The application is dated 28th November 2019 and is brought under Sections 93(1) and (2) of the Law of Succession Act (Cap 160), 1A, 1B, 3A, of the Civil Procedure Act of 2010, Order 40 Rule 1, Order 51 of the Civil Procedure Rules, Part VII (Sections 68- 78 of the Land Registration Act 2012 seeking the following orders;
1. That this application be certified urgent and heard exparte in the first instance.
2. That service of this application upon the 1st and 2nd Defendants/Respondents be dispensed with in the first instance.
3. That pending the hearing and determination of this application, and for purposes of preventing the wasting, damaging, alienation, sale, removal or disposition of the parcel of land described as Title No. Donyo Sabuk/Komarock Block 1/84687 situate within Machakos County and measuring approximately two decimal four three (2.43) hectares or thereabouts, this Honourable Court be pleased to issue an order preventing the 1st Defendant/Respondent by herself, her employees, servants or agents from entering into and or retaining occupation, using, selling, leasing, mortgaging, charging, sub-letting or dealing in any manner whatsoever with the said parcel of land.
4. That pending the hearing and determination of this suit and for purposes of preventing the wasting, damaging, alienation, sale, removal or disposition of the parcel of land described as Title No. Donyo Sabuk/Komarock Block 1/84687, situate within Machakos County and measuring approximately two decimal four three (2.43) hectares or thereabouts, this Honourable Court be pleased to issue an order preventing the 1st Defendant/Respondent by herself, her employees, servants or agents from entering into and or retaining occupation, using, selling, leasing, mortgaging, charging, sub-letting or dealing in any manner whatsoever with the said parcel of land.
5. That the inhibition/restriction lodged by the 1st Defendant/Respondent with the Land Registrar Machakos (the 2nd Defendant herein) and registered by the 2nd Defendant against the entire original Title No. Donyo Sabuk/Komarock Block 1/62 (now sub-divided into land parcels No. 1/84321, 1/84322, 1/84323 and 1/84324) be removed and or varied by the 2nd Defendant, in so far as it relates to Title No. Donyo Sabuk/Komarock Block 1/84321 (now further sub-divided into land parcels No. 1/84684, 1/84685, 1/84686 and 1/84687).
6. That the costs of this application be awarded to the Plaintiffs/Applicants.
It is based on the grounds that the Plaintiffs/Applicants are the absolute, indefeasible and lawfully registered proprietors of the parcel of land known as Title No. Donyo Sabuk/Komarock Block 1/84687 (a sub-division of Title No. Donyo Sabuk/Komarock Block 1/84321, original Title No. Donyo Sabuk/Komarock Block 1/62) situate in Kangundo sub-county of Machakos County. The Plaintiffs/Respondents have sub-divided their property, LR. No. Donyo Sabuk/Komarock Block 1/84687 into 73 parcels to be allocated to each of the 73 members, who have taken possession and are awaiting issuance of titles by the Land Registrar, Machakos Lands Registry. The Defendant/Respondent has, wrongfully and without any reasonable cause, lodged a inhibition/restriction with the Chief Land Registrar, Machakos forbidding any further alienation, dealing, developing, selling, gifting or in any other way dealing with the entire parcel of land previously known as Title No. Donyo Sabuk/Komarock Block 1/62) (now sub-divided into land parcels No. 84321, 84322, 84323 and 84324) purportedly pending the hearing and determination of the application by the 1st Defendant/Respondent dated 3rd May 2019 seeking to revoke the Certificate of confirmation of Grant made on 18th December 2017 to Isaac Mwanthi Mweu, Teresia Musyoka Mweu and Veronica Mwikali. Title No. Donyo Sabuk/Komarock Block 1/84321 originally registered in the name of Isaac Mwanthi Mweu, no longer exists as the same has already been sub-divided into four new parcels namely 1/84684, 1/84685, 1/84686 and 84687, and parcel No. 1/84687 has further been sub-divided into 73 new parcels to be allocated to the 73 members of the Promised Land Githurai Self Help Group. The process of transferring of the suit property to the Plaintiffs/Applicants by Isaac Mwanthi Mweu, to whom representation has been granted, was finalized prior to purchase by the Plaintiffs/Applicants and is valid, notwithstanding any subsequent revocation or variation of the grant. The Plaintiffs/Applicants purchased the land parcel Title No. Donyo Sabuk/Komarock Block 1/84687 from one Isaac Mwanthi Mweu for valuable consideration and in good faith, without notice of any defects in the title whatsoever. The Plaintiffs/Applicants not only finalized transfer of the suit land to themselves, but have since divided the said parcel into 73 portions and allocated them to each of the 73 members, who have taken possession. The process of subdivision of the suit land was finalized, but issuance of titles to the third parties stalled due to the inhibition/restriction lodged by the 1st Defendant/Respondent and registered by Land Registrar, Machakos against the entire original Title No. Donyo Sabuk/Komarock Block 1/62 which no longer exists.
