I. Introduction
1. What is before this Honourable Court for its determination is the Notice of Motion application dated 11th December, 2024 by Phillip Odhiambo, the 5th Defendant/Applicant herein. It was brought pursuant to the provisions of Order 40 Rule 1 and 2 of the Civil Procedure Rules, 2010, Sections 1A,1B and 3A of the Civil Procedure Act, Cap. 21 and all other enabling provisions of the law.
2. Upon service, the application was opposed by grounds of opposition by the 1st 2nd and 3rd Defendants dated 22nd January 2025 and a Replying Affidavit dated 6th February 2025 sworn by the 2nd Defendant Mohamed Rama Mwabaruwa.
II. The 5th Defendant/Applicant’s case
3. The 5th Defendant/Applicant sought for the following orders before court: -
a) Spent.
b) That pending the inter partes hearing of this application an order be and is hereby issued that all rental income collected from property known as KWALE/UKUNDA S.S/620 [hereinafter referred to as the suit property] be deposited with this honourable court or in a joint interest earning account held by the advocates of the parties herein.
c) That pending the hearing and determination of the main suit an order be and is hereby issued that all rental income collected from the property known as KWALE/UKUNDA S.S/620[hereinafter referred to as the suit property] be deposited with this honourable court or in a joint interest earning account held by the Advocates of the parties herein.
d) That pending the interpartes hearing of the main suit an order be and is hereby issued that all Respondents, their agents, servants or anyone acting under their authority be restrained from interfering with the said rental collection pending the hearing and determination of the main suit.
e) That the honourable court issues any further or alternative orders it deems just and equitable in the circumstances to safeguard the Applicant’s proprietary rights
f) That costs of this application be provided for.
4. The application was premised upon grounds, testimonial facts and the averments made out under the 13 Paragraphed Supporting affidavit of PHILIP ODHIAMBO, the Applicant herein. He averred as follows:-
a) He was the bona fide legal owner of all that parcel of land known as KWALE/UKUNDA S.S/620 (Hereinafter referred to as “The Suit Property”) having purchased it as an innocent purchaser for value without any notice of any competing claims.
b) The suit property comprised of five commercial shops at the frontal area facing the Likoni -Lunga Lunga road that each raised rental income of a sum of Kenya Shillings Six Thousand (Kshs. 6,000/-)
c) The Applicant stated that he had been unlawfully excluded from exercising his proprietary rights over the suit property from the 1st 2nd and 3rd Plaintiffs/Respondents who had assumed management and were unjustly collecting rent.
d) On 26th September, 2024, the court at the hearing of the application dated 11th June 2024 by the 1st, 2nd, and 3rd Plaintiffs/Respondents for the maintenance of status quo addressed the issue of rental income but did not issue explicit directions on it in its Ruling leaving the matter unresolved and causing prejudice to the Applicant.
e) Unless the orders issued were granted the Applicant was bound to suffer irreparable harm and damage due to deprivation of collection of the rental income.
f) The Applicant had a right to peaceful enjoyment, possession and economic benefit from the suit property as guaranteed under the Constitution of Kenya 2010.
g) The preservation of the rental income through deposit in court or a joint interest earning account would ensure that neither of the parties would benefit from the ongoing dispute and maintain fairness.
h) It would be in the interest of justice to allow the application as sought inorder to maintain justice and fairness.
III. The Respondents case
5. The application was opposed by grounds of opposition by the 1st 2nd and 3rd Respondents. It was dated 22nd January 2025 and raised the following grounds that:-
a) The instant application is belated, ill conceived, misinformed and tainted with mala fides for the reasons that:-
(i). It sought orders that were untenable in the circumstances of this case
i. It was vexatious and never met the threshold requirements for grant of the orders sought.
ii. It was bad in law an abuse of court process in light of the rules of practice and procedure
iii. It bore grounds not supported by any facts as deponed to in the supporting affidavit
iv. It was fatally defective and a waste of courts time
v. The notice of motion application herein was an afterthought as the subject application had already been dealt with as parties have already filed their submissions pending ruling
vi. The shops/business premises in question belonging to the Plaintiff’s family and they were not rented to anybody there was no income from them as they were the means of living and livelihood for the Plaintiffs 1st 2nd and 3rd Respondents
vii. The application was therefore grossly incompetent, fatally defective, frivolous, vexatious wholly unmerited and ought to be struck out ab initio for being an abuse of the court process.
