keelc-2023-21768

4. The application is opposed by the 2nd Defendant vide its replying adavit sworn by its director one Henry Figondo on 5.10.2023. He avers that the prayers sought in the application are similar to the prayers in the substantive suit including the prayer for mesne prot, hence such a determination thereof at this preliminary stage would amount to a disposal of the suit by way of an application. 5. He also avers that the 2nd Defendant is unable to enforce the prayer for payment of rent to this court as it parted with possession of the suit property vide a sale on 14.7.2022 way before it was made a party to this suit. 6. He adds that even prior to the sale of the property, the same was informally charged to prime bank who hold the title over the same, for which the 2nd Defendant is negotiating release to enable it complete its obligations under the agreement for sale. 7. The issues that fall for determination in the matter are; (i) Whether this court’s orders of 3.6.2021 should be varied to allow ksh.5 million deposited into court by the Plaintis to be released to them as mesne prots. (ii) Whether the Plaintis have met the threshold for grant of a temporary injunction restraining the 2nd Defendant from collecting rent and whether it should be compelled to deposit the said rent to court. 8. On the 1st issue, this court has power to review its orders under Section 80 of the Civil Procedure Act. Order 45 Rule 1 of the Civil Procedure Rules sets the grounds for review as; Discovery of new and important matter or evidence, mistake or error apparent on the face of the record or any other sucient reason. 9. It is on the understanding that the suit land was still registered in Defendant’s name that on 3.6.2021, this court issued orders directing that the sum of ksh.5 million paid to court by the Plaintis together with rental income collected from the suit premises be deposited in a joint interest earning account in the names of the advocates on record pending the hearing and determination of this suit. 10. The Plaintis have demonstrated that at the time the court issued its orders of 3.6.2021, the 1st Defendant had not disclosed that he had already sold the suit property to the 2nd Defendant on 18.11.2020. Nevertheless, in ordering the release of the sh.5 million as mesne prots, the court would in essence be dealing with a substantive prayer in the plaint (prayer d). 11. On the issuance of injunctive orders and an order for the rent to be deposited in court, this court notes that it is already dealing with the issue of contempt against the 1st defendant. The dispute will only be further convoluted if the court delves into the issue as to who is collecting rent at this stage. After all, the 2nd defendant has intimated that they have since parted with the possession of the suit premises. 12. Further, the court takes into account that the Plaintis have never taken possession of the suit property and they have not been in control of the rent proceeds. They did not demonstrate that they would suer injury that would not be compensated by way of damages. 13. The Plaintis also sought a mandatory injunction compelling the 2nd Defendant/its directors and agents to deposit into court the entire rental income collected from 1.6.2021 from the suit premises pending hearing an determination of this suit. The Plaintis did not demonstrate special circumstances to warrant issuance of a mandatory injunction at this interlocutory stage. See Silipet Properties Limited & another v Chege Mwaura & another [2017] eKLR. 14. The history of the litigation herein indicates that the plainti has strived to get orders for preservation of the suit properties through various applications as seen in the applications of 10.6.2017 and https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21768/eng@2023-11-21 2

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11.11.2019 and now the current application. However, in the ruling of 3.6.2021, the court directed the parties to focus on the disposal of the main suit. This is the position I emphasize so that the dispute is once and for all brought to a closure. See my decision in Lawrence Kinyua Mwai v Nyariginu Farmers Co Ltd & another [2019] eKLR. 15. In the nal analysis, the court declines to grant the orders sought in the application dated 26.7.2023. Instead, I hereby give orders that the suit shall not be alienated in any manner from today. Parties are hereby directed to focus on the main trial. Each party is to bear their own costs of the application. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 21ST DAY OF NOVEMBER, 2023 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of:Wangui holding brief for Mr. Mungai for Plainti Gatungo for 2nd Defendant Court Assistant: June https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21768/eng@2023-11-21 3

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