Githere (Suing as the Personal Representative of the Estate of John Moffatt Githere) v Scion Healthcare Limited & 3 others (Land Case E007 of 2025) [2025] KEELC 6414 (KLR)

2. The application is premised on grounds on its face and on the Plaintifi’s supporting afidavit. She avers that she is the registered owner of LR No. 209/11026 pursuant to a Grant issued in Kiambu Succession Cause No. 405 of 1993 with respect to the estate of her late husband, John Mofiat Githere. She claims that in November 2009, she instructed her advocates to lodge an Assent of the suit property in her favour in terms of the aforementioned Grant. Further, that subsequently, her lawyers surrendered the original title to the suit property to the Land Registry. She contends that after several follow-ups, the Land Registry informed her lawyers that a copy of the title document in the Deed File to the suit property could not be traced and advised them that the file needed to be reconstructed. She avers that she subsequently filed a Deed of Indemnity dated 5th March 2010 for the reconstruction of the Deed file. Further, that around the same time, the Land Registry informed her that the original title in the Deed file had resurfaced, however, the Assent, the original title that had been surrendered and the Deed of Indemnity could not be traced thus she needed to apply for a provisional title. 3. She explains that upon applying for a provisional title, the Land Registry issued a gazette notice on issue of a provisional certificate of title and published it in the Kenya Gazette of 11th October 2019 and later issued her with a provisional title on 26th October 2023. She reiterates that she then instructed her advocates to apply for replacement of title as it had been gazetted on 11th February 2022 amongst those properties ready for conversion under the Ardhisasa system. She claims her application for replacement was rejected on the basis that there existed another title to the property with a difierent IR Number 194471 purportedly registered in the 1st Defendant’s name and the 2nd Defendant had purportedly secured a Charge on the suit property. Further, a Search revealed that the purported title in the name of the 1st Defendant was registered on 16th November 2017 in the name of William Wako Tari and Abdullahi Mohammed and was issued pursuant to a Deed Plan No. 142888 but records indicate that the aforementioned Deed plan is registered with respect to another property identified as LR No. 209/11017. 4. She contends that she had always enjoyed quiet possession of the suit property but when she made a physical visit sometime in the year 2023, she found that strangers had trespassed thereon and erected a permanent building of five (5) fioors, which operates as a commercial hospital operated by the 1st Defendant. She further claims that the suit property is purportedly registered by the 3rd Defendant in favour of the 1st and 2nd Defendants on account of fraud. 5. The application is opposed by the 1st Defendant vide the replying afidavit of its Chief Executive Oficer, one Augustine Kinyua. He avers that the 1st Defendant is the registered proprietor of LR No. 209/11026, which it purchased from William Wako Tari and Abdullahi Mohammed, after conducting due diligence. Further, that the 1st Defendant was issued with title on 6th August 2018 and has invested a substantial amount of money in the development of a modern medical facility on the suit property, which is serving the public. 6. He pleads that if orders sought are issued, it shall cause irreparable losses and inconvenience patients. He also confirms that the 1st Defendant secured credit facilities from the 2nd Defendant using the title to the suit property and contends that the Certificate of Confirmation of Grant, which the Plaintifi relies on, is not evidence of ownership. 7. The 2nd Defendant opposed the application vide a replying afidavit sworn by Jackson Talibong, its acting Branch Manager, Harambee Branch. He points out that by a facility letter dated 11th June 2018, it was agreed that the 1st Defendant will ofier the suit property as security for financing of Kshs.16million. Further, that the 1st Defendant ofiered the suit property as further security for the 2nd Defendant bank to create a further legal Charge securing a further Kshs. 57 million. He avers that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6414/eng@2025-09-29 2

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2nd Defendant acted lawfully to create and perfect its securities, including conducting adequate due diligence, which demonstrated that the suit property belongs to the 1st Defendant. 8. He points out that the Land Survey Plan No. 142888 was verified on 30th September 2016 by the Director of Surveys as belonging to the suit property, LR No. 209/11026. Further, that the 2nd Defendant also conducted post registration due diligence, of which it commissioned M Zenith (Management) Valuers Limited to conduct independent inspections and valuations on 26th June 2023, which confirmed proprietary status to the 1st Defendant and the 2nd Defendant holding registered security interests over the suit property. He asserts that the Plaintifi will not sufier irreparable loss while the 2nd Defendant stands to sufier irreparable loss as the invalidation of its securities shall leave it exposed. 9. The 3rd and 4th Defendants did not file responses. 10. The application was canvassed by way of written submissions. Submissions 11. The Plaintifi submits that she has established a prima facie case as defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) KLR 125, having exhibited evidence that her deceased husband acquired ownership of the suit property in 1991 and she followed due process in obtaining a provisional title. Further, that she will sufier irreparable injury if the court declines to issue an injunction as she has an emotional attachment to the suit property, being that it forms part of the estate of her late husband and is part of his legacy to their children. She cites the case of Mbuthia v Jimba Credit Finance Corporation & Another [1988] eKLR to submit that the balance of convenience tilts in her favour. 12. On its part, the 1st Defendant submits that it has proven lawful ownership of the suit property while the Plaintifi makes vague historical claims of ownership and allegations of fraud, without formal certification of ownership. Further, that the Plaintifi’s interest (if any) is not proprietary, thus monetary compensation would sufice. It also submits that it is in actual possession, providing public health services thus the balance of convenience lies squarely in its favour, adding that it has also lawfully secured financial facilities thus disruption of its activities would result in irreparable loss and public harm to patients using its hospital. To buttress its submissions, the 1st Defendant relied on the case of Kenleb Cons Ltd v New Gatitu Service Station Ltd & Another [1990] KLR 557. 13. The 2nd Defendant submits that the Plaintifi has not established a prima facie case since she failed to demonstrate it infringed on her right. Further, that she failed to ofier this Court, Letters of Grant of Administration or any Limited Grant thus she has no authority to institute the suit. To this end, it relied on the following decisions: Mwakivonje (On his Behalf and on Behalf of the Estate of Kassim Ali Nzimu, Salim Mwatenga, Jumaa Vwinyu and Mwamoyo Moyo-Deceased) v Mwakaonje [2024] eKLR. 14. It also submits that the 1st Defendant has demonstrated that it is the current registered owner of the suit property while there is no evidence that mirrors the Land Register to suggest that the Plaintifi ‘s late husband had any proprietary rights over the suit property thus the Plaintifi has no recognized interest in law. Further, that since it exercised the requisite due diligence on the suit property, it does not owe the Plaintifi any rights and that contrary to her own apprehension, there is no evidence that the suit property is in danger of alienation thus damages are an adequate remedy to the Plaintifi as any errors on the Register, if proven, shall be compensated by the 3rd Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6414/eng@2025-09-29 3