viii. Therefore only in the interest of justice that the defendants said application be dismissed with costs to the Plaintiffs/1st to 3rd Respondents.
b). The application was further opposed by a Replying Affidavit sworn by the 2nd Plaintiff/Respondent. It was dated 6th February 2025. It was deposed as here below that; -
a. The Applicant never had any legal/beneficial rights whatsoever over the suit property as he did not acquire good title during alleged purchase
b. The shops mentioned were not rented to anyone but were being used by the Respondents themselves as a means of livelihood, the allegations that rent was being collected was thus misleading.
c. The applicant did not have any legal right or basis to take over the management of the suit property unless the court made a finding on the issue of proprietary rights.
d. The court had already dealt with the preliminary issues in the matter and granted status quo orders on 19th November 2024. What was left was the issue of proprietary rights which was yet to be dealt with.
e. The claim for financial loss by the applicant was thus misplaced as he could not claim the same over property he never owned in the first instance.
f. Further that the applicant had not made any proof of loss incurred in construction or maintenance of the shop and could thus not claim any loss as alleged.
g. The application was termed as being grossly incompetent, fatally defective and unmerited and the court was urged to strike the same out for being an abuse of the court process.
h. The court was urged to dismiss the application with costs.
IV. The further affidavit by the 5th Defendant/Applicant
6. In response to the averments raised in the grounds of opposition and the Replying Affidavit by the Respondents, the applicant filed a further affidavit sworn on 12th February 2025. The contents thereof were as here below that:-
a. The Replying affidavit was extremely speculative and unsupported by credible evidence. Thus, it was misleading the court in abid to frustrate the applicants legitimate claim over the suit property.
b. The Applicant was the current registered owner of the suit property having purchased the same and issued with a title deed in the year 2013.
c. The Applicants status as an innocent purchaser for value was protected by the provision of the Land Registration Act which provided that a certificate of title was prima facie evidence of ownership of property.
d. The Respondents had in their reply failed to annexe any evidence towards confirming that they were in ownership of the property and which included utility bills, business licences and proof of payment of land rates.
e. The occupation of the shops by the Respondents was thus illegal and unauthorised by the legitimate owner who was being excluded from rent collection and which action was thus unjustly enriching the Respondents herein.
f. It would be in the interest of justice for the Respondents to be ordered to deposit all the rental income from the shops to the court and further to vary and/ or set aside the status quo orders to allow fairness and justice to prevail.
V. Submissions
7. On 17th December 2024 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 11th December 2024 be disposed of by way of written submissions. Pursuant to that, both the Applicant and Respondents obliged. Hence, the Honourable Court reserved a date for delivering of the Ruling on notice accordingly.
A. The Written Submission by the 5th Defendant /Applicant
8. The Defendant/Applicant through the Law firm of Messrs. Okoth Ombache & Associates Advocates filed their written submissions dated 3rd March, 2025. Mr. Ombache Advocate commenced his submission by stating that the only issue for determination was whether the Defendant/Applicant had made out a case for orders for preservation of rental income from the suit property. It was submitted that the provisions of Order 40 of the Civil Procedure Rules would be relied on.
9. On whether a prima facie case had been established. The Counsel submitted that the applicant was the lawful registered owner of the suit property and the same was evidenced by a copy of the title deed. Resultantly, he was the an indefeasible owner of the property and thus established a prima facie case.
10. It was submitted that the Respondents actions amounted to unlawful exclusion and unjust enrichment, that they had taken over the suit property and were collecting rent to the detriment of the Applicant who was the lawful owner to the property.
11. On irreparable harm. The Counsel argued that the Applicant was deprived of a sum of Kenya Shillings Thirty Thousand (Kshs. 30,000/-) monthly rental income from the shops on the suit property. There was the risk of dissipation as a result of the Respondent’s actions. The rental income could not be recovered after dissipation.
12. According to the Learned Counsel, the balance of convenience automatically titled towards allowing the applicants action.
13. The Learned Counsel asserted that the issue of the status quo earlier issued only addressed the physical possession and not the rental income. According to him, therefore, the issue of rental income would be considered by the court at this point. The Respondents were accused of perjury with regard to occupation and use of the suit properties and the court was asked to punish them for the same.
