1. The applicant filed the applications seeking various orders listed in the Notice of Motion dated July 28th, 2025, primarily an order of interim injunction to prevent the respondents and/or any other person from interfering with the applicant’s occupation of the suit property, land parcel Kilifi/Roka/750, eviction arising from the judgment in Malindi ELC No. 41 of 2015 pending the hearing and judgment of the main case.
2. The application is supported by the affidavit of the applicant, sworn on July 28, 2025, and a supplementary affidavit sworn on October 22, 2025.
3. The application is opposed. The respondents have filed an affidavit deposed on 6th August 2025 by the 1st respondent.
4. The court directed that the application be presented through written submissions. I acknowledge receipt of the parties' submissions and appreciate their efforts, as they greatly assist the court in deciding the issues raised in the application.
5. The issues that arise for this court's determination are whether the court should issue an interim injunction at this stage and who should bear the costs of the application.
6. The applicant avers that he has been living on the suit property for over 40 years and has acquired the suit property by operation of the doctrine of adverse possession.
7. It is further alleged that the 1st respondent has obtained judgment in Malindi ELC No. 41 of 2015 and has applied for his eviction.
8. That the issuance of such an eviction will erode the applicant's rights over the suit property and that, in the previous suit, it was heard ex parte, and the issue of adverse possession was never addressed.
9. On the other hand, the respondents contend that the suit in question has been in court since 2015, spanning over 10 years. They argue that a judgment is already in place and that the current suit seeks to relitigate matters settled in the prior suit. Therefore, they claim that the current application and suit constitute an abuse of the court process and thus should be dismissed.
10. The application is brought pursuant to Order 40 of the Civil Procedure Rules. It states as follows:
“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.”
11. The principles for the issuance of interlocutory injunctions were articulated in the well-known case of Giella v Cassman Brown & Company Limited [1973] EA 358, reiterated in Nguruman Limited v Jan Bonde Nielsen & 2 others [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) allay any doubts as to b, by showing that the balance of convenience is in his favour.
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 steps are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”
12. A Prima facie case is defined in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, where the Court of Appeal held as follows:
“The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are, first, an applicant must show 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 an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience...A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of a prima facie case, the former being the lesser standard of the two...In civil cases a prima facie case is a case in 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
13. Applying the principles mentioned above regarding the issuance of an interlocutory injunction, an issue has been raised that the issues raised in this case have already been litigated and settled in ELC No. 41 of 2015. It is reported as Amri Khamis & another v Slyvester Chibo Mwarome [2021] KEELC 2447 (KLR). This court (Olola J.) made a finding as follows:
“The Applicants have explained that the Vendor was childless and that they were unaware of how and when the Respondent became the deceased’s adopted son and/or when he filed the application for grant of Letters of Administration.
25. In the premises I am satisfied that the Applicants have proved their case on a balance of probabilities. Accordingly, I allow the Originating Summons in terms of Prayers 3 and 4 thereof.
26. The Respondent has 45 days from today to execute the documents of transfer of the suit property to the Applicants failure to which the Deputy Registrar of this Court shall do so as sought in the alternative at Prayer No. 5 of the Summons.
27. The Applicants shall have the costs of this suit.”
14. An examination of the proceedings in the previous suit shows that the matter in dispute involved the current suit property, which the former court found was fraudulently transferred to the applicant through transmission. A decree has been issued and is currently being enforced. Additionally, an eviction application was filed. From the (CTS), an eviction order has been issued against the applicant by this court (Njoroge J), and the execution is underway.
15. It is due to the realization that eviction was imminent that the applicant filed this suit to prevent the same.
16. Agreeing with the respondents, I believe that issuing an injunction to stop a lawful execution already in progress would be an abuse of the court process. It would undermine orders issued by a coordinate court, leading to absurdity and chaos due to two parallel orders from the same court.
17. Therefore, I do not find favor and am not persuaded that the orders requested in the form of an interlocutory injunction can be issued at this stage. The application dated July 28, 2025, is hereby dismissed with costs.
