Rimberia v Miriti (Enviromental and Land Originating Summons E016 of 2023) [2024] KEELC 6414 (KLR)

2. The application is based on the ground set out on the face of the application and the supporting afidavit dated 19th December 2023 sworn by Gerald Mwiti Rimberia the applicant herein. The applicant has deposed that on 2nd November, 2006 he entered into a sale agreement with the defendant/ respondent to purchase the entire land known as plot number 540 Nyayo Settlement Scheme. The applicant has annexed a copy of the sale agreement marked GMR 1. 3. The Applicant avers that the purchase price was Kshs. 180,000/= which was payable under clause 1 of the said agreement. The Applicant has annexed a copy of the acknowledgement receipts duly signed by the respondent marked GMR 2. 4. The Applicant avers further that he was granted vacant possession in 2006 and has been utilizing the land up to date and that his own children have also settled on the land. The applicant annexed photos of the development marked GMR 3. 5. The Applicant states that at the time of purchase, the defendant/respondent was recorded as the owner of the subject land. ThE applicant states that he has sired and raised children on the said land, settled adult children therein as such he was shocked as to why the defendant/respondent wants to renege on their agreement made over 20 years ago. 6. The Applicant states that the defendant/respondent has threatened to evict his family from the said land with a view of reselling the same at the current market rates in a bid to render the applicant’s family destitute. The Applicant is apprehensive that the defendant might actualize her verbal threats and carry oUT the eviction thus occasioning him irreparable harm in relation to acquisition of his interest. That if the court does not come to his aid and restrain the respondent from further dealing with the suit parcel of land, the applicant will be rendered destitute and will continue to sufier due to the hardship caused by the actions of the respondent. That unless the orders sought are granted, the suit as well as the application will be rendered nugatory. 7. The application is opposed by the defendant who filed a replying afidavit dated 8th July, 2024 wherein she avers that she is the legitimate owner of the suit property having been issued with the title deed on 9th August, 2016.The respondent has annexed a copy of the said title deed marked “EKM1”. The respondent states that since being issued with title deed on 9th August 2016 she has never sold nor transferred the suit property to anyone, let alone the plaintifi who she termed a total stranger to her. 8. The defendant further states that it is her son who utilizes and lives on the suit land and that the plaintifi had visited the property demanding that the defendant’s son vacates therefrom. The defendant states sometimes she visits her son on the said land and she has never met the plaintifi on the suit land as her son is the one who has been in occupation and farming on the parcel of land to date. The respondent has annexed photographs marked “EKM 2” of the developments allegedly done by her son on the land. 9. The defendant states that the plaintifi has never been in uninterrupted possession of her property for a period of 12 years as alleged or at all and accused the plaintifi of misleading the court adding that no evidence has been tendered to prove the plaintifi’s allegations. The defendant accused the plaintifi of lying and forging the sale agreement and thereafter proceeding to present the same as evidence before the court. The defendant states that she was not surprised that the plaintifi conspired with brokers to take away her land illegally. 10. The defendant avers that prior to filing of this suit, the plaintifi had gone ahead and filed a similar suit vide Meru ELC E002 of 2020 OS secretly whereof he got orders illegally and presented the same to the land’s ofice at Meru and changed the ownership of the suit property without the defendant’s knowledge. The defendant states that in the month of February, 2023, her son informed her that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6414/eng@2024-10-03 2

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plaintifi had visited her land demanding that the defendant’s son vacates from the suit land since the plaintifi was the new registered owner of the said parcel of land. The defendant has annexed a copy of the oficial search and title deed marked ‘EKM 3”. 11. The defendant states that she never received any monies from the plaintifi and that the acknowledgement is a forgery. She challenged the plaintifi to produce the cheque counterfoil and bank statement. 12. It is the defendant’s contention that the plaintifi’s suit and application are untenable and urged the court to dismiss the same with costs. 13. The application was canvassed by way of written submissions. The applicant filed his submissions dated 4th May 2024 through the firm of Mwangi E.G & co. advocates while the respondent did not file any submissions. 14. The plaintifi gave brief facts of the case and identified two issues for determination: Whether the plaintifi has satisfied the condition upon which an injunction can be granted and what reliefs should the court grant. 15. Regarding the first issue the applicant relied on the precedent set out in Giella Vs Cassman Brown (1973) EA 358 and the case of Mrao Ltd Vs First American Bank of Kenya and 2 others (2003) eKLR and submitted that he has established a prima facie case with a probability of success. The applicant submitted that he has produced a sale agreement as well as acknowledgement notes to prove the purchase of the land. The plaintifi’s case is that he is the absolute and indefeasible owner of the suit property having been sold the same by the defendant in 2006 and that he has been in occupation and use since then. 16. It is also the applicant’s submission that in the event the injunction is not granted as sought, he stands to sufier irreparable and continuous injury which would not be adequately compensated by an award of damages. The applicant therefore implored the court to allow the application with costs. 17. The plaintifi further submitted that since he has been in possession, use and occupation of the suit property since 2006, the balance of convenience tilts in his favour. Analysis and Determination 18. Having considered application, the response and the submissions of the plaintifi alongside the legal authorities relied on, the issue for determination is whether the Plaintifi has met the criteria for the grant of an order of temporary injunction pending the hearing and determination of this suit. 19. The guiding principles for the grant of orders of temporary injunction are well settled and are set out in the decision of Giella Versus Cassman Brown (1973) EA 358. This position has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where 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, demonstrate 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6414/eng@2024-10-03 3