This court has considered the application and the submissions therein. The principles
of granting temporary injunctions are well settled and are set out in the judicial decision of Giella vs Cassman Brown (1973) EA 358. This position has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of Nguruman Limited vs 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, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.
These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”.
Consequently, the Plaintiffs ought to, first, establish a prima facie case. In Mrao Ltd vs First American Bank of Kenya Ltd (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.”
Secondly, the Plaintiff has to demonstrate that irreparable injury will be occasioned to them if an order of temporary injunction is not granted. The judicial decision of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR provides an explanation for what is meant by irreparable injury and it states;
“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.
The Applicant states that the Plaintiffs/Applicants are the absolute, indefeasible and lawfully registered proprietors of the parcel of land known as Title No. Donyo Sabuk/Komarock Block 1/84687 (a sub-division of Title No. Donyo Sabuk/Komarock Block 1/84321, original Title No. Donyo Sabuk/Komarock Block 1/62) situate in Kangundo sub-county of Machakos County.
Thirdly, the Plaintiff has to demonstrate that the balance of convenience tilts in their favour. In the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) EKLR which defined the concept of balance of convenience as:
‘The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.
In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”.
The decision of Amir Suleiman vs Amboseli Resort Limited (2004) eKLR where the learned judge offered further elaboration on what is meant by “balance of convenience” and stated;
“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”
The Applicants stated that the Plaintiffs/Respondents have sub-divided their property, LR. No. Donyo Sabuk/Komarock Block 1/84687 into 73 parcels to be allocated to each of the 73 members, who have taken possession and are awaiting issuance of titles by the Land Registrar, Machakos Lands Registry. The Defendant/Respondent has, wrongfully and without any reasonable cause, lodged a inhibition/restriction with the Chief Land Registrar, Machakos forbidding any further alienation, dealing, developing, selling, gifting or in any other way dealing with the entire parcel of land previously known as Title No. Donyo Sabuk/Komarock Block 1/62) (now sub-divided into land parcels No. 84321, 84322, 84323 and 84324) purportedly pending the hearing and determination of the application by the 1st Defendant/Respondent dated 3rd May 2019 seeking to revoke the Certificate of confirmation of Grant made on 18th December 2017 to Isaac Mwanthi Mweu, Teresia Musyoka Mweu and Veronica Mwikali. Title No. Donyo Sabuk/Komarock Block 1/84321 originally registered in the name of Isaac Mwanthi Mweu, no longer exists as the same has already been sub-divided into four new parcels namely 1/84684, 1/84685, 1/84686 and 84687, and parcel No. 1/84687 has further been sub-divided into 73 new parcels to be allocated to the 73 members of the Promised Land Githurai Self Help Group.
The Applicants further sought for the inhibition/restriction lodged by the 1st Defendant/Respondent with the Land Registrar Machakos (the 2nd Defendant herein) and registered by the 2nd Defendant against the entire original Title No. Donyo Sabuk/Komarock Block 1/62 (now sub-divided into land parcels No. 1/84321, 1/84322, 1/84323 and 1/84324) be removed and or varied by the 2nd Defendant, in so far as it relates to Title No. Donyo Sabuk/Komarock Block 1/84321 (now further sub-divided into land parcels No. 1/84684, 1/84685, 1/84686 and 1/84687).
