation of the reality and that the same save for annexures marked the first and second photographs in annexure marked JOO2. The 1st respondent annexed several photographs in replying affidavit that he maintains depict pit latrine digging at his parcel of land as well of that of the 5th Respondent.
36. I am alive to the fact that the Applicant is not required to prove the case as though he would be expected to prove during the trial of the suit. All he needs to do at this stage is to lead evidence, which can lead this court to believe that a right may have been breached, hence the need for a rebuttal from the defendants. The Respondent’s counsel argued that the area Chief could not tell whether the activities which he saw on the three parcels of land which he termed as open (mining) casts were indeed mining activities or other. It is worth of note that the Chief was clear in his evidence that the holes dug were very deep and there was a lot of murram that had been dug out of them. This tallied with the photographic evidence that the applicant gave to the court.
37. I think that some parties underestimate the intelligence of this Court, and courts in general! They think that judges and judicial officers do not think deeply. For them to dig open casts for mining and label them as toilets just to convince the court to agree to their side of the story is to underrate the intellect of the Judge too much. Thus, this Court finds and holds that contrary to the argument by the Respondents that the activity on the parcel of land was not mining, it is too coincidental for three persons who are on three different parcels of land to commence digging of deep pit latrines at the same time, unless their families and relatives who reside with them ran into prolonged severe runny stomach crises that it would constitute a pandemic that would fill their current pit latrines at once and cause them to resort to urgent alternatives, or they intend to hold massive rallies or events that would require hundreds of thousands of people to use the ‘toilets’ at once to fill them . That would call for public health interventions for a crisis of that magnitude. Neither the Respondents nor the Area Chief or the public health department of the County or even the applicant have reported severe runny stomach issues of the residents. Even then, for that to cause urgent toilet search crises it would require the present of great masses of people in order for the people digging the said ‘toilets’ to be in need of them for reason of scarcity and inadequacy of the current ones. There is none.
38. Given the evidence presented by the Applicant as well as the evidence tendered by the are Chief, I find and hold that the Applicant has established a prima facie case.
39. On the issue of irreparable loss that may not be adequately compensated by way of damages, the courts have interpreted the same to mean that, if damages can adequately compensate the applicant of the loss sustained, then an injunction should not issue.
40. In re estate of Magdalena Kabon Sawe (deceased) Succession Cause E034 of 2023 [2024] KEHC 9228 (KLR), the court placed reliance on the Halsbury’s laws of England and noted as below:
“Where the court interferes by way of 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 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.” (emphasis added)
41. The Applicant maintains that the defendants have disinherited him of his deceased father’s estate and that the said defendants are in the process of mining gold from the said estate, which activity is likely to dissipate and degrade the land. He is apprehensive that, should he be successful in the suit, there may be nothing to inherit from his father’s estate.
42. I note that the allegation herein is that the land in question is ancestral land to which the Applicant may have sentimental ties to. At the same time if mining activities are left to thrive before the issue of ownership is determined, it will change the nature and character of the suit land permanently. Damages may not be adequate to compensate him should he be successful in his cause.
43. I associate myself with the decision of the court in re estate of Magdalena Kabon Sawe (deceased) (supra) that an injunction may also issue even where damages may compensate the applicant if the respondents’ actions are likely to destroy the subject matter of the suit. Gold mining is an activity that is likely to destroy the suit property for ever. As such, I find that the applicant is likely to suffer irreparable loss that is not capable of being compensated by way of damages.
44. Lastly, the court is enjoined to determine whether the balance of probabilities tilts in favour of the applicant. In Pius Kipchirchir Kogo (supra) the court stated that:
The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor 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.
45. Since the matter relates to ancestral land that may hold significant sentimental value to the plaintiff/applicant, failing to stop the alleged mining will have negatively impact the plaintiff/applicant more than the defendants as may destroy the suit land. accordingly, I find that balance of convenience tilts in granting an injunction in favor of the plaintiff.
46. In conclusion, I find and hold that the application succeeds. I grant an injunction in terms of prayer 3 of the application. The injunction is to last for twelve (12) months from today and is subject for extension if the parties have good reason for the application for extension. This matter shall be mentioned on 6th November, 2025 for confirmation of the filing of a formal application for joining other parties.
47. The costs of this application will be borne by the Respondents.
48. It is so ordered.
Ruling dated, signed and delivered virtually via the Teams Platform this 6th day of October, 2025.
