Lawrence Murori Mukindia v Lawrence Mworia Mutwiri (Sued as the Legal Representative of the Estate of Febian Rugiri – Deceased)

with the plainti had deteriorated for non-payment, took back the land and eventually after his death subdivided the entire land as per the conrmed grant is in the process of obtaining title deed for all the beneciaries. 5. The defendant avers that there have been several dispute altercations and tilts with the plainti hence the alleged occupation was never peaceful to the extent that he resolved to use the police. 6. Therefore, the defendant avers that since the plainti hails from the same village, he should have protested in the succession cause. He attached copies of the sale agreement, acknowledgement receipts, gazette notice, conrmed grant, and police summons as annexures marked ML 1-4, respectively. 7. With leave of court, parties were ordered to le written submissions. The plainti submits that he has established the ingredients of granting an injunction as in Giella vs Cassman Brown Co. Ltd (1973) E. A 1933, since he bought the land, the defendant has acknowledged that land has sentimental value and, if subdivided out of the conrmed grant, the balance of convenience tilts in favour of granting the injunction. Reliance was placed on Joel Kipkurui Arap Koech vs Alice Wambui Magandu & 3 others (2018) eKLR. 8. As to inhibition, the applicant submits that the defendant was in the process of disposing of the land to third parties and, therefore, to avoid the risk, the court should grant an inhibition order guided by Dorcas Muthoni & others vs Michael Ireri Ngari (2016) eKLR and Elly Jepkoech Limo vs Susan Wangoi Kibe & another (2020) eKLR. 9. For a party to be entitled to a temporary injunction, he has to establish a prima facie case with a probability of success and show that the balance of convenience tilts in favour of granting the orders sought. Further, an inhibition has been termed as similar to a prohibitory injunction under Section 68 of the Land Registration Act is given to stop any transaction over a title to land until an occurrence of a certain event. 10. In M'Mwongera Miruri vs Nancy Kanugu Mbaya (2011) eKLR, the applicant had alleged to have been occupying the land for a long time. The orders sought were to preserve the land until the intended appeal's hearing. The alleged occupation was based on a sale agreement. The court said that the mere fact of that possession was prima facie evidence of some understanding between the deceased and the applicant; the truth as to how and on what basis the applicant took possession could only be established at the hearing. 11. In Nguruman Ltd vs Jan Bonde Nielsen & others (2014) eKLR, the court held that the three conditions in Giella supra were distinct and logical hurdles which the applicant was expected to surmount sequentially, and if the prima facie case was not established, then irreparable injury and balance of convenience would not be considered. 12. In the case of Luka Ruteere & others vs Marcella Kinaitore Mwimbi (2022) eKLR, the court observed that an inhibition order issues for some time or until an occurrence of a particular event and to stop any registration of an instrument inconsistent with the inhibition. An inhibition also preserves the property in dispute pending trial as held in David Gitau Kuria vs Michael Mbugua Ndumo & others (2021) eKLR. A prima case is ordinarily established on the material before the court that a right belonging to the applicant has been infringed to call the opposite party to rebut it. 13. Applying the preceding case law to the instant case, has the plainti established entitlement to the reliefs sought? I think so. In the rst instance, a sale agreement was exhibited, dening the parties' rights as to the suit land, which they contracted under the law and vacant possession handed over. In trite law, parties are free to contract and reduce their terms and conditions in writing. In this instance, the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18648/eng@2023-07-12 2

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parties herein agree that certain entitlements accrued from the sale agreement. What is in dispute is whether the sale agreement was breached. 14. On the 2nd hurdle, the plainti avers that there was imminent danger of the property changing hands since there is inexistence of a conrmed grant which, if acted upon, the property might change ownership. In Nguruman (supra), the court said that a party alleging irreparable loss must demonstrate something beyond an alleged fear or apprehension or danger to the property through tangible evidence. The irreparable loss must be substantial and incapable of adequately being remedied by way of damages. 15. In Said Almed vs Manasseh Benya & another (2019) eKLR, the court observed that where what is complained of may be unlawful, the issue of whether or not damages can be an adequate remedy does not fall for consideration since a party should not be allowed to maintain an advantageous position he has gained simply because he was capable of paying the damages. In Joseph Siro Mosoima vs HFCK (2008) eKLR, the court observed that damages were not and could not be substituted for the loss, which was occasioned by a clear breach of the law. 16. In this suit, the plainti has produced evidence of clearance of the consideration to the sale agreement. The defendant, on the other hand, has termed the said documents forgeries. I think there would be irreparable damage if the plainti was disadvantaged by the property changing hands, yet he paid for valuable consideration and took vacant possession. 17. The balance of convenience also tilts in favour of issuing temporary injunctions and inhibitive orders to last for one year. Parties are directed to comply with Order 11 of the Civil Procedure Rules and list the matter for hearing on a priority basis. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 12TH DAY OF JULY 2023 In presence of: C.A John Paul Mwirigi B for Defendant Miss Soy HON. CK NZILI ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18648/eng@2023-07-12 3

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