14. In the long run, the Applicant urged the Honourable Court to allow the application as prayed.
B. The Written Submissions by 1st 2nd and 3rd Plaintiffs/Respondents
15. The Law firm of Messrs. Ogunah & Associates Advocates filed written submissions dated 3rd March 2025 on behalf of the 1st 2nd and 3rd Plaintiffs/Respondents. M/s. Ogunah Advocate commenced the submissions by providing the Honourable Court with a brief background of the matter herein. The Learned Counsel stated that the notice of motion application dated 11th December 2024 seeking the afore stated reliefs and which was filed under a certificate of Urgency was vigorously opposed by the Respondents herein.
16. The Learned Counsel identified one main issue for determination being whether the said notice of motion application was merited. It was submitted that the application was to fail for two main reasons being;
a. The Applicant was indirectly seeking to have Orders Issued by the Honourable Court on 19th November, 2024 amended/altered without filing the correct Application for Review/vary and/or Setting aside as per the provision of Order 45 Rule 1 of the Civil Procedure Rule, 2010.
b. There was an existing interim Orders for maintaining STATUS QUO, the said Order were issued by Judge Dena and which had not been set side/reviewed and /or Varied, neither had the Applicant Appealed against by either Party.
17. According to the Respondents, the application was disguised as one for injunction but in the real sense it was more intended on setting aside the status quo orders which on 19th November, 2024 had been issued by Judge Dena who upon considering all factors involved. The 5th Defendant/Applicant was determined on merely wasting the Court’s time. Thus, the application was not merited as it did not meet the threshold set for review pursuant to the provisions of section 80 of the Civil Procedure Act, Cap. 21 and Order 45 of the Civil Procedure Rules, 2010.
18. It was submitted that despite claims of ownership of the suit property, the title deed held by the applicant was defective and he was infact not in occupation of the suit property. That issue of ownership of the suit property were pending determination before the court and as such no determination would be made over the rent without first establishing ownership.
19. Further that the Applicant had not demonstrated to court how he purchased the suit property as there was no agreement attached or mode of transfer to his name. He had failed to prove that he contributed to the construction of the shops he alleged to be generating a rental income. Indeed, the shops were actually an extension of the Plaintiff’s residential place and were used by them as livelihood. There was no rental income being generated at all.
20. Equally, the Applicant confirmed that he had never had possession of the suit land albeit holding the defective title deed. Therefore, the Applicant would never be allowed to collect rental income taking that his rightful ownership to the suit property was being challenged. His evidence fell short of what was stipulated under the provision of Section 107 of the Evidence Act, Cap. 80 and no minding damage or loss had been demonstrated. The 5th Defendant/Applicant had a duty to demonstrate how he shall suffer loss or damage if the orders issued earlier were not vacated. As long as the status quo orders had not been set aside then, it should be in place. The court was urged to disallow the application as prayed.
VI. Analysis and Determination
21. I have carefully read and considered the pleadings herein the written submissions, the cited authorities and the relevant made by the by the Learned Counsels, the provisions of the Constitution of Kenya, 2010 and the statures.
22. In order to arrive at an informed, reasonable and fair decision, the Honourable Court has crafted three (3) issues for its determination. These are:-
a) Whether the Notice of Motion application dated 11th December 2024 by the 5th Defendant/Applicant has any merit.
b) Whether the parties herein are entitled to the reliefs sought
c) Who will bear the Costs of Notice of Motion application 11th December 2024
ISSUE No. A). Whether the Notice of Motion application dated 11th December 2024 by the 5th Defendant/Applicant has any merit.
23. Under this Sub – heading, the Honourable Court will be critically examining the main substratum of the application instituted by the 5th Defendant/Applicant. In a nutshell the Applicant has sought for the following relief:-
“That pending the inter partes hearing of this application an order be and is hereby issued that all rental income collected from property known as KWALE/UKUNDA S.S/620 [hereinafter referred to as the suit property] be deposited with this honourable court or in a joint interest earning account held by the advocates of the parties herein.…….”