Hon. Dr. iur Nyagaka,
JUDGE
In the presence of,
Court Assistant: Ms. Fiona Mutiva
Mr. Achillah Advocate for the Plaintiff/Applicant
Ms. Wabwire Advocate for O.H. Bunde for 1st, 3rd, 4th, 5th and 7th Respondents
'
(On whether to grant a temporary injunction at the interlocutory stage)
The applicant’s case
1. The Plaintiff/Applicant filed a Notice of Motion application dated 19th June 2025. He brought it under Certificate of Urgency on 19th June, 2025. He sought ORDERS:
a) …Spent
b) …Spent
c) THAT pending the hearing and determination of this suit, an injunction do issue restraining the respondents herein, their relatives, agents or lessees or whomsoever is acting in pursuit of a common goal with the respondents from carrying out mining activities and/or wasting in whatsoever manner the suit land known as WEST KASIPUL/KANYANGO KOKAL/1961, 2054, 3508, 3509, 3510, 3511, 3512, 3513, 3514 and 3515.
2. The application was based on a number of grounds set out on the face of it as well as the depositions in the Supporting Affidavit which was sworn the Applicant, John Owore Okoyo on 19th June 2025.
3. The applicant stated that the suit property belonged to his deceased father, one OKOYO KUNGA, who was the registered owner of the same. The parcel of land was known as WEST KASIPUL/KONYANGO KOKAL/658. He deponed further that he was the surviving beneficiary of the Estate of his deceased father. Further that the defendants, in his absence, went through or conducted a Succession process at Kisii (presumably law courts), obtained letters of administration and subsequently shared the suit land among themselves hence denying him his right to inheritance. The applicant added that he instituted the instant suit against the defendants, but during the pendency of the suit, the defendants began mining gold from the suit properties. As a consequence, he approached this court seeking injunctive reliefs against the defendants and all those associated with them who were involved in the course of interfering with the suit property.
4. The Applicant annexed a letter dated 23rd October 2020, written by the area Chief. It indicates that he was the only son of his father, OKOYO KUNGA, now deceased. He added that the same letter discloses that the said OKOYO KUNGA was the original proprietor of land parcel no. 658. In addition, the Applicant attached several photographs of what he stated to be gold mining activity on the suit property.
The Respondent’s Case
5. In response, the 1st Respondent filed a Replying Affidavit sworn by him on 7th July, 2025. He deponed that he had express authority the swear the affidavit and make representation on behalf of the 3rd, 4th, 5th and 7th defendants. The Court did not, however, see any written authority of the sort.
6. The 1st Respondent contends that the application is incompetent and fatally defective by reason of the Plaintiff not substituting the 9th Respondent who died long before the suit was filed and that no legal representative had been brought on board as provided under Order 24 Rule 4 of the Civil Procedure Rules. For this reason, he prays that the suit be struck out or dismissed with costs for have been instituted against a deceased person.
7. Further, the 1st Respondent deposed that he was the registered owner of land parcel known as WEST KASIPUL/ KONYANGO KOKAL/ 3511 while the 3rd and 4th Respondents were said to be the registered owners of land parcels WEST KASIPUL/KONYANGO KOKAL/2045 and 1691 respectively. Moreover, he deposed that the 5th Respondent was the registered owner of land parcels WEST KASIPUL/KONYANGO KOKAL/ 3508, 3513 and 3518. Lastly, the 1st Respondent deponed that the 7th Respondent was the registered owner of land parcel WEST KASIPUL/KONYANGO KOKAL /3514.
8. He annexed to his Affidavit copies of titles deeds for land parcels WEST KASIPUL/KONYANGO KOKAL /3508, 3511, 3513 and 3515 all of which were seemingly issued on 6th December 2019. The 1st defendant maintains that the 3rd, 4th, 5th and 7th Respondents as well as himself resided on their registered parcels of land wherefrom they derived a livelihood through farming.
9. Additionally, the 1st Respondent vehemently denies being involved in gold mining and maintained that the Applicant has misrepresented facts by presenting to the court photographs that were misleading since the same relate to a pit latrine digging exercise at the 1st and 5th Respondents’ land. He further deponed that gold mining requires licensing from the National Environment Management Authority, which licence he had not acquired.
10. The 1st Respondent concluded that the application is based on speculation and conjecture and amounts to abuse of the due process of the court and as such, the same should be dismissed with costs for want of merit.
11. In addition to the annexed copies of title deeds, the 1st Respondent also attached several photographs of what he termed a pit latrine digging exercise.
