Theuri v Gatiba & 2 others

2. e. The Honourable Court do order the 1st and 2nd Defendants to refund to the Plainti Ksh 2,400,000/= with interest at current market price. f. Costs of this suit and interest thereon. The Plainti’s suit is predicated on a claim that he purchased the parcel of land known as Kiambaa/ Kihara/1774 from the deceased in the year 2014 at a consideration of Kenyan Shillings Two Million Four Hundred Thousand (2,400,000). That late Philip Gatiba Buruno (deceased) who allegedly signed the transfer form and when the Plainti was at the transfer process, it was scuttled with a caution and restriction lodged by the 1st and 2nd Defendants. They are a wife and a son who is an administrator of the estate of late Philip Gatiba Buruno. The Plainti contends that the Defendants are in breach of the alleged transfer and thereby precipitating the instant suit. Contemporaneously with the Plaint the Plainti led a Notice of Motion application expressed to be brought under Order 51 Rule 1, 40 Rule 1, 2, 3, 4 and 8 of the Civil Procedure Rules, 2010 and seek the following substantive orders:a. Spent b. Spent c. That pending the hearing and determination of this application inter- parties, the Honourable Court be pleased to issue a temporary injunction restraining the 1st and 2nd Defendants/ Respondents either by themselves, their agents, employees and/or servants from disposing o, transferring, trespassing, encroaching, developing, alienating or any other manner dealing with the Applicant’s parcel of land known as Kiambaa/Kihara/1774. d. That costs of this application be provided for. 3. The Plainti’s application is inter alia based on the grounds that appear on the body of the application and the Adavit sworn in support by Peter Ndungu Theuri, on 30/08/2024. 4. The 1st and 2nd Defendants led a Defence to the Plainti’s Plaint where they deny the averments in the Plainti’s Plaint. 5. The 3rd Defendant led a Statement of Defence dated 15/11/2024 and denied the averments in the Plaint. 6. The 1st and 2nd Defendants led a joint Replying Adavit in opposition to the Plainti’s Notice of Motion sworn on 30/10/2024. The Replying Adavit was sworn by 1st Defendant Lucy Wanjui Gatiba and she averred that she was one of the administrators of the late Philip Gatiba Buruno who died on 3/12/2016. 7. The Defendants’ position is that the portion of the suit property being claimed was gifted to the 2nd Defendant and the late Philip Gatiba Buruno by her father inlaw being a subdivision of Kiambaa/ Kihara/ 455 by her father-in-law who conrmed the gifting in writing vide an Agreement dated 20.10.1982. That the actual subdivision was done in 1990 and individual Titles processed in 2014 as evidenced vide annexure “LWG-3, 4 and 5” which are the agreement, mutation and the title. 8. That since the deceased and herself resided on the suit property with the children since 1971 then the suit property is matrimonial property as dened under the Matrimonial Property Act and also Section 93(2) of the Land Act became applicable in disposal of the same. 9. The 1st Defendant avers that the Plainti is a person unknown to her and that this being a sale of matrimonial property she never signed any sale agreement on 14/02/2014 nor gave any consent for sale https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18663/eng@2025-10-27 2

