Kwale Development Company Limited v Said

4. c. That an interim injunction do issue against the Defendant by himself, his servants and/ or agents from selling, oering for sale, subdividing, advertising, alienating, transferring by public action or private treaty, leasing, letting, charging or otherwise interfering with all that parcel of land known as Kwale/Tiwi Beach Block/90 pending the hearing and determination of the suit herein. d. That costs of this application be provided for. The application was premised on the grounds, testimonial facts and the averments made out under the 12 Paragraphed supporting adavit of Nurein Tahir Sheikh together with annexetures marked as “NTSS” annexed hereto. He averred as follows:a. He was one of the Directors of the Plaintis’ company and hence conversant with the facts of this case and competent to swear this adavit. b. The Defendant was the son of the late Tahir Sheikh Said who was a majority shareholder of the Plainti company which owned the land known as Land Reference Numbers “Kwale/Tiwi Beach Block/90 (Hereinafter referred “The Suit Property”). c. The Plainti’s Directors had recently discovered that the Defendant had been selling the company assets and were apprehensive that the suit property was to be sold as the Defendant was in the process of sub - dividing the suit property for sale to third parties. d. The Defendant had further transferred another parcel being Kwale/Diani Complex/471 to a third party without the lawful authority of the Plainti. e. Attempts to stop the Defendant’s actions had proved futile and necessitated the instant suit and application. f. The only recourse was to evict the Defendant whose continued occupation of the suit land posed a threat of it being sold to unsuspecting third parties to the detriment of the Plainti. g. If the orders were not granted the Defendant would proceed with the sale of the suit property rendering it nugatory and a mere academic exercise. h. The application and the prayers sought to be granted accordingly. III. The response by the Defendant/Respondent 5. As indicated, the application was opposed vide a 14 Paragraphed Replying Adavit sworn by Jamal Tahir Sheikh Said, the Defendant/Respondent. He averred that:a. He was the Defendant/Respondent herein, competent to swear this Adavit in response to the Plainti/Applicant’s application. b. the late Tahir Sheikh Said was a majority shareholder of the Plainti company and was his biological father. While the Applicant’s directors, Nurein Sheikh Tahir was his sibling, Isha Tahir Sheikh Ahmed was his Stepmother. c. Upon his father’s demise no Grant of Probate had been issued and the Applicant has deliberately failed to disclose this to mislead this Honourable Court. d. He had resided on the suit property for over 12 years with his father’s consent and during his lifetime and was thus a beneciary of his estate. That his occupation was lawful and rooted in familial and proprietary rights. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18642/eng@2025-12-09 2

page 2 of 8

e. The Applicant had not met the conditions for grant of injunctive orders as provided for under Order 40 Rule 1 of the Civil Procedure Rules and the test in “Giella Versus Cassman Brown & Co Ltd [1973] EA358. That further the Applicant’s reliance on unveried photographs and undated titles fails to prove any illegal conduct. f. The Applicants claim on the suit land was is unsubstantiated. They had not provided an ocial search from the Kwale Land Registry as required by Law. They had not provided to prove ownership. g. The Certicate of Lease annexed dated 5th December 2011 was 13 years old and had not been corroborated by a recent search. Further that the allegation that the Respondent had sold certain domestic animals were also unsubstantiated. h. The dispute revolved around an estate of a deceased person and no Grant of Probate had been made available. This was clear intermeddling of the estate of the deceased contrary to the provision of Section 45 of the Law of Succession Act, Cap. 160. i. The Respondent further stated that the court lacked jurisdiction to determine the matter as the suit was a succession dispute. IV. Submissions 6. On 8th July 2025, in the presence of all the parties, they were directed by the Honourable Court directed to canvass the matter by way of written submissions. 7. Unfortunately, at the time of writing this ruling, none of the parties had complied with the said order. Nonetheless, upon the lapse of the stipulated timeline, Court decided to render its ruling on its own merit accordingly. V. Analysis and Determination 8. I have keenly assessed the led pleadings by the parties, the relevant provisions of the Constitution of Kenya, 2010 and statures. 9. In order to arrive at an informed, just, fair and reasonable decision, the Court has framed the following three (3) issues for its determination. These are: a. Whether the Notice of Motion application dated 25th February 2025 has met the threshold for granting temporary injunctive orders. b. Whether the parties were entitled to the reliefs sought. c. Who will bear the Cost of the application? ISSUE No. a). Whether the Notice of Motion application dated 25th February 2025 met the threshold for granting temporary injunctive orders. 10. Under this Sub – heading the Honourable Court will be examining whether the application by the Plainti/Applicant herein meets the required standards for granting the temporary injunctive orders as required by Law. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law. Which provides as follows: Order 40, Rule 1 Where in any suit it is proved by adavit or otherwise— https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18642/eng@2025-12-09 3

page 3 of 8

11. a) 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. Basically, the principles applicable in an application for an injunction were laid out in the celebrated case of “Giella –Versus- Cassman Brown & Co Limited (1973), where it was stated: “ First an Applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 12. The three ( 3 ) conditions set out in “Giella case (supra)”, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of:- “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR”: “ These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. 13. Similarly, in the case of:- “Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86, it was stated that:“ If the Applicant establishes a prima facie case that alone is not sucient basis to grant an interlocutory injunction, the court must further be satised that the injury the respondent will suer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If primafacie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”. 14. In establishing the rst condition of prima facie case, this Honorable Court guided by the denition melted down in the famous case “ Mrao Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125” of: -, “So, what is a primafacie case, I would say that in civil case sit is a case in which on the material presented to the court a tribunal properly directing itself would conclude https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18642/eng@2025-12-09 4