Evidence of Area Chief
12. Since the facts raised by the Applicant were greatly contested by the Defendants who contended, as seen below, that the activities on the land were not related to mining gold but merely digging of pit latrines, the Court sought information from a neutral source: the evidence of the Area Chief. Thus, the Court summoned the area chief to testify on this matter. He attended the Court virtually on 16/07/2025. The Chief, one Denise Owuor, stated that he had been called upon by the Court to visit the disputed area and note the activities that were ongoing or had just happened and report to the Court. He visited the suit land and found three open casts (for mining activities). The first one fell on parcel No. 3515 which parcel was occupied by one Joshuam Odhiambo. The second one was on parcel No. 3511 occupied by Dominic Guti. The third one was on parcel No. 3512 occupied by Janes Modi.
13. Regarding the open casts, he added that the 1st one was active since it had a ladder leading into it. Even the one which was on parcel No. 3511 had some evidence of mining activity going on. But the 3rd one was very dormant.
14. The area chief stated on cross examination that he concluded that mining was ongoing because the open cast holes were very deep and a lot of murram had been drawn from them and heaped on the side. He also added that heaps of murram were drawn from the deep (pits). He, however, could not estimate how deep the holes were but from his observation and the quantity of murram extracted the open casts were deep.
15. The parties decided not to submit but rely on the affidavit evidence already in Court. The Respondent’s counsel submitted orally on one sentence to the effect that the area chief could not ascertain whether the activity on the suit parcels was mining or something else.
Issues for Determination
16. After considering the prayers and content of the application very carefully, and those in the supporting affidavit and the annexures thereto as well as the 1st Respondent’s Replying Affidavit together with the annexures thereto, it is my humble view that the issues that arise for determination are:
a) Whether the application and suit should be dismissed on account of the applicant having sued the 9th Respondent who is said to have died long before the suit was instituted; and
b) If the suit is not dismissed, whether the application is merited
c) Who to bear the costs of the application
Analysis and Determination
17. I have carefully analyzed the application in its totality as well as the Replying Affidavit filed by the Respondent. At the onset, I must point out that the 1st Respondent deponed that had the express authority of the 3rd, 4th, 5th and 7th defendant to swear and affidavit and make representations on their behalf. However, the 1st defendant did not annex any written Authority to swear on behalf of the said defendant/respondents. Whereas I note that failure to annex the said Authority is not fatal (see Brownstone Agencies Limited & another v County Government of Bomet & another, Bomet High Court Petition no. E002 of 2021), in the absence of the said Authority, I would take the depositions expressed in the Replying Affidavit to be those of the 1st Respondent only, and to the extent that there be any part that draws from or purports to be on behalf of a party who has not duly authorized the deponent that part be expunged, struck out or be treated as inadmissible hearsay.
a) Whether the application and suit should be dismissed for reason of the Plaintiff suing the 9th Defendant (which is said to be deceased)
18. The 1st Defendant deponed that the Applicant herein instituted a suit against the 9th defendant whom he states died long before the suit was instituted. He maintains that the suit is fatally defective because the plaintiff/applicant did not substitute the 9th Respondent’s name with that of a legal representative from his estate pursuant to Order 24 Rule 4 of the Civil Procedure Rules 2010.
19. First of all, it is worth noting that the legal position regarding adduction of evidence is that he who alleges proves. The burden is on them to do so, unless the law specifically shifts the burden and places it on the other person. Section 107 of the Evidence Act is the relevant provision regarding that legal position.
20. Order 24 Rule 4 of the Civil Procedure Rules 2010 provides that:
(1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
21. Despite alleging that the 9th Respondent died long before the suit was filed, the 1st Respondent did not annex any evidence showing that indeed the 9th Respondent was deceased at the time the suit was filed or even afterwards. So, as things are, that fact is not proved as to render the suit either defective as a whole or in part.
22. Be that as it may, assuming that the said person died, Order 24 Rule 4 of the Civil Procedure Rules deals with cases where a party who is already a defendant dies in an existing suit dies and the suit survives him. It does not deal with a case where a suit is filed against a person who is already deceased at the time the time suit is filed. Additionally, if a party sues a wrong party, then in terms Order 1 Rule 9 of the Civil Procedure Rules that suit cannot be defeated for misjoinder. It provides that,
“No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
23. The 1st Respondent maintains that the suit was filed long after the 9th defendant died. If indeed the 9th Respondent is deceased, whether he died during or before the institution of the suit, the only part of the claim that is incompetent is that which is against him. The rest of the living (persons) must face the claims against them. The case against the deceased can be withdrawn or struck or if he died during the pendency of the suit, and the suit survives him, and he is not substituted within twelve months of the death, then the suit against him abates, and it is only the suit against him that would abate and not the whole suit.
