Vide the Notice of Motion dated 22nd April 2025, the applicant sought for orders that: -
- The honourable court be pleased to issue a temporary injunction restraining the 1st to 5th Respondents whether by themselves, their agents, servants, employees or any person claiming under them from: -
- entering, remaining upon, or trespassing onto L.P No. KAKAMEGA /KEDOLI/168,
- constructing, excavating or carrying out any development activities on the suit property,
- alienating, transferring, leasing, charging or in any manner interfering with the suit property,
- harassing, intimidating or interfering with the applicant’s quiet possession and enjoyment of the property pending the hearing and determination of the suit.
- The Officer Commanding Matete Police Station do supervise and ensure compliance with the orders besides providing security for the process server serving the orders because of the violent nature of the Respondents.
- Costs of the application be provided for.
The application was supported by the contents of the Supporting Affidavit sworn by Tom Madahana Changilwa and the annextures thereto.
The application was unopposed. On 5th May 2025 when the matter came up for hearing M/s Mwilolo Advocate attended court on behalf of the 1st Respondent. She requested for time to enable her to respond to the application whereupon the hearing of the application was adjourned to 8/5/2025. On 8/5/2025 none of the Respondents had responded to the application or attended court for the hearing of the application.
Given that the Respondents had been served, the application was heard ex parte.
The substantive order sought is for a temporary injunction. Under Order 40 of the Civil Procedure Rules pursuant to which the application is brought, the applicant must demonstrate that the suit property is in danger of being wasted, damaged or alienated by any party to the suit or wrongly sold in execution of a decree. As held in Giella vs Cassman Brown Co. Ltd (1973) 358 the Applicant must establish a prima facie case with a probability of success, an interlocutory injunction will not normally be granted unless the Applicant would suffer irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience.
The grounds upon which the present application is brought are that the applicant is the lawful purchaser for value of 0.8 Hactares comprising L.P No. KAKAMEGA/KEDOLE/168, that the applicant has been in open, continuous and uninterrupted possession since 2017, that the 1st, 2nd and 3rd Respondents have trespassed onto the suit land and have started construction thereon while the applicant is in actual possession thereof and that the Respondents have no valid claim over the land.
Perusal of the documents placed before court by the applicant shows that the Respondents are the current registered owners of the suit land having obtained title through Succession Cause in respect of the estate of the registered owner of the land. The documents also show that the applicant’s attempt to challenge the decision by the Succession court on appeal was unsuccessful as the appeal was dismissed.
The basis of the applicant’s claim is land sale agreements with which he bought portions of the suit land from the 1st Respondent and 2 of the sons of the deceased registered owner.
In this case the court is being invited to balance the interests of the Respondents who are the presently the registered owners and the applicant whose interest is premised on land sale agreements not with the registered owner but with beneficiaries.
The court finds that on the material presented before court, no prima facie case has been established as defined in Mrao Ltd vs First American Bank Kenya Ltd & 2 Others [2003] eKLR that:
“ a prima facie case in a civil Application includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude 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 court finds further that the balance of convenience tilts in favour of the Respondents.
The application is therefore hereby dismissed. No order as to costs.
Orders accordingly.
Ruling, dated and signed at Vihiga and read virtually this 8th day of May 2025 through Microsoft Teams online application.
E. ASATI,
JUDGE.
In the presence of:
Ajevi Court Assistant.
Anyona for the Plaintiff/Applicant.
No appearance for the Defendants/Respondents.