When it comes to mandatory injunctions, courts have been hesitant to grant the same particularly at the interlocutory stage, save in clear-cut cases. Such was the reasoning taken by the court in Lucy Wangui Gachara vs Minudi Okemba Lore (2015) eKLR when it rendered itself thus;
“…the court will not grant a mandatory injunction if the damage feared by the plaintiff is trivial, or where the detriment that the mandatory injunction would inflict is disproportionate to the benefit it would confer. We would also add that, save in the clearest of cases, the right of the parties to a fair and proper hearing of their dispute, entailing calling and cross-examination of witnesses must not be sacrificed or substituted by a summary hearing.
Persuasive judicial pronouncements by Indian courts have also affirmed that great circumspection is called for before awarding a mandatory injunction at interlocutory stage. In BHARAT PETROLEUM CORP LTD V. HARO CHAND SACHDEVA, AIR 2003, Gupta, J. of the Delhi High Court observed as follows:
“While Courts power to grant temporary mandatory injunction on interlocutory application cannot be disputed, but such temporary mandatory injunctions have to be issued only in rare cases where there are compelling circumstances and where the injury complained of is immediate and pressing and is likely to cause extreme hardship. If a mandatory injunction has to be granted at all on interlocutory application, it is granted only to restore status quo and not to establish a new state of things.”
I find that it would be premature for me to grant final orders of removal of the restriction at this interim stage in favour of the Applicants
Bearing this in mind, I am convinced that there is a risk in not granting orders of temporary injunction than granting them, as I wait to hear the suit on its merits. This is especially so because I have not had opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the current situation on the ground. I have also not had the opportunity to interrogate the annexures therein.
In Robert Mugo wa Karanja vs Ecobank (Kenya) Limited & Another (2019) eKLR where the court in deciding on an injunction application stated;
“circumstances for consideration before granting a temporary injunction under order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”
In view of the foregoing, I find that the application is merited to some extent and I order that status quo be maintained pending the hearing and determination of the suit. Parties are advised to comply with order 11 and set down the matter for hearing. Costs to be in the cause.
It is so ordered.
1. That this application be certified urgent and heard exparte in the first instance.
2. That service of this application upon the 1st and 2nd Defendants/Respondents be dispensed with in the first instance.
3. That pending the hearing and determination of this application, and for purposes of preventing the wasting, damaging, alienation, sale, removal or disposition of the parcel of land described as Title No. Donyo Sabuk/Komarock Block 1/84687 situate within Machakos County and measuring approximately two decimal four three (2.43) hectares or thereabouts, this Honourable Court be pleased to issue an order preventing the 1st Defendant/Respondent by herself, her employees, servants or agents from entering into and or retaining occupation, using, selling, leasing, mortgaging, charging, sub-letting or dealing in any manner whatsoever with the said parcel of land.
4. That pending the hearing and determination of this suit and for purposes of preventing the wasting, damaging, alienation, sale, removal or disposition of the parcel of land described as Title No. Donyo Sabuk/Komarock Block 1/84687, situate within Machakos County and measuring approximately two decimal four three (2.43) hectares or thereabouts, this Honourable Court be pleased to issue an order preventing the 1st Defendant/Respondent by herself, her employees, servants or agents from entering into and or retaining occupation, using, selling, leasing, mortgaging, charging, sub-letting or dealing in any manner whatsoever with the said parcel of land.
5. That the inhibition/restriction lodged by the 1st Defendant/Respondent with the Land Registrar Machakos (the 2nd Defendant herein) and registered by the 2nd Defendant against the entire original Title No. Donyo Sabuk/Komarock Block 1/62 (now sub-divided into land parcels No. 1/84321, 1/84322, 1/84323 and 1/84324) be removed and or varied by the 2nd Defendant, in so far as it relates to Title No. Donyo Sabuk/Komarock Block 1/84321 (now further sub-divided into land parcels No. 1/84684, 1/84685, 1/84686 and 1/84687).