24. Further, although the allegations about the demise of the 9th Respondent are not substantiated, I would like add, in clarification, that if that is the position, then there would be no need for substituting the 9th defendant Respondent as the courts have time and again held that a suit filed against a deceased person is a nullity and as such, not even an amendment can breathe life into the nullity. The High Court in Vicktar Maina Ngunjiri & 4 others v Attorney General & 6 others [2018] eKLR had this to say:
The estate of a deceased person may take over proceedings against him if that person were alive at the time the suit was filed. That notwithstanding, the estate must be made a party and authorized by the court through an executor or a personal representative. A formal application has to be filed to facilitate this. No grant of representation has been presented to court. In the instant case this cannot happen because the deceased died before the suit was filed and the representative of the estate has not been identified. Even if the representative were identified it is not possible to take over a nullity.
25. Lastly on this point, would the suit abate for all the Respondents had it been established that the 9th Respondent died long before the suit was instituted as alleged by the 1st respondent? I do not think so. The living Respondents are parties who, in my humble view and in relation to this application, are seeking to cling to every straw or reed as they drown in the flood that has been brought in by the applicant’s clear evidence on the issues of mining taking place. The case should and ought to proceed at the instance of the surviving defendants/respondents. This was the position of the court in Manyange (Deceased v TG (Minor suing through her mother and next friend WMG) Civil Appeal E005 of 2022[2024] KEHC 1083 (KLR) where the court cited the Indian case Pratap Chand Mehta v Chrisna Devi Meuta AIR 1988 Delhi 267 and stated as follows:
“.... if a suit is filed against a dead person then it is a nullity and we cannot join any legal representative; you cannot even join any other party, because, it is just as if no suit had been filed. On the other hand, if a suit has been filed against a number of persons one of whom happens to be dead when the proceedings were instituted, then the proceedings are not null and void but the court has to strike out the name of the party who has been wrongly joined. If the case has been instituted against a dead person and that person happened to be the only person then the proceedings are a nullity and even Order 1 Rule 10 or Order 6 Rule 17 cannot be availed of to bring about amendment.” (Emphasis added)
26. I would also hasten to add that the language of Order 24 of the Civil Procedure Rules which the 1st Respondent relies on, albeit erroneously does not anticipate that a suit should wholly terminate as against all the defendants when one defendant dies. The situation would not be different where only one of several defendants was deceased at the point time the suit was filed.
27. On the basis of the foregoing, I hold and find that the application is competent and properly before me despite the allegations that one of the defendants died before the suit was instituted.
b) Whether the application is merited
28. The prayers sought herein are for an injunction to be granted, if successful, during the pendency of the instant suit. Order 40 Rule 1 of the Civil Procure Rules, 2010 provides courts with the power to grant temporary interlocutory reliefs and is expressed as hereunder:
Order 40, Rule 1
Where in any suit it is proved by affidavit or otherwise—
a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
b) that the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.
29. The above cited legal provision is buttressed by the locus classicus case on injunctions Giella v Cassman Brown & Co Limited (1973) EA 358 where the Court of Appeal set out the conditions that must be met by an applicant so as to warrant the grant of a temporary injunction by the court. Accordingly, the court held that:
“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 be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” (Emphasis added).
30. The three requirements must all be established as was held in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR where the court held:
“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”.
31. As to what constitutes a prima facie case, the court in Mrao Ltd v First American Bank of Kenya and 2 others (2003) KLR 125, defined a prima facie case was defined in the following terms:
“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”.
32. Further, in Pius Kichirchir Kogo V Frank Kimeli Tenai [2018] eKLR, the court noted that ‘‘a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed.’’
33. The Applicant herein maintains that he was the only beneficiary of his father’s estate and annexed a letter from his area chief elaborating on the same. The chief identified the decease’s father as being the original registered proprietor of land parcel no. 658. The Applicant maintains that the respondents, in his absence, proceeded with the Succession process at a Kisii court and subsequently subdivided his father’s property thus disinheriting him.
34. The Applicant further deposed that the Respondents had begun mining gold on the respective parcels of land that they had acquired from his deceased father’s estate. This, he maintained, was despite the fact that he had filed a suit in court seeking the determination of the ownership of the said property. To prove these allegations, the Applicant annexed photographs that he maintained were a depiction of the gold mining in the said property.
35. The 1st Respondent maintained that the Respondents had been in occupation of the suit property at all material times of the suit and that have always derived their livelihood from the same land through farming. He maintained that the photographs annexed to the affidavit of the Applicant was misleading and a misrepresentation of the reality and that the same save for annexures marked the first and second photographs in annexure marked JOO2. The 1st respondent annexed several photographs in replying affidavit that he maintains depict pit latrine digging at his parcel of land as well of that of the 5th Respondent.
