This ruling is in respect of the 2nd Defendant/Applicant’s Notice of Motion application dated 28th April, 2025 which sought the following orders;
a. Spent.
b. Spent.
c. THAT an order of injunction be issued restraining Esther Chepngeno, Richard Gachiri Ndiritu, Naftali Maciro Waithaka & Joseph Mwangi Mbere by themselves, their agents, servants, workers and or whosever claiming under them from entering, ploughing, constructing premises and or interfering in any manner whatsoever with land parcel number DUNDORI/MUGWATHI/BLOCK 2/3787, 3788 & 3789 koelel (formally Dundori/Mugwathi/Block/2/311/ Koelel) pending the hearing and determination of this suit.
d. THAT Richard Gachiri Ndiritu, Naftali Maciro Waithaka and Joseph Mwangi Mbere be enjoined as Co-Defendants in the counter claim.
e. THAT an inhibition be registered in land parcel numbers Dundori/Mugwathi/Block 2/3787/3788 & 3789 Koelel formally Dundori/Mugwathi/Block/2/311/ Koelel) pending the inter-parties hearing of this application and determination of this suit.
f. THAT leave be granted to the Defendants to amend their counter-claim as per the draft annexed to this application.
g. THAT an order do issue for detention of Esther Chepngeno, Richard Gachiri Ndiritu, Naftali Maciro Waithaka, Joseph Mwangi Mbere and the Land Registrar Nakuru in prison for a period of six months for breach of the injunction issued by consent of the parties on 23/5/2017.
h. Costs.
The application was supported by the affidavit of ZAINAB UMAR ABDI sworn on 28th April, 2025. She stated that the suit was instituted by the Plaintiff against them over the suit parcel and that on 23rd May, 2017 by consent of the parties an order of status quo, injunction and inhibition was issued pending the hearing and determination of the suit. She stated that despite the orders in place, the Defendant, land Registrar Nakuru, Richard Gachiri Ndiritu, Naftali Maciro Waithaka, Joseph Mwangi Mbere have subdivided that land into 3 parcels. She further stated that in disobedience of the court order, the Defendant and Interested parties have taken possession of the suit parcel. She stated that there was need to enjoin the interested parties as co-Defendants in their counter-claim so as to enable the court determine the claim at once. She urged the court to find the Defendant, interested parties and the land registrar Nakuru in breach of the orders issued on 23/5/2017 and be punished.
In conclusion, she urged the court to allow the application as they stood to suffer irreparable damage that may not be compensated in monetary terms.
Response
None of the parties filed a response.
Submissions
None of the parties filed their submissions.
Analysis and determination
The Court has considered the application, and the main issue for determination is whether the application is merited. At the preliminary, it is noteworthy that the Applicant has sought numerous prayers and this court shall first deal with whether the Applicant is entitled to an order of temporary injunction and inhibition.
The principles upon which the court should grant an injunction were set out in the case of Giella V Cassman Brown & Company Ltd 1973 EA 358 as follows:
“First, the applicant must show that he has 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 damages. Thirdly, if the court is in doubt, it will decide the application on a balance of convenience.”
The Applicant contends that by consent, the parties on 23rd May, 2017 by consent of the parties an order of status quo, injunction and inhibition was issued pending the hearing and determination of the suit. She further contends that the Defendants and interested parties have taken possession of the suit property in breach of the orders in place hence the need for a temporary injunction and inhibition orders.
In the case of Mrao V First American Bank of Kenya Limited (2003) eKLR Bosire JA (as he then was) stated as follows:
“A prima facie case is one which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”
The existence of a prima facie case in favor of the plaintiff is necessary before a temporary injunction can be granted. It is this court’s view that a prima facie case has been explained to mean that a serious question is to be tried in the suit and in the event of success, if the injunction be not granted the Applicant would suffer irreparable injury. It is my view that the burden lies on the Applicant to satisfy the court through evidence that he has a prima facie case in his favor of him. It is not in dispute that the Applicant did not avail a copy of the title in her name, she however, annexed an official search in the name of Khadija Fatuma Hersi (deceased). It is this court’s view that the Applicant has not established that she is the proprietor of the suit property. It is arguable that the Applicant has unregistered rights in the property since there is no certificate of confirmation of grant in her name. In addition, it is not in dispute that there is currently no title in the Applicant’s name to prove ownership.
Having established that the Applicant has not proved a prima facie case, this court shall not belabor itself further on the two other conditions. It is my view that the Applicant having failed to prove a prima facie case she is therefore not entitled to temporary injunction orders.
The upshot of the foregoing is that the Applicant has failed to meet the requirements for grant of a temporary injunction or an order of inhibition.
The Applicant has also sought for contempt orders against Esther Chepngeno, Richard Gachiri Ndiritu, Naftali Maciro Waithaka, Joseph Mwangi Mbere and the Land Registrar Nakuru for having breached the consent order dated 23rd May, 2017.
I have perused the court record and it is not in dispute that there was no consent entered into between the parties on that day touching on the suit parcel. It is my view that the application is misplaced and this court shall decline to grant such orders. In addition, it is not in dispute that the matter has just been revived after substitution of parties and thus pending hearing and determination on merit.