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of the suit property. Further that she was not aware of any of the claims until ling of this suit which came after the Court had conrmed the Grant. 10. It is the contention of the 1st and 2nd Defendants that there is no proof of payment of the purchase price and that the signature on the sale agreement and transfers seem to be superimposed and fake. At the same time that there were cautions on the suit property and the Plainti went ahead to transact knowing there was a caution on the land. 11. That whereas the Plainti claims to have orders from Court for removal of the caution but the Defendants aver that they were never served with of Kiambu Miscellaneous Application No. E00I of 2021 since she learnt of it while prosecuting the Summons for Revocation in Kikuyu and neither the 1st nor 2nd Defendants were parties in the said application. 12. She also stated that the allegation that the deceased handed over the Original Title to the Applicant is false and that the deceased’s original Titles were lost and this was reported and so the Plainti’s claim that he is in possession of the said original document is testimony that the same was stolen at the demise of her husband. She has attached a copy of the inventory taken at the house of the deceased marked as ‘LWG-7’. 13. The Defendants further aver that the Plainti has not demonstrated a prima facie case against the Defendants to warrant the grant of a temporary injunction. 14. In response the Plainti led a Supplementary Adavit sworn on 7/03/2025 and reiterated his claim. It is the Plainti’s contention that the deceased Philip Gatiba Buruno owned several parcels of land and that the Defendants are only keen on frustrating the agreement for sale relating to his land. He has annexed a letter marked as ‘PNT1’ from the Ministry of Interior attesting to this fact. 15. The 3rd Defendant did not le any response to the Application. 16. The Applicant led written submissions dated 28/03/2025 to ventilate his position. The 1st, 2nd and 3rd Defendants did not le any submissions. The submissions of the Applicant reiterate the facts as set out in the Adavit which are mainly not disputed. The Plainti in his submissions have submitted on the applicable law and referred the Court to various authorities in support of their propositions. As submitted by the Plainti the main issue for determination in this application is whether the Plainti has met the test for the grant of a temporary injunction pending the hearing and determination of the suit as established in the case of Giella –vs- Cassman Brown (1973) EA 358. The Court in the case laid down the conditions that an Applicant required to satisfy in order to obtain an order of temporary injunction thus:- 17. i. An Applicant must show a prima facie case with a probability of success; ii. An injunction will not normally be granted unless the Applicant might otherwise suer irreparable injury; iii. When the Court is in doubt, on the balance of convenience. The Plainti has submitted that he has demonstrated he has a prima facie case that has a probability of success, it is the Plainti’s contention that he bought the suit property from the deceased Philip Gatiga Buruno who even signed the transfer but passed on before the transfer was executed. He avers to have paid the entire purchase price. The Plainti relies on the case of Mrao Limited -vs- First American Bank https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18663/eng@2025-10-27 3

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of Kenya Ltd & 2 Others (2003) KLR 125 where the Court of Appeal in considering what constitutes a prima facie case held thus:“ 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.” 18. The Plainti’s submission is that having fully satised and fullled his obligations under the agreement for sale he has established a right to have the suit property transferred to him since he owns it. 19. In the premises having regard to all the material placed before me I am not satised the Plainti has demonstrated a prima facie case with a probability of success. On the issue whether or not the Plainti would suer irreparable damage if the temporary injunction sought is not granted, I am not persuaded that the Plainti would suer any damage that cannot be compensated in monetary award. The value of the subject property could be easily ascertained by a valuer if the need arose. 20. Apart from the Plainti having identied the subject property and purchased it there is nothing else that is unique that is associated with the property that would make the property so treasured to the Plainti that the Plainti would suer irreparable damage if the property was lost. No doubt within the Kiambaa area one would nd similar properties being sold though they could be in dierent locations. It is note-worth that the Plainti has pleaded for a refund of the purchase price which is an alternative and this in my view is a clear indication that the Plainti acknowledges that a refund would be an adequate compensation inspite of not perhaps being the preferred remedy. Thus, I hold that the Plainti would not suer any irreparable harm and any damage suered would be compensable in the refund. 21. Having held that no prima facie case has been established and that a refund with interest would be an adequate remedy I need not consider where the balance of convenience would lie. The upshot is that I nd the Plainti’s application for injunction dated 30/08/2024 to be without merit and the same is dismissed with costs in the cause. 22. Pre-trial Conference on 8/12/2025. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 27TH DAY OF OCTOBER, 2025. .......................... MOGENI J JUDGE In the presence of:Mr. Simiyu for the Plainti Mr. J. Mugo for 1st and 2nd Defendants 3rd Defendant - Absent Mr. Melita – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18663/eng@2025-10-27 4

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