18. Dated, signed, and delivered electronically in Nyeri on this 11th day of March, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr.Katambo for the Applicant
Amri Khamis (1st Respondent in person)
Kendi: Court Assistant
2. The application is supported by the affidavit of the applicant, sworn on July 28, 2025, and a supplementary affidavit sworn on October 22, 2025.
3. The application is opposed. The respondents have filed an affidavit deposed on 6th August 2025 by the 1st respondent.
4. The court directed that the application be presented through written submissions. I acknowledge receipt of the parties' submissions and appreciate their efforts, as they greatly assist the court in deciding the issues raised in the application.
5. The issues that arise for this court's determination are whether the court should issue an interim injunction at this stage and who should bear the costs of the application.
6. The applicant avers that he has been living on the suit property for over 40 years and has acquired the suit property by operation of the doctrine of adverse possession.
7. It is further alleged that the 1st respondent has obtained judgment in Malindi ELC No. 41 of 2015 and has applied for his eviction.
8. That the issuance of such an eviction will erode the applicant's rights over the suit property and that, in the previous suit, it was heard ex parte, and the issue of adverse possession was never addressed.
9. On the other hand, the respondents contend that the suit in question has been in court since 2015, spanning over 10 years. They argue that a judgment is already in place and that the current suit seeks to relitigate matters settled in the prior suit. Therefore, they claim that the current application and suit constitute an abuse of the court process and thus should be dismissed.
10. The application is brought pursuant to Order 40 of the Civil Procedure Rules. It states as follows:
“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.”
11. The principles for the issuance of interlocutory injunctions were articulated in the well-known case of Giella v Cassman Brown & Company Limited [1973] EA 358, reiterated in Nguruman Limited v Jan Bonde Nielsen & 2 others [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) allay any doubts as to b, by showing that the balance of convenience is in his favour.
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 steps are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”
12. A Prima facie case is defined in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, where the Court of Appeal held as follows:
“The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are, first, an applicant must show 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 an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience...A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of a prima facie case, the former being the lesser standard of the two...In civil cases a prima facie case is a case in 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
13. Applying the principles mentioned above regarding the issuance of an interlocutory injunction, an issue has been raised that the issues raised in this case have already been litigated and settled in ELC No. 41 of 2015. It is reported as Amri Khamis & another v Slyvester Chibo Mwarome [2021] KEELC 2447 (KLR). This court (Olola J.) made a finding as follows:
“The Applicants have explained that the Vendor was childless and that they were unaware of how and when the Respondent became the deceased’s adopted son and/or when he filed the application for grant of Letters of Administration.
25. In the premises I am satisfied that the Applicants have proved their case on a balance of probabilities. Accordingly, I allow the Originating Summons in terms of Prayers 3 and 4 thereof.
26. The Respondent has 45 days from today to execute the documents of transfer of the suit property to the Applicants failure to which the Deputy Registrar of this Court shall do so as sought in the alternative at Prayer No. 5 of the Summons.
27. The Applicants shall have the costs of this suit.”
14. An examination of the proceedings in the previous suit shows that the matter in dispute involved the current suit property, which the former court found was fraudulently transferred to the applicant through transmission. A decree has been issued and is currently being enforced. Additionally, an eviction application was filed. From the (CTS), an eviction order has been issued against the applicant by this court (Njoroge J), and the execution is underway.
15. It is due to the realization that eviction was imminent that the applicant filed this suit to prevent the same.
16. Agreeing with the respondents, I believe that issuing an injunction to stop a lawful execution already in progress would be an abuse of the court process. It would undermine orders issued by a coordinate court, leading to absurdity and chaos due to two parallel orders from the same court.
17. Therefore, I do not find favor and am not persuaded that the orders requested in the form of an interlocutory injunction can be issued at this stage. The application dated July 28, 2025, is hereby dismissed with costs.
18. Dated, signed, and delivered electronically in Nyeri on this 11th day of March, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr.Katambo for the Applicant
Amri Khamis (1st Respondent in person)
Kendi: Court Assistant