Braken Agricultural Limited v Tana and Athi Rivers Development Authority

2. i. Braken A – 8327 Acres under the name of Peter Paul Nkonge Kirigua registered on 15/8/2022 as presentation Number 1077 Volume D1, Folio 277/2735 and File Number MMXXI; ii. Braken B – 8327 Acres under the name of Patrick Mwenda Ntika registered on 15/8/2022 as presentation Number 1079 Volume D1, Folio 278/2737 and File Number MMXXII; and iii. Braken C – 8327 Acres under the name of Paul Wanderi Ndungu registered on 15/8/2022 as presentation Number 1078 Volume D1, Folio 277/2736 and File Number MMXXII. 6. Spent. 7. That pending the hearing and determination of this suit a mandatory injunction be issued compelling the Defendant/respondent either by itself or its agents, servants and or employees or anyone duly authorized by them or claiming under them to continue meeting their obligations under the lease dated 10/9/2015 registered as IR 152049/2 on 22/10/2015; 8. That pending the hearing and determination of this suit a mandatory injunction be issued compelling the Defendant/respondent either by itself or its agents, servants and or employees or anyone duly authorized by them or claiming under them to continue meeting their obligations under the special use licenses dated 29/7/2022 issued under the lease dated 10/9/2015 and registered as IR 152049/2 on 22/10/2015 against LR No. 28026 (IR No. 152049), as listed herein below: i. Braken A – 8327 Acres under the name of Peter Paul Nkonge Kirigua registered on 15/8/2022 as presentation Number 1077 Volume D1, Folio 277/2735 and File Number MMXXI; ii. Braken B – 8327 Acres under the name of Patrick Mwenda Ntika registered on 15/8/2022 as presentation Number 1079 Volume D1, Folio 278/2737 and File Number MMXXII; and iii. Braken C – 8327 Acres under the name of Paul Wanderi Ndungu registered on 15/8/2022 as presentation Number 1078 Volume D1, Folio 277/2736 and File Number MMXXII. 9. That the Ocer Commanding the Station (OCS) Gamba Police Station or any other police ocer of equal or superior ranking from any other police station do oversee compliance of the orders; 10. …………Spent; 11. That pending the hearing and determination of this suit, the Honourable Court be pleased to issue an order of inhibition restraining any further dealings, registrations, or transactions over the parcel of land known as LR No. 28026, held under Grant No. IR 152049, until the expiration of the lease dated 10/9/2015 and/or any renewals thereof pursuant to clause 5 (b) (i) and (ii) of the said lease; 12. That the cost of the application be borne by the Defendant/respondent. The application is premised on the grounds set out therein and supported by the adavit of Peter Paul Nkonge Kirigua, a director of the Plainti, sworn on 31/10/2024. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18719/eng@2025-06-17 2

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3. The Plainti’s case is that the Defendant is the registered owner of some 25, 875 hectares of land situated on the east of Kibisu area in Tana River County, and held under the Grant No. IR 152049, LR. No. 28026 (hereinafter also referred to as “the suit property”). That following a tender advertisement by the Defendant, the Plainti leased 10,000 hectares of the said land, resulting to a lease agreement dated 10/9/2015, for a term of 15 years from 31/10/2014. On 29/7/2022 the parties then entered into Special Use Licenses to allow the three directors of the Plainti to expand the scope of their operations within the suit property, in particular, each director was to utilize 8327 acres each. The said licenses were designated as Braken A, B and C as seen in prayer 5 and 8 above, and operated under similar terms as those in the lease. 4. On 17/1/2024, the Defendant issued a revocation letter to the Plainti, revoking the licenses on the ground that the Plainti had failed to comply with payment of the license fees. As a result, vide a letter dated 4/9/2024, the Defendant demanded that the Plainti surrender the lease. The director stated that all this happened despite the Plainti having repeatedly asked the Defendant to provide all the necessary invoices for payment of the license fees. He added that the notice was short of the 30 days required under the licenses and lease. The director added that the Defendant cannot seek to terminate the lease on grounds of breach when it was the party in default for failing to grant the Plainti peaceful and quiet possession of the suit property. He added that the Plainti has incurred signicant nancial expenditure in preparation for rice production on the suit property, including payment of rent amounting to Kshs. 30,000,000/- and failure to grant the orders sought will occasion the Plainti undue hardship. 5. In response, the Defendant led a Replying Adavit sworn by Irene Ndavi, a director at the Defendant Authority, on 25/11/2024; and a notice of preliminary objection dated 22/11/2024 premised on the following grounds: 1. That the present suit ELC Case No. E114 of 2024, is barred under section 6 of the Civil Procedure Act, Cap 21, Laws of Kenya, as there exists a prior suit, ELC Case No. E099 of 2024 Braken Agricultural Limited t/a Gamba Rice Company Limited alias Gamba Company Limited v Tana and Athi Rivers Development Authority, led by the Plainti against the Defendant over the same subject matter, being property belonging to the Defendant situated in Tana River County (LR No. 28026), and involving the same parties; 2. That the ling of this suit while ELC Case No. E099 of 2023 is still pending before this honourable court amounts to an abuse of the court process, contrary to the overriding objective of the Civil Procedure Act to ensure the just, expeditious, and ecient resolution of disputes; 3. That the existence of multiple suits over the same subject matter and parties is prejudicial to the Defendant and contrary to public interest, as it creates unnecessary duplication of judicial resources and risks inconsistent rulings. 6. The Defendant urged the court to strike out the present proceedings pending the determination of ELC No. E099 of 2024, and the costs of the present application be awarded to the Defendant. 7. Both the application and Preliminary Objection were heard together by way of written submissions, it is pertinent therefore that I rst reproduce the contents of the replying adavit. 8. According to the Defendant’s director, Ms. Irene Ndavi, the application and suit are an abuse of the court process and the allegations raised are unfounded and untrue. She deposed that the Plainti is in breach of the lease dated 10/9/2015, by failing to fulll certain conditions indicated in their expression of interest (EOI) dated 22/7/2014. Those conditions include construction of ood protection dykes, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18719/eng@2025-06-17 3

