Eames v Lugwemwandazi & 2 others (Environment & Land Case E007 of 2023) [2024] KEELC 975 (KLR)

thereon, remining on the property, or otherwise interfering with the property or the plaintifi’s quiet enjoyment and possession of the property. 5. That costs of this application be provided. 2. Despite service on the defendants as evidenced by the afidavit of service sworn on 9th January 2024 by one Michael Mutinda, all the defendants have failed to file and serve a response. The application is therefore undefended. 3. The issue for determination is whether the main prayer of a temporary injunction can be issued or not? The prayer for temporary injunction is well discussed in the celebrated case of Giella v Cassman Brown (1973) EA 358. In Nguruman Limited v Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR the Court of Appeal held that; " in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour. These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”. 4. The plaintifi claims that she is he registered owner of all that parcel of land known as L.R No. Mombasa/Mainland South/Block I/338 situated at Shelly Beach, Likoni and she has produced a certificate of lease dated 24th November 2011as proof of leasehold for a period of 50 years commencing on 1st January 2004. Section 26 of the Land Registration Act states as follows: (1) (2) 5. The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— a. on the ground of fraud or misrepresentation to which the person is proved to be a party; or b. where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.” Furthermore, the plaintifi attached a history of how she was able to acquire the property from the original owner. The only objection on record is found as annexure L-8 which is a response by an advocate for the 3rd defendant. He states that the defendant has lived with his family on the suit property for over 20 years and that one Lucy Wanjiru (deceased) invited him on the suit land. Although, the plaintifi alleges that the counsel was referring to her, the court is apprehensive and will only deal with this during trial. I therefore find that the plaintifi has a prima facie case. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/975/eng@2024-02-27 2

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6. On temporary injunctions, the plaintifi is also required to show irreparable injury and I am guided by Pius Kipchirchir Kogo v Frank Kimeli Tenai (2018) eKLR where court held; " Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself suficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” 7. The plaintifi in his supporting afidavit has alleged that the County Government of Mombasa claim that her leasehold has expired and they have a tendency of conspiring with ‘professional’ squatters within the area where the suit property is located. She is apprehensive that if the suit property is left vacant, it is highly possible it will be invaded by the squatters as her perimeter wall has already been demolished. According to the photographs L-9 the suit property is vacant the buildings having been demolished and vandalized. On the issue of the balance of convenience In Pius Kipchirchir Kogo case (Supra) the court held; " The meaning of balance of convenience will favour of the Plaintifi' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintifis, the inconvenience caused to the Plaintifi would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintifis to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintifi who will sufier. 8. In other words, the Plaintifi has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”. 9. I find that the balance of convenience tilts in favour of the plaintifi in this case. I find that her application is merited and order that the status quo be maintained pending the hearing and determination of this case. Costs of the application to be in the cause. 10. It is so ordered. DELIVERED, DATED AND SIGNED AT MOMBASA THIS 27TH DAY OF FEBRUARY 2024. N.A. MATHEKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/975/eng@2024-02-27 3

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