24. In simple terms, the Applicant seeks to be granted injunctive orders compelling the Respondents to be depositing rental income collected from the suit property with the Honourable Court. Legally speaking, the requisite jurisdiction to grant an order of injunction is governed under the provision of Section 13 (7) of the Environment and Land Court Act NO. 19 of 2011 which provides that:-
“In the exercise of its jurisdiction under this Act, the Court shall have the power to make any order and grant any relief as the Court deems fit and just, including—(a)interim or permanent preservation orders including injunctions;
25. It is now trite law that the guiding principles for the grant of orders of temporary injunction are well settled and are set out in “the Classicus Locus” case of: “Giella –Versus - Cassman Brown (1973) EA 358. This positon has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of: “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others CA No. 77 of 2012 (2014) eKLR” where the Court of Appeal held that:
“In an interlocutory injunction application, the Applicant has to satisfy the triple requirements to:-
a. establishes his case only at a prima facie level,
b. demonstrate irreparable injury if a temporary injunction is not granted and
c. ally any doubts as to (b) 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.”
26. Consequently, it is imperative that the Applicant ought to, first, establish a prima facie case. The Applicant stated that he was the registered proprietor of the suit property having legally purchased the same and issued with a copy of a title deed.
27. In the case of “MRAO Limited –Versus - First American Bank of Kenya Limited (2003) eKLR”, the Court of Appeal gave a determination on a prima facie case. The court stated that: “……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.”
28. The fact that the suit property is registered in the names of the Applicant is not disputed. However what is in dispute is the manner in which such registration was made to the applicant. The title is termed illegal by the Respondents who maintain that the issue of proprietary rights to the suit property is still pending before this court. I have critically perused the filed Plaint in the suit, indeed the gist of the matter is on ownership of the suit property.
29. Based on the reasoning made herein, it rather evident that the application by the Applicant cannot succeed.
ISSUE No. b). Whether the parties are entitled to the reliefs sought
30. Under this Sub – heading, it will be rather straight forward to determine whether the parties were entitled to the reliefs sought arising from the conclusion made hereinabove. The Applicant maintains that in the pendency of the suit, the Respondents cannot continue to benefit from the suit property in terms of rent collection from the shops that are on the suit property. The Applicant has alleged that the property houses several shops that generate a monthly income of a sum of Kenya Shillings Thirty Thousand (Kshs. 30,000/-). Therefore, from the collected rental it should be deposited with the Honourable Court.
31. Critically speaking, I take cognisance of the fact that there has been no empirical documentary evidence to confirm that indeed the shops have been rented out. The Respondents on the other hand state that they are the ones in occupation of the suit property which they term as home. That they are the ones in occupation and use of the said shops and which are are not an income generating investment.
32. From the above, I am not persuaded at this early stage of the proceedings, that a prima facie case has been established. With no evidence of the suit property housing rental premises and which I maintain was upon the Applicant to prove, the orders sought cannot be granted. Further, the status quo orders issued have not been set aside as no formal application/ has been made to discharge the same. in the circumstance, it will be proper that the same remain in place as the Respondents are in occupation of the property and the court is apprehensive that any orders to change the same might lead to an unintended eviction which will obviously lead to a breach in peace.
33. Therefore, as the Applicant has failed to demonstrate a prima facie case, the question of whether there is irreparable injury or the balance of convenience becomes moot as an irreparable injury can only be predicated on a prima facie case.
34. The upshot is that I find no merit in the application dated 11th December 2024.
ISSUE No. b). Who will bear the Costs of the Notice of Motion application dated 11th December 2024
35. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means the outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the case of: “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise.
36. In the present case, the Honourable Court elects to have the costs awarded to the 1st 2nd and 3rd Plaintiffs/Respondents.
VII. Conclusion and disposition
37. Consequently, having conducted an in-depth analysis of the framed issues herein, the Honourable Court, based on the Principles of Preponderance of Probabilities and the balance of convenience, finds the 5th Defendant/Applicant has failed to establish its case at this stage. Hence, I proceed to make the following orders: -
a) THAT the Notice of Motion application dated 11th December 2024 be and is hereby found to lack merit and hence dismissed.
b) THAT the matter to be mentioned on 29th September, 2025, for the purpose of conducting Pre – trial conference pursuant to the provisions of Order 11 of the Civil Procedure Rules, 2010.
c) THAT costs of the application to be awarded to the 1st, 2nd & 3rd Plaintiffs/Respondents.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO–SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ………20TH …….. DAY OF ………..JUNE ………….2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Ombache, Advocate for the 1st & 2nd Defendants/Applicants.
c) No appearance for the Plaintiffs; 3nd, 4th, 5th & 6th Defendants/Respondents.