36. I am alive to the fact that the Applicant is not required to prove the case as though he would be expected to prove during the trial of the suit. All he needs to do at this stage is to lead evidence, which can lead this court to believe that a right may have been breached, hence the need for a rebuttal from the defendants. The Respondent’s counsel argued that the area Chief could not tell whether the activities which he saw on the three parcels of land which he termed as open (mining) casts were indeed mining activities or other. It is worth of note that the Chief was clear in his evidence that the holes dug were very deep and there was a lot of murram that had been dug out of them. This tallied with the photographic evidence that the applicant gave to the court.
37. I think that some parties underestimate the intelligence of this Court, and courts in general! They think that judges and judicial officers do not think deeply. For them to dig open casts for mining and label them as toilets just to convince the court to agree to their side of the story is to underrate the intellect of the Judge too much. Thus, this Court finds and holds that contrary to the argument by the Respondents that the activity on the parcel of land was not mining, it is too coincidental for three persons who are on three different parcels of land to commence digging of deep pit latrines at the same time, unless their families and relatives who reside with them ran into prolonged severe runny stomach crises that it would constitute a pandemic that would fill their current pit latrines at once and cause them to resort to urgent alternatives, or they intend to hold massive rallies or events that would require hundreds of thousands of people to use the ‘toilets’ at once to fill them . That would call for public health interventions for a crisis of that magnitude. Neither the Respondents nor the Area Chief or the public health department of the County or even the applicant have reported severe runny stomach issues of the residents. Even then, for that to cause urgent toilet search crises it would require the present of great masses of people in order for the people digging the said ‘toilets’ to be in need of them for reason of scarcity and inadequacy of the current ones. There is none.
38. Given the evidence presented by the Applicant as well as the evidence tendered by the are Chief, I find and hold that the Applicant has established a prima facie case.
39. On the issue of irreparable loss that may not be adequately compensated by way of damages, the courts have interpreted the same to mean that, if damages can adequately compensate the applicant of the loss sustained, then an injunction should not issue.
40. In re estate of Magdalena Kabon Sawe (deceased) Succession Cause E034 of 2023 [2024] KEHC 9228 (KLR), the court placed reliance on the Halsbury’s laws of England and noted as below:
“Where the court interferes by way of 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 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.” (emphasis added)
41. The Applicant maintains that the defendants have disinherited him of his deceased father’s estate and that the said defendants are in the process of mining gold from the said estate, which activity is likely to dissipate and degrade the land. He is apprehensive that, should he be successful in the suit, there may be nothing to inherit from his father’s estate.
42. I note that the allegation herein is that the land in question is ancestral land to which the Applicant may have sentimental ties to. At the same time if mining activities are left to thrive before the issue of ownership is determined, it will change the nature and character of the suit land permanently. Damages may not be adequate to compensate him should he be successful in his cause.
43. I associate myself with the decision of the court in re estate of Magdalena Kabon Sawe (deceased) (supra) that an injunction may also issue even where damages may compensate the applicant if the respondents’ actions are likely to destroy the subject matter of the suit. Gold mining is an activity that is likely to destroy the suit property for ever. As such, I find that the applicant is likely to suffer irreparable loss that is not capable of being compensated by way of damages.
44. Lastly, the court is enjoined to determine whether the balance of probabilities tilts in favour of the applicant. In Pius Kipchirchir Kogo (supra) the court stated that:
The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor 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.
45. Since the matter relates to ancestral land that may hold significant sentimental value to the plaintiff/applicant, failing to stop the alleged mining will have negatively impact the plaintiff/applicant more than the defendants as may destroy the suit land. accordingly, I find that balance of convenience tilts in granting an injunction in favor of the plaintiff.
46. In conclusion, I find and hold that the application succeeds. I grant an injunction in terms of prayer 3 of the application. The injunction is to last for twelve (12) months from today and is subject for extension if the parties have good reason for the application for extension. This matter shall be mentioned on 6th November, 2025 for confirmation of the filing of a formal application for joining other parties.
47. The costs of this application will be borne by the Respondents.
48. It is so ordered.
Ruling dated, signed and delivered virtually via the Teams Platform this 6th day of October, 2025.
Hon. Dr. iur Nyagaka,
JUDGE
In the presence of,
Court Assistant: Ms. Fiona Mutiva
Mr. Achillah Advocate for the Plaintiff/Applicant
Ms. Wabwire Advocate for O.H. Bunde for 1st, 3rd, 4th, 5th and 7th Respondents
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