page 4 of 8

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” 15. In the case of “Mbuthia – Versus - Jimba credit Corporation Ltd 988 KLR 1”, the Court held that:“ In an application for interlocutory injunctions, the court is not required to make nal ndings of contested facts and law and the court should only weigh the relative strength of the party’s cases.” 16. The court has had the chance to peruse the list of documents relied upon by the applicant. From it, it is evident that the suit property - Kwale/Tiwi Beach Block/90 is registered in the name of the Applicant herein as was issued on 5th December 2011. I have further perused the title deed to the parcel Kwale/ Diani Complex/471 which was registered and issued in the names of the deceased Tahir Sheikh Said on 6th July 1992, however a second title over the same property has been presented before court and is in the names of the Defendant herein. The title was issued in the year 2015. 17. The Honourable Court notes that the Defendant has intimated to court that a succession cause has not been initiated before Court over the estate of the deceased. With this in mind, the question is how then did the Defendant transfer the property to his names without the proper due process of succession being undertaken where a Grant ought to be obtained and the estate of the deceased properly administered to the beneciaries? The court opines that a prima facie case has been established with this set of facts at hand. 18. Having found that the Applicant has established a prima facie case to warrant grant of temporary injunction, this Court will proceed to make a nding and address that other two conditions required. This is guided by the decision in the Court of Appeal case of “Kenya Commercial Finance Co. Limited – Versus - Afraha Education Society [2001] 1 EA 86, [supra] cited with approval by Gitumbi, J. in the case of “Joseph Wambua Mulusya – Versus - David Kitu & Another (2014) eKLR” observed as follows: -“The sequence of steps to be followed in the enquiry into whether to grant an interlocutory injunction is sequential so that the second condition can only be addressed if the rst one is satised”. 19. On the issue whether the Plainti/Applicant will suer irreparable harm which cannot be adequately compensated by an award of damages, the Applicant must demonstrate that it is a harm that cannot be quantied in monetary terms or cannot be cured. The plainti has stated that the deceased being a majority shareholder held some properties on its behalf, with the transfer of the second property namely Kwale/Diani Complex/471 to the defendant. 20. The Plainti has further attached photos showing the Defendants activities on the suit property and which indicate the intention to dispose of the same. The court in the case of:- “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (2018) eKLR” dened 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 sucient. 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.” Therefore, the court pines that indeed the Plainti/Applicant has demonstrated this second limb as laid down in the “Giella’s case”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18642/eng@2025-12-09 5

page 5 of 8

21. Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in their favour. In the case of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (Supra)” which dened the concept of balance of convenience as: “ The meaning of balance of convenience will favour of the Plainti is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintis, the inconvenience caused to the Plainti 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 Plaintis 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 Plainti who will suer. In other words, the Plainti 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”. 22. In the case of “Paul Gitonga Wanjau – Versus - Gathuthis Tea Factor 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 suer 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 suer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is signicant irreparable harm, it may inuence 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.” ISSUE No. b). Whether the parties were entitled to the reliefs sought. 23. From the pleadings on record, the balance of convenience tilts in the favour of the Applicant. The decision of “Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR” where the learned judge further elaborated 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.” 24. Bearing this in mind, I am convinced that there is a lower risk in granting orders of temporary injunction than not granting them, as I wait to hear the suit on its merits. This is especially so because I have not had opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the claim of the Applicant or had the benet of hearing the parties fully ventilate their respective cases and it will be in the interest of both the Applicant and the Respondent that the suit property is preserved until the hearing and determination of the suit. 25. In the case of:- “Robert Mugo wa Karanja – Versus - Ecobank (Kenya) Limited & Another [2019) eKLR” where the court in deciding on an injunction application stated; “ circumstances for consideration before granting a temporary injunction under the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18642/eng@2025-12-09 6

page 6 of 8

or that the Defendant threatens or in tends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...” 26. In view of the foregoing, it is this courts ndings that the Plainti/Applicant has met the criteria for grant of orders of temporary injunction. ISSUE No. c). Who will bear the Cost of the application? 27. It is well established that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of the legal action or proceedings in any litigation. The proviso of Section 27 (1) of the Civil Procedure Act, Cap. 21 provides that costs follow the event. By event it means the result or outcome of the legal action. 28. In the instant case, from the given facts and circumstances, the Plainti has made a case for issuance of the orders herein, it is just reasonable that the applicant is awarded costs of the application and the court thus orders so. VI. Conclusion and disposition 29. In conclusion, having caused an indepth analysis of the issues framed herein, the Honourable Court based on the principles of Preponderance of Probabilities and the Balance of Convenience hold that the Plainti has met the threshold for grant of the orders sought. Thus, it proceeds to make the following orders: a. That the Notice of Motion application dated 25th February 2025 be and is hereby found to be meritorious and hence allowed. b. That an interim injunction order be and is hereby issued against the Defendant by himself, his servants and/ or agents from selling, oering for sale, sub - dividing, advertising, alienating, transferring by public action or private treaty, leasing, letting, charging or otherwise interfering with all that parcel of land known as Land Reference Numbers Kwale/Tiwi Beach Block/90 pending the hearing and determination of the suit herein. c. That for expediency sake there be conducted Pre – trial Conference on 18th March 2026 pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There be a hearing on 14th July, 2026 preferably through physical means. d. That costs of this application be and is hereby awarded to the Plainti/Applicant. It is ordered accordingly. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 9TH DAY OF DECEMBER 2025 ……………………………… HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT KWALE. Ruling delivered in the presence of: Mr. Daniel Disii, the Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18642/eng@2025-12-09 7

page 7 of 8

Mr. Mramba Advocate holding brief for Mr. Waziri for the Plainti/Applicant. No appearance for the Defendant/Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18642/eng@2025-12-09 8

page 8 of 8