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15. It further submits that it would be inconvenienced if an order of injunction is granted, as the same shall amount to a final order which shall be the equivalent of invalidating its legal securities over the suit property and shall prevent it from liquidating its financing to the 1st Defendant and in doing so shall subject it, to an unsecured loan without the benefit of a legally registered security. 16. To buttress its averments, the 2nd Defendant relied on the following decisions: Ngala v Kilumo & 5 Others [2023] eKLR, Gakuya v Gatuiku (Environment and Land Appeal E028 of 2023) [2025] KEELC 3972 (KLR) (20 May 2025) (Judgment) and Embakasi Properties Limited & Anor v Commissioner of Lands & Another [2019] eKLR. Analysis and Determination 17. Upon consideration of the instant Notice of Motion application including the respective afidavits and submissions, the only issue for determination is whether the Plaintifi has met the threshold to warrant the issuance of an interlocutory injunction to restrain the Defendants from the suit property pending the outcome of this suit. 18. The Plaintifi has sought for orders of injunction to restrain the Defendants from interfering with the suit property. She contends that she is the registered owner of LR No. 209/11026 pursuant to a Grant issued in Kiambu Succession Cause No. 405 of 1993 with respect to the estate of her late husband, John Mofiat Githere. Both the 1st and 2nd Defendants opposed the instant application with the 1st Defendant insisting it is the legal owner of the said land and operates a hospital thereon. The 2nd Defendant contends that the Plaintifi has no locus to bring this suit on behalf of the estate of her late husband as she failed to exhibit a grant of representation. However, I beg to disagree because as per annexure ‘NNG 2”, which is the Amended Certificate for Confirmation of Grant to the estate of John Mofiat Githere, it confirms that the Plaintifi Nancy Njoki Githere is indeed the Administrator of the said estate. 19. On the issue of whether the Plaintifi has established a prima facie case to warrant the orders as sought, I wish to rely on the principles espoused in the case of Giella v Cassman Brown (1973) EA 358 as well as the description of a prima facie case as stated in the case of Mrao Ltd v First American Bank Limited (2003) eKLR. 20. The Plaintifi contends that the suit property was owned by her late husband and upon obtaining a grant of representation, she procedurally surrendered the original title to the Land Registry, for the same to be transferred in her name. However, the said title including the Assent got lost in the Land Registry and she was advised that the Deed file had to be reconstructed. She explains that after gazettement of the lost title, she was unable to procure another title since the 1st Defendant held a title to the suit property. Further, that when she went to the suit property she found that the 1st Defendant had constructed a storeyed building thereon where it was operating a hospital. She hence seeks an injunction to restrain the 1st Defendant from operating a hospital on the suit property and to restrain the 1st and 2nd Defendants from transferring the said suit property, pending the hearing of the suit. 21. The 1st Defendant claims to be the lawful proprietor of the suit property and argues that an injunction would cause irreparable harm, as it would disrupt the hospital's operations while the 2nd Defendant contends that injunction would be a final order as it would invalidate its financial security interests. The 1st and 2nd Defendants also assert that the Plaintifi has no prima facie case as she did not establish proprietorship to the suit parcel. 22. Looking at the documents presented by both the Plaintifi and 1st Defendant, it seems there are two competing titles over the suit property. Further, I note it is the 1st Defendant who is in possession https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6414/eng@2025-09-29 4

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thereon and operating a hospital. It has also emerged that the suit property is currently Charged to the 2nd Defendant as a security for a loan issued to the 1st Defendant. 23. Insofar as I find that the Plaintifi has established a prima facie case to warrant the orders of interlocutory injunction, I opine that since there are two competing titles, noting that the 1st Defendant is currently in possession of the suit property and operating a hospital, an Order of injunction cannot issue at this juncture as this would amount to an eviction. It is my considered view that the current status quo should be maintained and the matter to be set down for hearing expeditiously. 24. In the circumstances, I find the instant Notice of Motion application compromised and will proceed to make the following Orders: a. Obtaining Status Quo be maintained where no party should interfere with the person in possession of the suit property. Further, there should be no further developments on the suit property nor dealings on the two titles. b. Each party to bear their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF SEPTEMBER, 2025 CHRISTINE OCHIENG JUDGE In the presence of: Atancha for 2nd Defendant Nyagaka for Nyamweya for 1st Respondent Mbugua Njoroge for Plaintifi Court Assistant: Joan ELC L CASE NO. E007 OF 2025 Ruling Page 16 of 16 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6414/eng@2025-09-29 5

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