Denka Limited v Rawraw

5. Costs of the application be borne by the Defendant/Respondent. 3. The grounds are on the face of the application set out in paragraphs (a) to (e). 4. The Application is supported by the adavit of John Waweru Kangethe, a director of the Plainti/ Applicant sworn on the 10th January 2023 and a supporting adavit sworn on the 31st January 2023. 5. The Application is opposed. There is a Replying Adavit sworn by Kisio Raurau the defendant/ respondent sworn on the 23rd January 2023. 6. On the 2nd March 2023, the court with the consent of the parties directed that the Notice of Motion be canvassed by way of written submissions. 7. The plainti/submissions are dated 29th March 2023. They raise the following issues; 8. i. Has the Plainti/Applicant met the criteria for granting of a temporary injunction pending the hearing and determination of this suit? ii. Is the Plainti/Applicant entitled to prayers sought? Counsel submitted that the Plainti/Applicant has annexed a title deed to the suit property. Further that the defendant has trespassed on the same. It is also submitted that the suit property is charged to Consolidated Bank of Kenya hence the Plainti/Applicant will suer irreparable harm if these orders are not granted. He has put forward the cases of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR; Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & Another [2019]eKLR. 9. It is also submitted that the balance of convenience tilts in favour of the Plainti/Applicant who is the registered owner of the suit property. He has put forward the case of Airland Tours and Travel Ltd v National Industrial Credit Bank, Milimani HCCC No.1234 of 2003; Jeremiah Thuku Nganga & another v John Waithaka Aidan (Suing on behalf of the estate of Aida Wangui Waithaka [2020]eKLR. He prays that the Application be allowed. 10. The Defendant/Respondents submissions dated 27th June 2023. It is submitted that the root of the Plainti’s title was an illegality that was challenged and heard by the Land Registrar and a decision made. He has put forward the case of Dina Management Limited Vs. County Government of Mombasa & 5 Others Supreme Court of Kenya Petition No.8/2021. 11. Counsel also submitted that the Plainti/Applicant has failed to establish a prima facie case. Further that it has failed to show what irreparable harm it is likely to suer if these orders are not granted. 12. It is also submitted that the balance of convenience tilts in favour of the Defendant/Respondent since the Land Registrar has determined the boundary dispute in his favour. He prays that the Application be dismissed with costs. 13. I have considered the Notice of Motion, the adavit in support and the annexutures. I have also considered the response thereto, the written submissions and the authorities cited. The issues for determination are; https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20606/eng@2023-10-05 2

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14. i. Whether the Plainti/Applicant’s application meets the threshold for grant of temporary injunction. ii. Who should bear costs of this Application? The principles for granting a temporary injunction were set out in the precedent setting case of Giella v Cass man Brown [1973] EA 358. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003)eKLR dened what amounts to a prima facie case. 15. The Plainti/Applicant’s case is that the defendant has been attempting to erect a fence on part of the suit property. Further that this encroachment on the suit property may lead to its eventual alienation without the Plainti/Applicant’s approval. 16. The Defendant/Respondent in his Replying Adavit denies that he has trespassed on the suit property. 17. I am satised that the Plainti/Applicant is the registered owner of the suit property. There are photographs annexed which conrm some form of tampering of the suit property by erecting a fence. Thus prompted the Plainti’s/Applicant’s director to make a report at Kajiado Police Station. 18. I nd that the Plainti/Applicant has establish a prima facie case with a probability of success at the trial. 19. I also nd that it is likely to suer irreparable harm if the Defendant/Respondent continues with the encroachment. 20. The balance of convenience tilts in favour of the Plainti/Applicant as it is the registered owner of the suit property. I rely on the case of Paul Gitonga Wanjau v Gathuti Tea factory Limited & others [2016]eKLR. 21. In conclusion I nd merit in this application and the same is allowed in the following terms; a. That a temporary injunction is hereby issued restraining the Defendant/Respondent his agents, servants, employees from entering, trespassing, constructing or in any other manner interfering with the Plainti/Applicants quiet use and possession of LR. No. Kajiado/ Dalalekutuk/5283 pending the hearing and determination of this suit. b. That costs of this Application do abide the outcome of the main suit. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 5TH DAY OF OCTOBER, 2023. L. KOMINGOI JUDGE. In The Presence Of: Ms. Kiunga for Mr. Theuri for the Plainti/Applicant present. Mr. Ibrahim Mwangi for the Defendant/Respondent present. Court Assistant – Mutisya. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20606/eng@2023-10-05 3

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