Gabriel Onga & 30 others v Mbukoni Holdings Ltd & 2 others [2017] KEELC 2549 (KLR)

restraining the 2nd Defendant from sub-dividing, transferring, selling, offering for sale, registering and/or in any other manner interfering with the Plaintiffs’ peaceful and quiet occupation and possession of the suit property pending the hearing and determination of this suit. The Plaintiffs’ application which was supported by the affidavit of Erastus Mwangi Macharia sworn on 10th September 2015 was brought on the grounds that the Plaintiffs in good faith purchased portions of the suit property from the 1stDefendant who had acquired the suit property from the 3rd Defendant. The 3rd defendant is said to have acquired the suit property from the members of the deceased’s family. The Plaintiffs contended that the 2nd Defendant in her capacity as the widow and administrator of the estate of the deceased had threatened to evict them from the suit property and have the structures they had put up thereon demolished and the property sold to third parties. The Plaintiffs annexed to the supporting affidavit of Erastus Mwangi Macharia copies of receipts, share certificates and beacon certificates which were issued to them by the 1st Defendant upon purchase of the said portions of the suit property. The Plaintiffs contended that they had occupied the said portions peacefully from the year 2001 until the year 2011 when they were issued with quit notices by the 2 nd Defendant’s advocates. The Plaintiffs averred that they had developed their respective portions of the suit property at great expense and that they were the lawful owners thereof. The Plaintiffs annexed photographs showing the residential houses they claimed to have constructed on the suit property. The Plaintiffs contended that their threatened eviction from the suit property was causing them mental anguish and distress against which they were seeking this court’s protection. The Plaintiffs contended that they had established a prima facie case against the Defendants with a probability of success and that unless the orders sought are granted, they would suffer irreparable harm which cannot be compensated in damages. The Plaintiffs contended further that the balance of convenience was in favour of granting the orders sought. The application was opposed by the 2ndDefendant through affidavit sworn on 27thOctober 2015. The 2ndDefendant stated that the suit property was registered in the name of the deceased and that grant of letters of administration in respect of the estate of the deceased had not been obtained. The 2 nd Defendant stated that while she was in the process of applying for grant of letters of administration in respect of the estate of the deceased, she noted that there were strangers carrying out construction on the suit property. The 2nd Defendant stated that she had never had any dealings with the other Defendants or the Plaintiffs in respect of the suit property. The 2 nd Defendant stated that she had no capacity to sell the suit property and was a stranger to the alleged sale of the suit property to the 3 rd Defendant. The 2nd Defendant denounced the documents attached to the affidavit in support of the application as evidence of the sale transaction between members of her family and the 3rd defendant and termed them forgeries. The 2nd Defendant stated that the Plaintiffs and the 1 st and 3rd Defendants were intermeddling with the estate of the deceased and were trespassers on the suit property. The 2 nd Defendant stated that the beneficiaries of the estate of the deceased had been denied access and the right to use the suit property. The 2 nd Defendant contended that the Plaintiffs had not established a prima facie case with a probability of success. The 2 nd Defendant took issue with the Plaintiffs’ failure to prosecute the earlier application for injunction and termed the present application as frivolous and vexatious. The application was argued by way of written submissions. The Plaintiffs filed their submissions on 15 th January 2016 while the 2nd Defendant filed her submissions on 10 th February 2016. I have considered the Plaintiffs’ application and the response thereto by the 2 ndDefendant. I have also considered the parties’ respective submissions and the cases which were cited in support thereof. The principles upon which this court exercises its discretion in applications of this nature are now well-settled. An applicant for a temporary injunction must show a prima facie case with probability of success and demonstrate that he will suffer irreparable injury which cannot be compensated in damages if the order is not granted. If the court is in doubt, the application would be determined on a balance of convenience. See, the case of Giella vs. Cassman Brown & Co. Ltd. (1973) E. A 358 which was cited by both parties. On the material before me, I am not satisfied that the Plaintiffs have established a prima facie case with a probability of success against the 2ndDefendant. In my view, the Plaintiffs have not established the proprietorship interests which they claim to have over the suit property. The Plaintiffs who claim to have acquired

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portions of the suit property from Mbukoni Holdings Limited (hereinafter referred to only as “Mbukoni”) have not demonstrated that Mbukoni had owned the suit property or any part thereof. The Plaintiffs have not established their interests in the portions of the suit property which they claim to be under their occupation. I am not persuaded that the documents annexed to the affidavit in support of the plaintiffs’ application have met the evidentiary threshold for proof of title to land. I am also not satisfied that the Plaintiffs will suffer irreparable injury which cannot be compensated in damages if the orders sought are not granted. I have noted that in their amended plaint dated 15th May 2015, the Plaintiffs have sought damages as an alternative relief. This means that the loss which the Plaintiffs may suffer if the injunction sought is not granted can be quantified and compensated by an award of damages. Due to the foregoing, I am not satisfied that the Plaintiffs have met the conditions for granting a temporary injunction. The Plaintiffs’ application dated 10 th September 2015is therefore not for granting. The same is accordingly dismissed with costs to the 2 nd Defendant. I order further that this file be taken back to the Environment and Land Court at Machakos for hearing and final determination. Delivered and Signed at Nairobi this 27th day of June, 2017 S. OKONG’O JUDGE Ruling delivered in open court in the presence of: Ms. Serem h/b for Wangira N/A Ms. Lipwop h/b for Senteo for the Plaintiffs for the 1stDefendant for the 2nd Defendant N/A for the 3rd Defendant Kajuju Court Assistant

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