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irrigation canals and drainage structures; carry out on farm works to open up 10,000 Ha on the new area sited for leasing; crop production management and daily operations of the leased area; and technology transfer in rice production. 9. It is further deponed that the Defendant expressed its concern to the Plainti vide a letter dated 8/12/2015 about its inaction on the suit property, a letter which was not responded to. Resultantly, on 28/1/2016, the Defendant instructed its advocates to discharge the lease for the aforestated failure and for failure to pay arrears due of Kshs. 21,000,000/-. Thereafter, a series of correspondence ensued between the parties, and on 19/4/2017, the Defendant issued a termination letter terminating the lease for breach of fundamental clauses; that as at that time, the Plainti was in arrears of Kshs. 60,000,000/-. She added that the Defendant granted the Plainti ample opportunities to rectify its breach but to no avail. She averred that based on the foregoing and paragraph 6 (b) of the lease, the lease has since been terminated and is now void. 10. According to the deponent, the terms of the special use licenses as admitted by the Plainti, were a replica of the lease meaning that the Plainti was not to deviate from the purpose of the lease, being production of rice, and such deviation rendered the licenses void. She added that the Plainti also failed to make payment of the license fees as agreed prompting the Defendant to issue termination notices. She stated that the clause 6 and 7 of the licenses contain the amount to be paid, bank account details and payment due date. 11. The deponent asserted that it is in the public interest that the portion of the government land in custody of the Plainti under lease and license be released to the Defendant for utilization to meet the national agenda on food security. Plainti ’s Submissions in Opposition to The PO. 12. Relying on the denition and discussing what entails a preliminary objection, set out in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors [1969] EA 696; and Oraro v Mbaja [2005] 1 KLR 141, counsel submitted that the points raised should be purely on law and that it cannot be raised if certain facts have to be ascertained or where the court is called upon to exercise judicial discretion. To him, the Defendant had not met the criteria to establish a preliminary objection as raised under section 6 of the Civil Procedure Act. He added that for the Court to determine whether the issues in the instant matter and in ELC E099 of 2024 are the same, it will require to look at evidence. Counsel submitted that the Plainti has never traded as Gamba Rice Company Limited and that the parties in the two suits are dierent and distinct. To support these arguments, counsel relied on the case of Margaret Wachu Karuri v John Waweru Ribiro [2021] KEELC 2793 (KLR); and Styles Industries Limited v KRA & another HCCOM No. 75 of 2019. 13. Counsel added that the suit property in ELC NO. E099 of 2024 is not part of the lease agreement dated 15/9/2015 or the special use licenses; that the suit property in the former suit pertains to a special license agreement dated 22/12/2021 between Gamba Rice Limited and the Defendant for a total of about 3122 acres. 14. In the ultimate, counsel urged the Court to dismiss the PO and award costs of the same to the Plainti. Plainti ’s Submissions in Support of Their Application 15. Counsel identied three issues for determination- whether the Plainti is entitled to a prohibitory and mandatory injunction sought; whether the Plainti is entitled to an order of inhibition; and who is to bear the costs of the application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18719/eng@2025-06-17 4