6. That the costs of this application be awarded to the Plaintiffs/Applicants.
It is based on the grounds that the Plaintiffs/Applicants are the absolute, indefeasible and lawfully registered proprietors of the parcel of land known as Title No. Donyo Sabuk/Komarock Block 1/84687 (a sub-division of Title No. Donyo Sabuk/Komarock Block 1/84321, original Title No. Donyo Sabuk/Komarock Block 1/62) situate in Kangundo sub-county of Machakos County. The Plaintiffs/Respondents have sub-divided their property, LR. No. Donyo Sabuk/Komarock Block 1/84687 into 73 parcels to be allocated to each of the 73 members, who have taken possession and are awaiting issuance of titles by the Land Registrar, Machakos Lands Registry. The Defendant/Respondent has, wrongfully and without any reasonable cause, lodged a inhibition/restriction with the Chief Land Registrar, Machakos forbidding any further alienation, dealing, developing, selling, gifting or in any other way dealing with the entire parcel of land previously known as Title No. Donyo Sabuk/Komarock Block 1/62) (now sub-divided into land parcels No. 84321, 84322, 84323 and 84324) purportedly pending the hearing and determination of the application by the 1st Defendant/Respondent dated 3rd May 2019 seeking to revoke the Certificate of confirmation of Grant made on 18th December 2017 to Isaac Mwanthi Mweu, Teresia Musyoka Mweu and Veronica Mwikali. Title No. Donyo Sabuk/Komarock Block 1/84321 originally registered in the name of Isaac Mwanthi Mweu, no longer exists as the same has already been sub-divided into four new parcels namely 1/84684, 1/84685, 1/84686 and 84687, and parcel No. 1/84687 has further been sub-divided into 73 new parcels to be allocated to the 73 members of the Promised Land Githurai Self Help Group. The process of transferring of the suit property to the Plaintiffs/Applicants by Isaac Mwanthi Mweu, to whom representation has been granted, was finalized prior to purchase by the Plaintiffs/Applicants and is valid, notwithstanding any subsequent revocation or variation of the grant. The Plaintiffs/Applicants purchased the land parcel Title No. Donyo Sabuk/Komarock Block 1/84687 from one Isaac Mwanthi Mweu for valuable consideration and in good faith, without notice of any defects in the title whatsoever. The Plaintiffs/Applicants not only finalized transfer of the suit land to themselves, but have since divided the said parcel into 73 portions and allocated them to each of the 73 members, who have taken possession. The process of subdivision of the suit land was finalized, but issuance of titles to the third parties stalled due to the inhibition/restriction lodged by the 1st Defendant/Respondent and registered by Land Registrar, Machakos against the entire original Title No. Donyo Sabuk/Komarock Block 1/62 which no longer exists.
This court has considered the application and the submissions therein. The principles
of granting temporary injunctions are well settled and are set out in the judicial decision of Giella vs Cassman Brown (1973) EA 358. This position has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of Nguruman Limited vs 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, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.
These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”.
Consequently, the Plaintiffs ought to, first, establish a prima facie case. In Mrao Ltd vs First American Bank of Kenya Ltd (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.”
Secondly, the Plaintiff has to demonstrate that irreparable injury will be occasioned to them if an order of temporary injunction is not granted. The judicial decision of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR provides an explanation for what is meant by irreparable injury and it states;
“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.
The Applicant states that the Plaintiffs/Applicants are the absolute, indefeasible and lawfully registered proprietors of the parcel of land known as Title No. Donyo Sabuk/Komarock Block 1/84687 (a sub-division of Title No. Donyo Sabuk/Komarock Block 1/84321, original Title No. Donyo Sabuk/Komarock Block 1/62) situate in Kangundo sub-county of Machakos County.
Thirdly, the Plaintiff has to demonstrate that the balance of convenience tilts in their favour. In the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) EKLR which defined the concept of balance of convenience as:
‘The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.
In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”.
