Musa

4. The applicant avers that the dispute resulted in Tribunal Case Number 6 of 2010, where the decision was in favor of the late Ernest, who secretly approached the Kwanza Land Disputes Tribunal for a hearing, and the late Musa was condemned unheard since he was not notied about the case. 5. The applicant also deposes that she has demonstrated a prima facie case and stands to suer great loss and damage, due to the respondent’s continued interference with the suit parcel; hence, the orders sought should be granted, which will not prejudice the respondent in any way. 6. In further grounds adduced in her adavit, the applicant avers that in her plaint, she is seeking for orders that; the late Musa was the legal owner of the suit land; that the respondents are trespassers; an eviction order to issue; permanent injunction and for cancellation of entries in the land records; for the land to revert to the late Musa and a declaration that the undated tribunal award and decree in Kitale CMCC No.11 of 2010 were null and void. 7. The applicant avers that while his supporting ownership documents are pending at the Land Adjudication Department, the respondent intends to dispose of the suit parcel to buyers who have already visited the site, following her transfer of the land into her name despite the pending suit. The applicant deposes that she has brought the application in good faith, the case has high chances of success, and the balance of convenience tilts in her favour. 8. The application is opposed through a replying adavit sworn by Janet Ndunge Mutiso on 7/4/2025. She terms the application as bad in law; misconceived, incompetent, lacking merits, fatally defective, and that it does not meet the threshold of granting a temporary or a permanent injunction. The respondent avers having been in possession, occupation, and use of the suit parcel since 1984, upon purchase by her late husband. That neither the applicant nor her late husband has ever been to or used the suit parcel. 9. Further, the respondent avers that if the prayers sought are granted, they will disrupt the status quo, which has been prevailing since the suit was led and is only meant to delay the suit. The respondent deposes that she has no intention of disposing of the suit parcel, since it is her only source of income. 10. The principles for granting an injunction were set out in Giella -vs- Cassman Brown & Company Limited (1973) EA 358, that: “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 harm which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.” 11. In Mrao Ltd -vs- First American Bank of Kenya Ltd & 2 others [2003] eKLR, the court held that a prima facie case is one in which on the material presented to the court or 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. 12. Irreparable loss and damage are dened as that which is not capable of quantication in monetary terms. It must be real, actual, imminent, and apparent. Speculative fear or apprehension is not enough, as held in Nguruman Ltd -vs- Jan Bonde Neilsen & 2 Others [2014] eKL. In this application, the applicant alleges that the respondent is in the process of disposing of the suit parcel to third parties. 13. In the plaint dated 2/10/2023, the applicant has particularized the allegations of fraud leading to the changes in the land records, which she has prayed for cancellation. The applicant thus avers that the estate of the late Musa Kanda shall suer irreparable loss of the suit land and the developments he had put up thereon. The Court of Appeal in Nguruman Limited -vs- Jan Bonde Nielsen (supra) held that, if an applicant establishes a prima facie case, that alone is not sucient basis to grant an interlocutory https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18738/eng@2025-07-30 2

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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 are 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 a prima facie case is not established, then irreparable injury and balance of convenience need no consideration. 14. In this application, the applicant has not supplied any documents to show that the letter of oer was perfected. The respondent is the one who has been in occupation since 1984. I think the court should take the lower risk of injustice, which favors the maintenance of the existing status quo to last for one(1) year only. 15. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 30TH DAY OF JULY 2025. In the presence of: Court Assistant- Dennis Kemboi for plainti present Chebii for defendant absent HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18738/eng@2025-07-30 3

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