1. What is before this Honourable Court for its determination is the Notice of Motion application dated 11th December, 2024 by Phillip Odhiambo, the 5th Defendant/Applicant herein. It was brought pursuant to the provisions of Order 40 Rule 1 and 2 of the Civil Procedure Rules, 2010, Sections 1A,1B and 3A of the Civil Procedure Act, Cap. 21 and all other enabling provisions of the law.
2. Upon service, the application was opposed by grounds of opposition by the 1st 2nd and 3rd Defendants dated 22nd January 2025 and a Replying Affidavit dated 6th February 2025 sworn by the 2nd Defendant Mohamed Rama Mwabaruwa.
II. The 5th Defendant/Applicant’s case
3. The 5th Defendant/Applicant sought for the following orders before court: -
a) Spent.
b) That pending the inter partes hearing of this application an order be and is hereby issued that all rental income collected from property known as KWALE/UKUNDA S.S/620 [hereinafter referred to as the suit property] be deposited with this honourable court or in a joint interest earning account held by the advocates of the parties herein.
c) That pending the hearing and determination of the main suit an order be and is hereby issued that all rental income collected from the property known as KWALE/UKUNDA S.S/620[hereinafter referred to as the suit property] be deposited with this honourable court or in a joint interest earning account held by the Advocates of the parties herein.
d) That pending the interpartes hearing of the main suit an order be and is hereby issued that all Respondents, their agents, servants or anyone acting under their authority be restrained from interfering with the said rental collection pending the hearing and determination of the main suit.
e) That the honourable court issues any further or alternative orders it deems just and equitable in the circumstances to safeguard the Applicant’s proprietary rights
f) That costs of this application be provided for.
4. The application was premised upon grounds, testimonial facts and the averments made out under the 13 Paragraphed Supporting affidavit of PHILIP ODHIAMBO, the Applicant herein. He averred as follows:-
a) He was the bona fide legal owner of all that parcel of land known as KWALE/UKUNDA S.S/620 (Hereinafter referred to as “The Suit Property”) having purchased it as an innocent purchaser for value without any notice of any competing claims.
b) The suit property comprised of five commercial shops at the frontal area facing the Likoni -Lunga Lunga road that each raised rental income of a sum of Kenya Shillings Six Thousand (Kshs. 6,000/-)
c) The Applicant stated that he had been unlawfully excluded from exercising his proprietary rights over the suit property from the 1st 2nd and 3rd Plaintiffs/Respondents who had assumed management and were unjustly collecting rent.
d) On 26th September, 2024, the court at the hearing of the application dated 11th June 2024 by the 1st, 2nd, and 3rd Plaintiffs/Respondents for the maintenance of status quo addressed the issue of rental income but did not issue explicit directions on it in its Ruling leaving the matter unresolved and causing prejudice to the Applicant.
e) Unless the orders issued were granted the Applicant was bound to suffer irreparable harm and damage due to deprivation of collection of the rental income.
f) The Applicant had a right to peaceful enjoyment, possession and economic benefit from the suit property as guaranteed under the Constitution of Kenya 2010.
g) The preservation of the rental income through deposit in court or a joint interest earning account would ensure that neither of the parties would benefit from the ongoing dispute and maintain fairness.
h) It would be in the interest of justice to allow the application as sought inorder to maintain justice and fairness.
III. The Respondents case
5. The application was opposed by grounds of opposition by the 1st 2nd and 3rd Respondents. It was dated 22nd January 2025 and raised the following grounds that:-
a) The instant application is belated, ill conceived, misinformed and tainted with mala fides for the reasons that:-
(i). It sought orders that were untenable in the circumstances of this case
i. It was vexatious and never met the threshold requirements for grant of the orders sought.
ii. It was bad in law an abuse of court process in light of the rules of practice and procedure
iii. It bore grounds not supported by any facts as deponed to in the supporting affidavit
iv. It was fatally defective and a waste of courts time
v. The notice of motion application herein was an afterthought as the subject application had already been dealt with as parties have already filed their submissions pending ruling
vi. The shops/business premises in question belonging to the Plaintiff’s family and they were not rented to anybody there was no income from them as they were the means of living and livelihood for the Plaintiffs 1st 2nd and 3rd Respondents
vii. The application was therefore grossly incompetent, fatally defective, frivolous, vexatious wholly unmerited and ought to be struck out ab initio for being an abuse of the court process.
