Wasonga v Ali & another

v. That the 2nd Respondent, without any lawful justication, has allowed unknown persons to enter freely into the suit property and to do damage to the same; vi. That the two-storey structure erected was built on the suit property without obtaining the necessary approvals in accordance with the law; and vii. That the construction works endangers the users of the adjacent footpath next to the suit property and the excavation works have impaired the safety as well as those of neighboring properties. 3. Ruth Mukagati (the 2nd Respondent) is opposed to the application. In her Replying Adavit sworn on 28th April 2025, the 2nd Respondent avers that she knew the property belonged to the 1st Respondent. She further avers that she has carried out renovations and extensions on the house for a period of over 2 years with the permission of the 1st Respondent who sold the suit property to herself. The 2nd Respondent denies that she has violated the Petitioner’s Constitutional rights. 4. I have carefully perused and considered the application as well as the response thereto by the 2nd Respondent. I have similarly perused and considered the submissions placed before the court by the Learned Advocates representing the parties. 5. By this application before the court, the Petitioner prays for an order of temporary injunction to issue against the Respondents, their servants and/or agents restraining them from carrying out any construction works or making any modications on House No. 21 erected on LR No. CR 19397 (Plot No. MN/1/4850) located in Ratna Estate, Mtopanga in Mombasa. In addition, the Petitioner in particular urges the court to restrain the 2nd Respondent, her agents and/or servants from trespassing, entering into and/or interfering with the said property. 6. In opposing the application, the 2nd Respondent avers that she had purchased the suit property from the 1st Respondent. It is further her case that she carried out the developments on the property with the consent of the 1st Respondent and that the property belonged to the Petitioner. 7. In regard to temporary injunctions, Order 40 Rule 1 of the Civil Procedure Rules provides as follows: “ Where in any suit it is proved by adavit or otherwisea. That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or b. That the Defendant threatens or intends to remove or dispose of his property in circumstances aording reasonable probability that the Plainti will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal, or disposition of the property as the court thinks t until the disposal of the suit or until further orders.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18217/eng@2025-12-11 2

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8. The conditions for the grant of an interlocutory injunction were long set out by the Court of Appeal for East Africa in the celebrated case of Giella –vs- Cassman Brown (1973) EA 358 where Spry VP held as follows: “ The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 9. As to what would amount to a prima facie case in a matter such as this, the Court of Appeal oered guidance in the case of Mrao –vs- First American Bank of Kenya Limited & 2 Others (2003) KLR where it was held that: “ ......a prima facie case in a Civil Application includes but is not conned to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 10. In the matter before me, it is the Petitioner’s position that she is the registered proprietor of the suit property and that she has leased the same to the 1st Respondent for a period of two years eective 1st August 2022. In support of that position the Petitioner has attached a Certicate of Postal Search dated 24th January 2025 which shows that she is indeed the registered proprietor of the property. In addition, the Petitioner has annexed a copy of the Lease Agreement between herself and the 1st Respondent. 11. The 2nd Respondent does not deny that the Petitioner is the registered proprietor of the suit property. She states as follows at paragraph 4 to 6 of her Adavit in Reply: 12. “ 4. That in response to paragraph 2 of the supporting adavit, I would like to state that all along I never knew that the property belonged to the Petitioner herein as the 1st Respondent had made me believe that the property was his; 5. That in response to paragraph 3 and 4 of the supporting adavit, I would like to state that I did the renovations and extensions on the house over a period of two (2) years having been given permission by the 1st Respondent who purportedly sold the suit property to me sometimes in July, 2022; and 6. That in response to paragraph 4 of the supporting adavit, I would like to state that I never knew that there was a lease Agreement between the Petitioner and the 1st Respondent until when she came to the suit property and gave it to me.” Those words are a clear indication to me that if indeed the 2nd Respondent had no knowledge that the suit property belonged to the Petitioner, she was now fully in the know and should have taken steps to mitigate her circumstances. If she did not know the 1st Respondent was a mere Lessee of the suit premises, the 2nd Respondent was now in possession of the Lease Agreement executed between the Petitioner and the 1st Respondent on 1st August 2022. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18217/eng@2025-12-11 3

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13. At Clauses h, l and p of the Lease Agreement, the parties agreed as follows: “ h. The Lessee shall not erect any structures in the premises without the consent of the Lessor; l. The Lessee shall not make any alterations or additions to the premises or drive any nails, screws, bolts, wedges or other fasteners in the oors, walls, doors or ceiling without the consent of the Lessor in writing; and p. The Lessee shall not sublet the said premises during his period of term.” 14. It was self-evident that the 1st Respondent had contravened those terms of the lease. That must explain his failure to respond to this application. The 1st Respondent had not only sublet the premises to the 2nd Respondent but the 2nd Respondent had gone ahead, from her own admission, to construct a two storey structure and to excavate the premises. 15. Arising from the foregoing, I was persuaded that the Petitioner has demonstrated a clear and unmistakable right which is directly threatened by the acts of the Respondents. The 1st Respondent had not only acted in contravention of the Lease which has since expired but the 2nd Respondent had on the basis of purported misrepresentations made to herself trespassed onto the property and was now engaged in acts that can only damage or waste the property. 16. In the circumstances herein, I am persuaded that the Petitioner stands to suer loss and damage that could not be adequately compensated by an award of damages. It was further evident to me that the balance of convenience tilts in her favour as the registered proprietor of the premises the Lease between herself and the 1st Respondent having expired. 17. In the premises, I nd merit in the Motion dated 13th February 2025 and I allow the same in terms of prayers 4 and 5 thereof with costs. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 11TH DAY OF DECEMBER, 2025. ....................................................... J. O. OLOLA JUDGE In the presence of: Ms. Firdaus Court Assistant. Mr. Kioko Advocate for the Petitioners Mr. Bunde Advocate the 2nd Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18217/eng@2025-12-11 4

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