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are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially”. 20. Consequently, the Plaintifi ought to, first, establish a prima facie case. The plaintifi/Applicant submitted that he has established a prima facie case and relied on the judicial decision of Mrao Ltd Versus First American Bank of Kenya Ltd (2003) EKLR in which the Court of Appeal gave a determination on a prima facie case as follows-; “ ... in civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 21. In support of his application, the Plaintifi has attached copies of an agreement for sale and acknowledgement receipt and photographs of development. The applicant submitted that he is the absolute indefeasible owner of the suit property for the reason that the defendant/respondent sold the suit land to the plaintifi way back in 2006 and paid the consideration in full. That since 2006 to date, the plaintifi/Applicant and his children are in use and occupation of the land in question. That the issue of possession and ownership after purchase has not been rebufied thus far and therefore he has a prima facie case with a probability of success. 22. Secondly, the Plaintifi has to demonstrate that irreparable injury will be occasioned to him if an order of temporary injunction is not granted. The judicial decision of Pius Kipchirchir Kogo Vs Frank Kimeli Tenai (2018) eKLR provides an explanation for what is meant by irreparable injury and it states; “ 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.” 23. The Plaintifi has deposed that if the orders are not granted his family and him will be evicted. 24. Thirdly, the Plaintifi has to demonstrate that the balance of convenience tilts in his favour. The case of Pius Kipchirchir Kogo Vs Frank Kimeli Tenai (Supra) defined the concept of balance of convenience as follows-; “ The meaning of balance of convenience in favour of the Plaintifi' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintifi, 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 Plaintifi 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. 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”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6414/eng@2024-10-03 4

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25. In the case of Paul Gitonga Wanjau Vs Gathuthis Tea Factory Company Ltd & 2 others (2016) eKLR, the court dealing with the issue of balance of convenience expressed itself thus;“ Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would sufier if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will sufier the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may infiuence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.” 26. The Plaintifi/Applicant contends that the balance of convenience tilts in his favour because he has been in possession and use of the suit land from the year 2006. 27. On her part, the respondent admitted that the land is now registered in the name of the applicant. She has exhibited a certificate of search and title deed in the applicant’s name. The respondent, however, faults the applicant for using illegally obtained orders to efiect the registration. 28. In the case of Amir Suleiman Vs Amboseli Resort Limited [2004] eKLR the court ofiered further elaboration on what is meant by “balance of convenience” and stated: “ The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.” 29. Bearing this in mind, I am convinced that there is a lower risk in granting orders of temporary injunction than not granting them. There is need to maintain status quo. 30. In Robert Mugo Wa Karanja Vs Ecobank (Kenya) Limited & Another [2019) eKLR the court in deciding on an injunction application stated; “ Circumstances for consideration before granting a temporary injunction under Order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...” 31. In the instant case, I am convinced that if orders of temporary injunction are not granted, the property in dispute might be in danger of being dealt in the manner set out in the application and apprehended by the Plaintifi/Applicant. 32. In view of the foregoing, I find that the Applicant has met the criteria for grant of orders of temporary injunction. 33. In the result the application dated 19th December, 2023 has merit and the same is allowed. 34. Each party to bear his /her own costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6414/eng@2024-10-03 5

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35. Orders accordingly. DATED, SIGNED AND DELIVERED AT MERU THIS 3RD DAY OF OCTOBER, 2024. In the presence of: Court Assistant – Tupet Karanja for plaintifi/applicant MS Kithinji holding brief for defendant/respondent C.K YANO ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6414/eng@2024-10-03 6

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