viii. Therefore only in the interest of justice that the defendants said application be dismissed with costs to the Plaintiffs/1st to 3rd Respondents.
b). The application was further opposed by a Replying Affidavit sworn by the 2nd Plaintiff/Respondent. It was dated 6th February 2025. It was deposed as here below that; -
a. The Applicant never had any legal/beneficial rights whatsoever over the suit property as he did not acquire good title during alleged purchase
b. The shops mentioned were not rented to anyone but were being used by the Respondents themselves as a means of livelihood, the allegations that rent was being collected was thus misleading.
c. The applicant did not have any legal right or basis to take over the management of the suit property unless the court made a finding on the issue of proprietary rights.
d. The court had already dealt with the preliminary issues in the matter and granted status quo orders on 19th November 2024. What was left was the issue of proprietary rights which was yet to be dealt with.
e. The claim for financial loss by the applicant was thus misplaced as he could not claim the same over property he never owned in the first instance.
f. Further that the applicant had not made any proof of loss incurred in construction or maintenance of the shop and could thus not claim any loss as alleged.
g. The application was termed as being grossly incompetent, fatally defective and unmerited and the court was urged to strike the same out for being an abuse of the court process.
h. The court was urged to dismiss the application with costs.
IV. The further affidavit by the 5th Defendant/Applicant
6. In response to the averments raised in the grounds of opposition and the Replying Affidavit by the Respondents, the applicant filed a further affidavit sworn on 12th February 2025. The contents thereof were as here below that:-
a. The Replying affidavit was extremely speculative and unsupported by credible evidence. Thus, it was misleading the court in abid to frustrate the applicants legitimate claim over the suit property.
b. The Applicant was the current registered owner of the suit property having purchased the same and issued with a title deed in the year 2013.
c. The Applicants status as an innocent purchaser for value was protected by the provision of the Land Registration Act which provided that a certificate of title was prima facie evidence of ownership of property.
d. The Respondents had in their reply failed to annexe any evidence towards confirming that they were in ownership of the property and which included utility bills, business licences and proof of payment of land rates.
e. The occupation of the shops by the Respondents was thus illegal and unauthorised by the legitimate owner who was being excluded from rent collection and which action was thus unjustly enriching the Respondents herein.
f. It would be in the interest of justice for the Respondents to be ordered to deposit all the rental income from the shops to the court and further to vary and/ or set aside the status quo orders to allow fairness and justice to prevail.
V. Submissions
7. On 17th December 2024 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 11th December 2024 be disposed of by way of written submissions. Pursuant to that, both the Applicant and Respondents obliged. Hence, the Honourable Court reserved a date for delivering of the Ruling on notice accordingly.
A. The Written Submission by the 5th Defendant /Applicant
8. The Defendant/Applicant through the Law firm of Messrs. Okoth Ombache & Associates Advocates filed their written submissions dated 3rd March, 2025. Mr. Ombache Advocate commenced his submission by stating that the only issue for determination was whether the Defendant/Applicant had made out a case for orders for preservation of rental income from the suit property. It was submitted that the provisions of Order 40 of the Civil Procedure Rules would be relied on.
9. On whether a prima facie case had been established. The Counsel submitted that the applicant was the lawful registered owner of the suit property and the same was evidenced by a copy of the title deed. Resultantly, he was the an indefeasible owner of the property and thus established a prima facie case.
10. It was submitted that the Respondents actions amounted to unlawful exclusion and unjust enrichment, that they had taken over the suit property and were collecting rent to the detriment of the Applicant who was the lawful owner to the property.
11. On irreparable harm. The Counsel argued that the Applicant was deprived of a sum of Kenya Shillings Thirty Thousand (Kshs. 30,000/-) monthly rental income from the shops on the suit property. There was the risk of dissipation as a result of the Respondent’s actions. The rental income could not be recovered after dissipation.
12. According to the Learned Counsel, the balance of convenience automatically titled towards allowing the applicants action.
13. The Learned Counsel asserted that the issue of the status quo earlier issued only addressed the physical possession and not the rental income. According to him, therefore, the issue of rental income would be considered by the court at this point. The Respondents were accused of perjury with regard to occupation and use of the suit properties and the court was asked to punish them for the same.