Further, the Applicant has not provided evidence to show that the interested parties have an identifiable stake in the matter to warrant them being joined as co-Defendants. The upshot of the foregoing is that the application lacks merit and is therefore dismissed with no orders as to costs. Orders accordingly.
a. Spent.
b. Spent.
c. THAT an order of injunction be issued restraining Esther Chepngeno, Richard Gachiri Ndiritu, Naftali Maciro Waithaka & Joseph Mwangi Mbere by themselves, their agents, servants, workers and or whosever claiming under them from entering, ploughing, constructing premises and or interfering in any manner whatsoever with land parcel number DUNDORI/MUGWATHI/BLOCK 2/3787, 3788 & 3789 koelel (formally Dundori/Mugwathi/Block/2/311/ Koelel) pending the hearing and determination of this suit.
d. THAT Richard Gachiri Ndiritu, Naftali Maciro Waithaka and Joseph Mwangi Mbere be enjoined as Co-Defendants in the counter claim.
e. THAT an inhibition be registered in land parcel numbers Dundori/Mugwathi/Block 2/3787/3788 & 3789 Koelel formally Dundori/Mugwathi/Block/2/311/ Koelel) pending the inter-parties hearing of this application and determination of this suit.
f. THAT leave be granted to the Defendants to amend their counter-claim as per the draft annexed to this application.
g. THAT an order do issue for detention of Esther Chepngeno, Richard Gachiri Ndiritu, Naftali Maciro Waithaka, Joseph Mwangi Mbere and the Land Registrar Nakuru in prison for a period of six months for breach of the injunction issued by consent of the parties on 23/5/2017.
h. Costs.
The application was supported by the affidavit of ZAINAB UMAR ABDI sworn on 28th April, 2025. She stated that the suit was instituted by the Plaintiff against them over the suit parcel and that on 23rd May, 2017 by consent of the parties an order of status quo, injunction and inhibition was issued pending the hearing and determination of the suit. She stated that despite the orders in place, the Defendant, land Registrar Nakuru, Richard Gachiri Ndiritu, Naftali Maciro Waithaka, Joseph Mwangi Mbere have subdivided that land into 3 parcels. She further stated that in disobedience of the court order, the Defendant and Interested parties have taken possession of the suit parcel. She stated that there was need to enjoin the interested parties as co-Defendants in their counter-claim so as to enable the court determine the claim at once. She urged the court to find the Defendant, interested parties and the land registrar Nakuru in breach of the orders issued on 23/5/2017 and be punished.
In conclusion, she urged the court to allow the application as they stood to suffer irreparable damage that may not be compensated in monetary terms.
Response
None of the parties filed a response.
Submissions
None of the parties filed their submissions.
Analysis and determination
The Court has considered the application, and the main issue for determination is whether the application is merited. At the preliminary, it is noteworthy that the Applicant has sought numerous prayers and this court shall first deal with whether the Applicant is entitled to an order of temporary injunction and inhibition.
The principles upon which the court should grant an injunction were set out in the case of Giella V Cassman Brown & Company Ltd 1973 EA 358 as follows:
“First, the applicant must show that he has 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 damages. Thirdly, if the court is in doubt, it will decide the application on a balance of convenience.”
The Applicant contends that by consent, the parties on 23rd May, 2017 by consent of the parties an order of status quo, injunction and inhibition was issued pending the hearing and determination of the suit. She further contends that the Defendants and interested parties have taken possession of the suit property in breach of the orders in place hence the need for a temporary injunction and inhibition orders.
In the case of Mrao V First American Bank of Kenya Limited (2003) eKLR Bosire JA (as he then was) stated as follows:
“A prima facie case is one which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”
The existence of a prima facie case in favor of the plaintiff is necessary before a temporary injunction can be granted. It is this court’s view that a prima facie case has been explained to mean that a serious question is to be tried in the suit and in the event of success, if the injunction be not granted the Applicant would suffer irreparable injury. It is my view that the burden lies on the Applicant to satisfy the court through evidence that he has a prima facie case in his favor of him. It is not in dispute that the Applicant did not avail a copy of the title in her name, she however, annexed an official search in the name of Khadija Fatuma Hersi (deceased). It is this court’s view that the Applicant has not established that she is the proprietor of the suit property. It is arguable that the Applicant has unregistered rights in the property since there is no certificate of confirmation of grant in her name. In addition, it is not in dispute that there is currently no title in the Applicant’s name to prove ownership.
Having established that the Applicant has not proved a prima facie case, this court shall not belabor itself further on the two other conditions. It is my view that the Applicant having failed to prove a prima facie case she is therefore not entitled to temporary injunction orders.
The upshot of the foregoing is that the Applicant has failed to meet the requirements for grant of a temporary injunction or an order of inhibition.
The Applicant has also sought for contempt orders against Esther Chepngeno, Richard Gachiri Ndiritu, Naftali Maciro Waithaka, Joseph Mwangi Mbere and the Land Registrar Nakuru for having breached the consent order dated 23rd May, 2017.
I have perused the court record and it is not in dispute that there was no consent entered into between the parties on that day touching on the suit parcel. It is my view that the application is misplaced and this court shall decline to grant such orders. In addition, it is not in dispute that the matter has just been revived after substitution of parties and thus pending hearing and determination on merit.
Further, the Applicant has not provided evidence to show that the interested parties have an identifiable stake in the matter to warrant them being joined as co-Defendants. The upshot of the foregoing is that the application lacks merit and is therefore dismissed with no orders as to costs. Orders accordingly.