Mangira v Masanga

e. The cost of this application be borne by the respondent. 2. The application is premised on the grounds that the parties share a common boundary and the respondent has consistently and wrongfully planted trees on the boundary which trees have grown to the extent of interfering with the applicant’s enjoyment of his suit property. The applicant also maintains that the respondent has maliciously prevented him from erecting a barbed wire fence next to the suit boundary and stated that eorts to resolve the matter amicably has been met with hostility. The applicant stated that the he has a established a prima facie case with a likelihood of success and that this court has jurisdiction to grant the orders sought. 3. The adavit in support of the application sworn by the applicant replicates the contents of his application except to add that he deposed he served the respondent with a demand letter her asking to cut down the trees and that her demands were ignored. She also deposed that her eorts to resolve the issue with the help of the area chief have proved futile. She annexed to the adavit, a sale agreement, photographs of the trees alleged to be on the suit boundary, poles and barbed wire and a letter from the chief. Response 4. There was no response to the application Issues, analysis and determination 5. The sole issue for determination is this application is whether the application is competent, considering that there are no pleadings on record. 6. The applicant seeks injunctive reliefs under order 40 of the Civil Procedure Rules, 2010. However, the application is not anchored on any pleading. In Mutwol v Mutwol & 4 others (Environment & Land Case 37 of 2020) emphasized the importance of pleadings and stated that: I begin this analysis by restating the law regarding the importance of pleadings. It is trite that pleadings form the backbone of any case. Often courts have emphasized the point that many parties lose cases for reasons of poorly drafted pleadings. This is because a court is not permitted to redraft parties’ pleadings to salvage either a case or claim that has not been put forth well or a defense not articulated properly. To do so would invite the court to descend into the arena of parties and take the parties’ sides in the adversarial system as ours where it is supposed to be an impartial arbiter. What should always be left clear to all is that justice must not only be done but be seen to be done. One of the ways of doing so is to steer on course and listen to parties’ cases while comparing the law and facts presented, however painful it may be for a party who has not followed the law. This includes failure to draft pleadings properly to capture a party’s case. Why? Because drafting of pleadings is not a triviality. It also is not a defect that can be cured by or through the application of Article 159 of the Constitution of Kenya because it is not just a procedural defect but a substantive one. 7. In Ondieki v Omoi & 3 others (Civil Appeal E114 of 2023) [2025] KEHC 1474 (KLR) the court expressed itself as follows: 34. In absence of pleadings, evidence, if any is produced, will still not be considered for such evidence will not support the content of the case before the court. In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18645/eng@2025-12-17 2

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Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in an election petition: In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is armed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’” 8. In the instant case there is no plaint or even a claim of any sorts. Only the application was led. Thus, there is no cause of action, and there is nothing to predicate upon the orders sought at this “interlocutory stage”. For orders of injunction to issue a party must establish that there is a prima facie case, with a probability of success [emphasis mine], that can go for trial. The court and the adverse party must look forward to a stake which may or may not succeed, and that is a cause of action. Thus, there must be an anticipated trial in which the prima facie case established at the interlocutory stage is tested and proven. That can only be if there is a claim or cause of action alleged against a defendant or respondent. A prima facie case cannot exist in vacuo. 9. The denition and import of a prima facie case was aptly given by the Court of Appeal in Prima facie case dened by the Court of Appeal in the case of Mrao Limited v First American Bank of Africa (2003) eKLR as; “ 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 right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 10. Thus, deducing the real meaning of a prima facie case from the holding in the Mrao case (supra), if a party prays for an interlocutory injunction in a non existent cause of action, such as the instant matter, the adverse party will not be given chance to explain or rebut the alleged infringement of the other party’s right. 11. The principles on issuance of orders of injunction were well set out in the seminal case of Giella vs Cassman Brown Co Ltd (1971) EA 358 as follows:“ 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 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." 12. These principles were restated in Nguruman Limited vs Jan Bonde Nielsen & 2 Others, CA no 77 of 2012, as follows:“ In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a) establish his case only at a prima facie level, (b) demonstrate irreparable https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18645/eng@2025-12-17 3

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injury if a temporary injunction is not granted, and (c) allay any doubts as to (b) by showing that the balance of convenience is in his favour. 13. It is clear from the above two decisions of my colleague judges that the three pillars on which the foundation of any order of interlocutory injunction rests support each other in sequence. However, the very rst pillar presupposes that it is built on a rock and not sinking sand or in the air lest it be as the metaphoric English saying on wishful thinking of “building castles in the air”. 14. The court nds that the application is incompetent since it is not anchored on any pleading. It is comparable to the Biblical analogy of a house built on sinking sand or. Such a house lacks a foundation and must ultimately sink. Such is the fate of the instant application which is hereby dismissed with costs to the Respondents, if at all they opposed the application. 15. The le is closed. 16. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 17TH DAY OF DECEMBER, 2025. HON. DR. IUR NYAGAKA JUDGE In the presence of, None of the parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18645/eng@2025-12-17 4

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