14. In the long run, the Applicant urged the Honourable Court to allow the application as prayed.
B. The Written Submissions by 1st 2nd and 3rd Plaintiffs/Respondents
15. The Law firm of Messrs. Ogunah & Associates Advocates filed written submissions dated 3rd March 2025 on behalf of the 1st 2nd and 3rd Plaintiffs/Respondents. M/s. Ogunah Advocate commenced the submissions by providing the Honourable Court with a brief background of the matter herein. The Learned Counsel stated that the notice of motion application dated 11th December 2024 seeking the afore stated reliefs and which was filed under a certificate of Urgency was vigorously opposed by the Respondents herein.
16. The Learned Counsel identified one main issue for determination being whether the said notice of motion application was merited. It was submitted that the application was to fail for two main reasons being;
a. The Applicant was indirectly seeking to have Orders Issued by the Honourable Court on 19th November, 2024 amended/altered without filing the correct Application for Review/vary and/or Setting aside as per the provision of Order 45 Rule 1 of the Civil Procedure Rule, 2010.
b. There was an existing interim Orders for maintaining STATUS QUO, the said Order were issued by Judge Dena and which had not been set side/reviewed and /or Varied, neither had the Applicant Appealed against by either Party.
17. According to the Respondents, the application was disguised as one for injunction but in the real sense it was more intended on setting aside the status quo orders which on 19th November, 2024 had been issued by Judge Dena who upon considering all factors involved. The 5th Defendant/Applicant was determined on merely wasting the Court’s time. Thus, the application was not merited as it did not meet the threshold set for review pursuant to the provisions of section 80 of the Civil Procedure Act, Cap. 21 and Order 45 of the Civil Procedure Rules, 2010.
18. It was submitted that despite claims of ownership of the suit property, the title deed held by the applicant was defective and he was infact not in occupation of the suit property. That issue of ownership of the suit property were pending determination before the court and as such no determination would be made over the rent without first establishing ownership.
19. Further that the Applicant had not demonstrated to court how he purchased the suit property as there was no agreement attached or mode of transfer to his name. He had failed to prove that he contributed to the construction of the shops he alleged to be generating a rental income. Indeed, the shops were actually an extension of the Plaintiff’s residential place and were used by them as livelihood. There was no rental income being generated at all.
20. Equally, the Applicant confirmed that he had never had possession of the suit land albeit holding the defective title deed. Therefore, the Applicant would never be allowed to collect rental income taking that his rightful ownership to the suit property was being challenged. His evidence fell short of what was stipulated under the provision of Section 107 of the Evidence Act, Cap. 80 and no minding damage or loss had been demonstrated. The 5th Defendant/Applicant had a duty to demonstrate how he shall suffer loss or damage if the orders issued earlier were not vacated. As long as the status quo orders had not been set aside then, it should be in place. The court was urged to disallow the application as prayed.
VI. Analysis and Determination
21. I have carefully read and considered the pleadings herein the written submissions, the cited authorities and the relevant made by the by the Learned Counsels, the provisions of the Constitution of Kenya, 2010 and the statures.
22. In order to arrive at an informed, reasonable and fair decision, the Honourable Court has crafted three (3) issues for its determination. These are:-
a) Whether the Notice of Motion application dated 11th December 2024 by the 5th Defendant/Applicant has any merit.
b) Whether the parties herein are entitled to the reliefs sought
c) Who will bear the Costs of Notice of Motion application 11th December 2024
ISSUE No. A). Whether the Notice of Motion application dated 11th December 2024 by the 5th Defendant/Applicant has any merit.
23. Under this Sub – heading, the Honourable Court will be critically examining the main substratum of the application instituted by the 5th Defendant/Applicant. In a nutshell the Applicant has sought for the following relief:-
“That pending the inter partes hearing of this application an order be and is hereby issued that all rental income collected from property known as KWALE/UKUNDA S.S/620 [hereinafter referred to as the suit property] be deposited with this honourable court or in a joint interest earning account held by the advocates of the parties herein.…….”