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16. To demonstrate the principles an applicant must show in order be granted an injunction, counsel relied on Order 40 (1) of the Civil Procedure Rules and the cases of Giella v Cassman Brown & Company Limited [1973] EA 358; the denition of a prima facie case outlined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others Civil Appeal No. 39 of 2002; Robert Mugo wa Karanja v Ecobank (Kenya) Limited & Another [2019] eKLR. 17. Counsel urged the court to take into account that as a registered Lessee, the Plainti has rights that are likely to be violated by the Defendant, and has raised issues surrounding the Defendant’s conduct seeking to cancel the lease and license which ultimately expose the Plainti to the threat of eviction, despite the substantial investments made on the suit property and its intention to fulll its obligations. Counsel further relied on the case of Siskena 1977 All ER at page 824. 18. On whether the court should grant orders of inhibition, counsel explained that the purpose of an inhibition order envisaged under Section 68 of the Land Registration Act, is to prevent any further dealings on the suit property pending the occurrence of a certain event, for a given period of time so as to preserve the suit property, as was discussed in Embu ELC No. 324 of 2015 Dorcas Muthoni & 2 Others v Michael Ireri Ngari [2016] eKLR. 19. He added that the conditions to be fullled were set out in the case of Japheth Kaimenyi M’Ndatho v M’Ndatho M’Mbiria [2012] eKLR as that the suit property is at risk of being disposed to the detriment of the applicant, that the refusal to grant an inhibition order would render the suit nugatory, and that an applicant has an arguable case. To him, the Plainti had satised all the three conditions and that the Defendant stands to suer no prejudice should the inhibition order be granted. 20. Counsel urged the court to award costs to the Plainti and relied on Section 27 of the Civil Procedure Act and the case of Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 Others [2013] eKLR. Defendant’s Submissions 21. In support of the preliminary objection, counsel submitted that multiplicity of actions on the same subject matter between the same parties even where there exists a right to bring action is regarded as abuse of the court which is an obstacle to the ecient administration of justice. Counsel relied on section 6 and 8 of the Civil Procedure Act, Order 2 Rule 15 (1) (d) of the Rules thereto and the cases of KNCHR v AG; IEBC & 16 Others (Interested parties); Petition No. 156 of 2018 Okiya Omtatah Okoiti v The CS, National Treasury, Ministry of Information, Communications & 6 Others; Kombo & 19 Others v Ngilu & 3 Others (Suing as the personal representative of the Estate of Michael Mwendwa Ngilu) [2024] KEELC 13279 (KLR); and Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [2017] eKLR. 22. In opposition to the Plainti’s application, counsel submitted that the special use licenses are void and unenforceable for reasons that once the lease was signed, the rights of the Defendant were limited as provided by dint of the Land Act and the lease, such that the Defendant could not divest its interest further in the suit property, by issuing licenses to third parties. 23. Counsel further submitted that injunctive relief is an equitable remedy that requires clear and convincing evidence to demonstrate irreparable harm, a prima facie case and balance of convenience, which to him, the Plainti had not demonstrated. To this end, he relied on the case of Kinyanjui & 16 Others v National Environment Management Authority & 3 Others (Environment and Land Appeal E036 of 2024) [2024] KEELC 7271 (KLR), and Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18719/eng@2025-06-17 5