The decision of Amir Suleiman vs Amboseli Resort Limited (2004) eKLR where the learned judge offered further elaboration on what is meant by “balance of convenience” and stated;
“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”
The Applicants stated that the Plaintiffs/Respondents have sub-divided their property, LR. No. Donyo Sabuk/Komarock Block 1/84687 into 73 parcels to be allocated to each of the 73 members, who have taken possession and are awaiting issuance of titles by the Land Registrar, Machakos Lands Registry. The Defendant/Respondent has, wrongfully and without any reasonable cause, lodged a inhibition/restriction with the Chief Land Registrar, Machakos forbidding any further alienation, dealing, developing, selling, gifting or in any other way dealing with the entire parcel of land previously known as Title No. Donyo Sabuk/Komarock Block 1/62) (now sub-divided into land parcels No. 84321, 84322, 84323 and 84324) purportedly pending the hearing and determination of the application by the 1st Defendant/Respondent dated 3rd May 2019 seeking to revoke the Certificate of confirmation of Grant made on 18th December 2017 to Isaac Mwanthi Mweu, Teresia Musyoka Mweu and Veronica Mwikali. Title No. Donyo Sabuk/Komarock Block 1/84321 originally registered in the name of Isaac Mwanthi Mweu, no longer exists as the same has already been sub-divided into four new parcels namely 1/84684, 1/84685, 1/84686 and 84687, and parcel No. 1/84687 has further been sub-divided into 73 new parcels to be allocated to the 73 members of the Promised Land Githurai Self Help Group.
The Applicants further sought for the inhibition/restriction lodged by the 1st Defendant/Respondent with the Land Registrar Machakos (the 2nd Defendant herein) and registered by the 2nd Defendant against the entire original Title No. Donyo Sabuk/Komarock Block 1/62 (now sub-divided into land parcels No. 1/84321, 1/84322, 1/84323 and 1/84324) be removed and or varied by the 2nd Defendant, in so far as it relates to Title No. Donyo Sabuk/Komarock Block 1/84321 (now further sub-divided into land parcels No. 1/84684, 1/84685, 1/84686 and 1/84687).
When it comes to mandatory injunctions, courts have been hesitant to grant the same particularly at the interlocutory stage, save in clear-cut cases. Such was the reasoning taken by the court in Lucy Wangui Gachara vs Minudi Okemba Lore (2015) eKLR when it rendered itself thus;
“…the court will not grant a mandatory injunction if the damage feared by the plaintiff is trivial, or where the detriment that the mandatory injunction would inflict is disproportionate to the benefit it would confer. We would also add that, save in the clearest of cases, the right of the parties to a fair and proper hearing of their dispute, entailing calling and cross-examination of witnesses must not be sacrificed or substituted by a summary hearing.
Persuasive judicial pronouncements by Indian courts have also affirmed that great circumspection is called for before awarding a mandatory injunction at interlocutory stage. In BHARAT PETROLEUM CORP LTD V. HARO CHAND SACHDEVA, AIR 2003, Gupta, J. of the Delhi High Court observed as follows:
“While Courts power to grant temporary mandatory injunction on interlocutory application cannot be disputed, but such temporary mandatory injunctions have to be issued only in rare cases where there are compelling circumstances and where the injury complained of is immediate and pressing and is likely to cause extreme hardship. If a mandatory injunction has to be granted at all on interlocutory application, it is granted only to restore status quo and not to establish a new state of things.”
I find that it would be premature for me to grant final orders of removal of the restriction at this interim stage in favour of the Applicants
Bearing this in mind, I am convinced that there is a risk in not granting orders of temporary injunction than granting them, as I wait to hear the suit on its merits. This is especially so because I have not had opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the current situation on the ground. I have also not had the opportunity to interrogate the annexures therein.
In Robert Mugo wa Karanja vs Ecobank (Kenya) Limited & Another (2019) eKLR where the court in deciding on an injunction application stated;
“circumstances for consideration before granting a temporary injunction under order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”
In view of the foregoing, I find that the application is merited to some extent and I order that status quo be maintained pending the hearing and determination of the suit. Parties are advised to comply with order 11 and set down the matter for hearing. Costs to be in the cause.
It is so ordered.