24. In simple terms, the Applicant seeks to be granted injunctive orders compelling the Respondents to be depositing rental income collected from the suit property with the Honourable Court. Legally speaking, the requisite jurisdiction to grant an order of injunction is governed under the provision of Section 13 (7) of the Environment and Land Court Act NO. 19 of 2011 which provides that:-
“In the exercise of its jurisdiction under this Act, the Court shall have the power to make any order and grant any relief as the Court deems fit and just, including—(a)interim or permanent preservation orders including injunctions;
25. It is now trite law that the guiding principles for the grant of orders of temporary injunction are well settled and are set out in “the Classicus Locus” case of: “Giella –Versus - Cassman Brown (1973) EA 358. This positon has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of: “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others CA No. 77 of 2012 (2014) eKLR” where the Court of Appeal held that:
“In an interlocutory injunction application, the Applicant has to satisfy the triple requirements to:-
a. establishes his case only at a prima facie level,
b. demonstrate irreparable injury if a temporary injunction is not granted and
c. ally any doubts as to (b) 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.”
26. Consequently, it is imperative that the Applicant ought to, first, establish a prima facie case. The Applicant stated that he was the registered proprietor of the suit property having legally purchased the same and issued with a copy of a title deed.
27. In the case of “MRAO Limited –Versus - First American Bank of Kenya Limited (2003) eKLR”, the Court of Appeal gave a determination on a prima facie case. The court stated that: “……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.”
28. The fact that the suit property is registered in the names of the Applicant is not disputed. However what is in dispute is the manner in which such registration was made to the applicant. The title is termed illegal by the Respondents who maintain that the issue of proprietary rights to the suit property is still pending before this court. I have critically perused the filed Plaint in the suit, indeed the gist of the matter is on ownership of the suit property.
29. Based on the reasoning made herein, it rather evident that the application by the Applicant cannot succeed.
ISSUE No. b). Whether the parties are entitled to the reliefs sought
30. Under this Sub – heading, it will be rather straight forward to determine whether the parties were entitled to the reliefs sought arising from the conclusion made hereinabove. The Applicant maintains that in the pendency of the suit, the Respondents cannot continue to benefit from the suit property in terms of rent collection from the shops that are on the suit property. The Applicant has alleged that the property houses several shops that generate a monthly income of a sum of Kenya Shillings Thirty Thousand (Kshs. 30,000/-). Therefore, from the collected rental it should be deposited with the Honourable Court.
31. Critically speaking, I take cognisance of the fact that there has been no empirical documentary evidence to confirm that indeed the shops have been rented out. The Respondents on the other hand state that they are the ones in occupation of the suit property which they term as home. That they are the ones in occupation and use of the said shops and which are are not an income generating investment.
32. From the above, I am not persuaded at this early stage of the proceedings, that a prima facie case has been established. With no evidence of the suit property housing rental premises and which I maintain was upon the Applicant to prove, the orders sought cannot be granted. Further, the status quo orders issued have not been set aside as no formal application/ has been made to discharge the same. in the circumstance, it will be proper that the same remain in place as the Respondents are in occupation of the property and the court is apprehensive that any orders to change the same might lead to an unintended eviction which will obviously lead to a breach in peace.
33. Therefore, as the Applicant has failed to demonstrate a prima facie case, the question of whether there is irreparable injury or the balance of convenience becomes moot as an irreparable injury can only be predicated on a prima facie case.
34. The upshot is that I find no merit in the application dated 11th December 2024.
ISSUE No. b). Who will bear the Costs of the Notice of Motion application dated 11th December 2024
35. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means the outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the case of: “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise.
36. In the present case, the Honourable Court elects to have the costs awarded to the 1st 2nd and 3rd Plaintiffs/Respondents.
VII. Conclusion and disposition
37. Consequently, having conducted an in-depth analysis of the framed issues herein, the Honourable Court, based on the Principles of Preponderance of Probabilities and the balance of convenience, finds the 5th Defendant/Applicant has failed to establish its case at this stage. Hence, I proceed to make the following orders: -
a) THAT the Notice of Motion application dated 11th December 2024 be and is hereby found to lack merit and hence dismissed.
b) THAT the matter to be mentioned on 29th September, 2025, for the purpose of conducting Pre – trial conference pursuant to the provisions of Order 11 of the Civil Procedure Rules, 2010.
c) THAT costs of the application to be awarded to the 1st, 2nd & 3rd Plaintiffs/Respondents.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO–SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ………20TH …….. DAY OF ………..JUNE ………….2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Ombache, Advocate for the 1st & 2nd Defendants/Applicants.
c) No appearance for the Plaintiffs; 3nd, 4th, 5th & 6th Defendants/Respondents.