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24. To counsel, the Plainti has to come to a court of equity with utmost good faith, but having failed to do so, it cannot be entitled to orders of injunction as prayed. He added that under Section 23 (1) (b) of the Land Act, quiet possession can only be availed to a party upon full compliance of the terms of the lease, and that the same cannot be available to a defaulter. 25. Further citing the case of Peter Kairu v KCB Bank Kenya Limited & Another HCCC No. E261 of 2020, counsel argued that the Plainti has failed to provide sucient evidence to demonstrate that the suit property is at the risk of being wasted, damaged, or alienated by any party to the suit, and that it would suer irreparable loss. Counsel added that the Plainti’s persistent non-performance undermines the credibility of their claims and weakens their position in seeking equitable reliefs. 26. Counsel added that, for the reason that the Plainti has failed in production of the rice as intended, it would be against public interest if the injunctions sought are granted. That the government’s liability to achieve food security, which is 10 years late, would be severely hindered. Such a scenario, counsel submitted, will not only jeopardize the government’s scal for loss of rent and lack of eciency but also impact on capacity in achieving food security and costs for recovery of the food agenda. He relied on the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR. 27. Lastly, counsel urged the Court to award costs to the Defendant and was guided by the cases of Peter Kairu v KCB Bank Kenya Limited & Another [supra] and Kombo & 19 Others v Ngilu & 3 Others (Suing as the personal representative of the Estate of Michael Mwendwa Ngilu) [supra]. Analysis And Determination 28. 29. I have considered the application and its supporting adavit, the response, preliminary objection and the submissions presented by parties, I am of the considered view that the following issues arise for determination: i. Whether the preliminary objection is merited; ii. Whether the court should grant an order of injunction restraining the Defendant from terminating the lease and revoking the special user licenses, pending the determination of the suit; iii. Whether, pending determination of the suit, a mandatory injunction should be issued compelling the Defendant to continue performing its obligations under the lease and licenses; iv. Whether an order of inhibition should be granted restraining any further dealings on the suit property. On what constitutes a Preliminary Objection, the Supreme Court in the case of Hassan Ali Joho & Another v Suleiman Said Shabal & 2 others Petition No. 12013[2014] eKLR, restated the denition in the case Mukisa Biscuit Manufacturers Ltd v West End Distributors Ltd (1969) EA where the Court of Appeal said that: “ …a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact need to be ascertained or if what is sought is the exercise of judicial discretion.” 30. The Defendant contended that the present suit is related to another suit led before this court- ELC Case No. E099 of 2024 Braken Agricultural Limited t/a Gamba Rice Company Limited alias Gamba https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18719/eng@2025-06-17 6

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Company Limited v Tana and Athi Rivers Development Authority - in which the Plainti has raised similar issues against the Defendant herein. 31. Section 6 of the Civil Procedure Act provides that: “ No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 32. I am of the view that in assessing whether the sub judice rule has been oended, the court must engage with the substantive facts of the ongoing case, review the pleadings, and possibly interrogate them to determine the similarity of issues involved. This process inherently goes beyond the scope of a preliminary objection. I nd guidance in Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another (2014) eKLR, where the court pronounced itself as follows: “ The issues of res judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as Preliminary Objections because of the limited scope of jurisdiction on Preliminary Objections.” 33. The preliminary objection is thus dismissed for the foregoing reasons. 34. The principles of injunctions were enunciated in the case of Giella v Cassman Brown [supra] and were reiterated in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that: “ In an interlocutory injunction application the applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour. 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 states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially.” 35. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd [supra] gave a denition on what constitutes a prima facie case. The court stated that: “ ... 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 legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 36. In the instant case, there is no doubt that the parties herein were parties in a lease agreement dated 10/9/2025 and special use licenses dated 29/7/2022 as listed herein below: i. Braken A – 8327 Acres under the name of Peter Paul Nkonge Kirigua registered on 15/8/2022 as presentation Number 1077 Volume D1, Folio 277/2735 and File Number MMXXI; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18719/eng@2025-06-17 7

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ii. Braken B – 8327 Acres under the name of Patrick Mwenda Ntika registered on 15/8/2022 as presentation Number 1079 Volume D1, Folio 278/2737 and File Number MMXXII; and iii. Braken C – 8327 Acres under the name of Paul Wanderi Ndungu registered on 15/8/2022 as presentation Number 1078 Volume D1, Folio 277/2736 and File Number MMXXII. 37. It is clear that the special licences were issued not to the plainti but to dierent persons who are not parties to the present suit yet the interests in the licences were apparently registered in their names. In the case led earlier in respect of the same land but concerning a dierent licence -ELC Case No. E099 of 2024 Braken Agricultural Limited t/a Gamba Rice Company Limited alias Gamba Company Limited v Tana and Athi Rivers Development Authority- the sole licencee was named as a party and the diculty of whether orders should be issued in favour of a non-party never arose in that case. 38. In the circumstances of the present case where it is admitted that the licences were in favour of three third parties, I am not convinced that the Plainti has demonstrated either standing or a prima facie case as described in the Mrao case [supra]. As established in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [supra], the three conditions to be met by an applicant in such an application, are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially. Therefore, having failed to demonstrate a prima facie case, I see no basis to exercise my mind on the remainder two conditions, that is irreparable loss and balance of convenience. Consequently, I decline to grant the prayer for injunction sought in the application. Further also, all the other prayers in the application are rejected on the basis of the same reasoning given in ELC Case No. E099 of 2024 Braken Agricultural Limited t/a Gamba Rice Company Limited alias Gamba Company Limited v Tana and Athi Rivers Development Authority regarding similar prayers. 39. The outcome is that the Notice of Motion application dated 31/10/2024 is devoid of merit. It is thus dismissed with costs. DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 17TH DAY OF JUNE 2025. MWANGI NJOROGE JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18719/eng@2025-06-17 8

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